Russell Tilden

The self-represented plaintiff brought an action on behalf of himself and two minor children against the lawyers and insurance company that represented the opposing party in previous litigation.

The defendants brought a motion to dismiss the claim for lacking a cause of action.

The plaintiff agreed to dismiss the claim prior to the hearing.

The court dismissed the entire action, including the claims purportedly brought on behalf of the minors without a litigation guardian, on consent and without costs.

The appellants appealed the dismissal of a third party claim arising from a tug-of-war injury.

The plaintiff was severely injured during a recreational tug-of-war at a campground when his arm became caught in a loop in the rope, resulting in amputation of his forearm.

The appellants sought contribution and indemnity from the third parties who participated in the game.

The motion judge dismissed the third party claim, finding that the third parties owed no duty of care to the plaintiff.

The Court of Appeal upheld the dismissal, holding that the third parties did not fall within any of the circumstances that would impose a positive duty to act, and that the injury was not a reasonably foreseeable result of participation in a recreational tug-of-war game.

Following the successful summary judgment motions by six third parties dismissing the third party claims against them, the court determined the costs to be awarded.

The defendants argued that costs for a prior summary judgment motion and an appeal should not be included.

The court found that the preparation for the prior motion and attendance at the appeal were incidental to the third party claims and awarded costs on a partial indemnity scale, rejecting a request for substantial indemnity costs.

The defendants in a personal injury action arising from a recreational tug-of-war game brought a third-party claim for contribution and indemnity against several other participants in the game.

Six of the third parties moved for summary judgment to dismiss the claim against them.

The court applied the Anns/Cooper test and found that the participants did not owe a duty of care to the plaintiff, as they did not organize the event, create the risk, or have a special relationship requiring them to take positive action to prevent injury.

The court granted the motions and dismissed the third-party claims.

Following the dismissal of the plaintiffs' personal injury action on summary judgment, the court determined the costs payable.

The defendants sought costs from the plaintiffs and argued the plaintiffs should also be liable for the costs of the third parties, whom the defendants had joined.

The court applied the general rule that an unsuccessful plaintiff is not responsible for the costs of third parties they did not sue, finding no exceptional circumstances to depart from this rule.

The plaintiffs were ordered to pay the defendants $44,000 in partial indemnity costs, while the defendants were ordered to pay the full costs claimed by the various third parties, totaling over $133,000.

During a civil jury trial, the plaintiffs sought leave to argue that the jury could draw an adverse inference from a defendant's failure to testify.

The court held that the defendant's non-attendance had been adequately explained by his incarceration in another province and that inviting such an inference would be misleading.

The plaintiffs were permitted to comment on the absence of supporting evidence from the defendant on specific factual issues, but not to suggest that his evidence would have been detrimental to the defence.

The adverse inference issue was not left with the jury.

On a trial motion, the defendants objected to evidence that one defendant apologized after an explosion causing burn injuries.

The court held that the Apology Act, 2009 did not apply retroactively to an apology allegedly made in 2006, before the statute came into force.

Applying the presumption against retroactive legislation, the court found the Act was directed to the making of apologies, not merely the future admissibility ruling at trial, and that retroactive application would alter the legal effect of a past event and potentially remove substantive insurance-related defences.

The apology evidence was therefore admissible.