Sean Van Helden

The plaintiffs sued multiple defendants over a property dispute involving a cottage, a right of way, and claims for damages due to negligence and adverse possession.

The court found Robert Moore negligent for a mudslide damaging the plaintiffs' outhouse and Howard Moore liable for exacerbating damage and spoliation of evidence.

However, the plaintiffs failed to establish adverse possession over the disputed land, as they could not prove intent to exclude the true owner or effective exclusion.

The court awarded modest damages against Robert Moore and Howard Moore, but dismissed the adverse possession claim.

The defendants brought a motion for security of costs against the plaintiff, an American actress residing in California with no assets in Ontario, who sued for injuries sustained from a dog bite on a film set.

The plaintiff opposed paying security into court, arguing that her After-The-Event (ATE) legal expenses insurance policy provided adequate protection for the defendants' costs.

The court held that the specific ATE policy, which covered costs up to the date of any cancellation and was supported by counsel's undertaking to advise of any policy suspension, was an adequate substitute for payment into court.

The court exercised its discretion to accept the ATE policy as security for costs.

The Wylie and Porsche defendants sought costs of an action and a proposed summary judgment motion after being released from a three-vehicle collision lawsuit.

The court declined to award costs to the defendants, finding their conduct unreasonable, particularly in rejecting a late but reasonable acceptance of their offer to exit without costs, and in seeking costs for a non-existent summary judgment motion.

The court also criticized the unnecessary level of moral outrage and lack of civility in pursuing the motion.

The defendants, a church and its lead pastor, sought leave to appeal an order dismissing their motion to strike the plaintiffs' claim against the pastor in his personal capacity.

The plaintiffs had sued the defendants for negligent misrepresentation, breach of fiduciary duty, breach of contract, and negligence regarding an unregistered educational program run by the church.

The court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's decision because the statement of claim did not specifically plead a separate claim against the pastor in his personal capacity, contrary to established case law.

The defendants brought a motion under Rule 21.01(1)(b) and (d) of the Rules of Civil Procedure seeking to strike the claim against an individual pastor on the basis that the statement of claim disclosed no reasonable cause of action against him personally.

The action alleged that a church-operated homeschooling program misrepresented its educational status, causing the plaintiffs' child to lose years of recognized schooling.

The moving party argued that the individual pastor acted only within his corporate capacity and could not be personally liable.

The court held that, reading the pleadings generously and assuming the facts to be true, the claim alleged potential independent tortious conduct and a fiduciary relationship between the pastor and the plaintiffs.

It was therefore not plain and obvious that the claim against the individual disclosed no reasonable cause of action.

The defendants brought a motion to compel the plaintiff to answer questions refused at discovery and to produce the legal file of his former lawyers.

The action was commenced more than two years after the motor vehicle accident, raising a limitation period defence.

The defendants argued the plaintiff waived privilege over the file by referencing his former lawyers' advice in a letter to his insurer, and that the file was relevant to the discoverability of his claim.

The court found that while the entire file need not be produced, the plaintiff must disclose information from the file regarding advice on obtaining medical opinions and steps taken to manage the file, as this was relevant to testing his due diligence.

On a motion for security for costs, the moving defendant argued that Manitoba-resident plaintiffs should post security despite their purchase of adverse costs insurance.

The court held that the insurance policy was not equivalent to payment into court because coverage could be terminated and the proceeds could not be assigned, although the existence of the policy remained a mitigating factor.

Applying the justice-based inquiry under Rule 56.01, the court found the claim had some merit, the plaintiffs were financially constrained, and one plaintiff was a victim of criminal assaults arising from the same events.

In light of s. 4(2) of the Victims Bill of Rights and the circumstances as a whole, the motion was dismissed, subject to an order requiring notice if the policy was cancelled.

The plaintiff was injured when an employee of the defendant nightclub negligently discharged a firearm.

The plaintiff sued the nightclub for vicarious liability and breach of the Occupier's Liability Act.

The nightclub's insurer refused to defend the action, relying on a policy exclusion for bodily injury arising out of the ownership or use of a gun.

The nightclub brought a motion to compel the insurer to defend the action.

The court granted the motion, finding that the claims in negligence and under the Occupier's Liability Act were not entirely derivative of the excluded conduct, and that the exclusion clause was ambiguous as to whether it applied to all insureds or only the one who committed the excluded act.

The plaintiff contractor brought a motion to amend its statement of claim to remove references to the Construction Lien Act and proceed on a breach of contract basis after its construction lien had previously been vacated as out of time.

The defendants opposed the amendment and brought a cross-motion seeking dismissal of the action for delay under Rule 24.01 of the Rules of Civil Procedure.

The court held that the original statement of claim already implicitly advanced a contractual claim and that the order vacating the lien did not determine the contractual issues.

Although the action had experienced significant delay and periods of inactivity, the court found the delay sufficiently explained and not prejudicial to a fair trial.

The plaintiff was permitted to amend the pleadings and the defendants’ cross-motion for dismissal was dismissed.

The plaintiff insurer made payments to its insured for property damage and to a third party for bodily injuries following a motorcycle collision.

The insurer then sued its insured to recover both payments, alleging a breach of the insurance policy.

The insured brought a motion to strike the claim regarding the third-party payment.

The court granted the motion, finding that under the Insurance Act, an insurer cannot sue its insured for reimbursement of a third-party settlement without a prior judgment against the insured, an express reimbursement agreement, or an assignment of the third party's cause of action.