James Page

Following a motor vehicle accident trial where the plaintiffs' claims were effectively dismissed after a threshold motion, the defendants sought costs of $275,259.55 on a partial and substantial indemnity basis.

The court held that Rule 49.10 did not apply since the action was dismissed, and substantial indemnity costs were not warranted as there was no reprehensible conduct by the plaintiffs.

The court awarded partial indemnity costs to the defendants, reduced by 20 percent to account for the principal plaintiff's financial hardship.

No costs were awarded against the derivative Family Law Act claimant.

The defendant in a personal injury action brought a motion to stay an order striking out the parties' jury notices pending her appeal.

The trial was scheduled to proceed before a judge alone due to COVID-19 pandemic delays affecting civil jury trials.

Applying the RJR-MacDonald test, the motion judge found that the appeal lacked merit as the order was likely interlocutory, the defendant would not suffer irreparable harm, and the balance of convenience overwhelmingly favoured proceeding with the long-delayed trial.

The motion for a stay was dismissed.

The plaintiff brought a motion to strike the defendant's civil jury notice, arguing that the COVID-19 pandemic would cause a delay of 12 to 18 months if the matter proceeded before a jury.

The defendant opposed the motion, advocating for a 'wait and see' approach.

The court granted the motion, finding that the delay caused by the pandemic outweighed the defendant's right to a jury trial, and that justice would be better served by allowing the 10-year-old action to proceed more expeditiously before a judge alone.

The defendants brought a motion to dismiss the plaintiff's claim for non-pecuniary damages following a jury trial in a personal injury action.

The jury awarded general damages but zero for past income loss, future income loss, future housekeeping, and future healthcare costs.

The motion judge, exercising statutory duty to determine the threshold under s. 267.5(5)(b) of the Insurance Act, found that the plaintiff's impairments were not permanent, important, or serious.

The judge considered the jury's implied findings regarding the plaintiff's credibility and the non-permanence of injuries, preferring the defendants' medical expert evidence.

Consequently, the plaintiff's claim for non-pecuniary loss was dismissed.

The plaintiffs brought a motion to set aside a Registrar's order dismissing their action for delay under Rule 48.14(1).

The action arose from alleged environmental contamination by the defendants' dry cleaning operations.

The court applied the four-factor test for setting aside a dismissal order.

While finding no prejudice to the defendants, the court concluded the plaintiffs failed to adequately explain the litigation delay or their failure to meet the set down deadline.

Furthermore, the plaintiffs' claims were already preserved in a crossclaim in a related, more advanced action.

To avoid multiplicity of proceedings, the motion to set aside the dismissal was dismissed.