Dave Bily

On a Rule 21 motion, the third parties sought to strike a third party claim arising from successive motor vehicle accidents, arguing the claim was barred because the plaintiff's direct claim against them was statute-barred.

The court held it was not plain and obvious that the third party claim must fail, because the pleadings left open the possibility that the plaintiff's damages from the two accidents might be indivisible.

Relying on the jurisprudence addressing overlapping injuries and third party contribution and indemnity claims, the court held that whether the damages could be separated was a matter for the trial judge.

The court also agreed that s. 18 of the Limitations Act, 2002 governed the third party claim rather than the limitation period for a direct action by the plaintiff.

The motion to dismiss the third party claim was therefore dismissed with costs.

This costs endorsement followed an unsuccessful third-party summary judgment motion seeking dismissal of a third party claim arising from a motor vehicle accident.

The court held that, in the post-Hryniak environment, substantial indemnity costs under Rule 20.06 may be awarded where a party acts unreasonably in bringing or responding to a summary judgment motion, without requiring egregious or reprehensible conduct.

The motion was found unreasonable because its legal basis was misplaced and the evidentiary record disclosed conflicting evidence requiring a trial.

The successful responding defendants were awarded substantial indemnity costs of $6,497.50 inclusive of HST.