Trevor J. Buckley

The defendant Unifund brought a motion to strike the statement of defence of the third party for failing to attend an examination for discovery despite multiple notices and a prior court order.

Counsel for the third party argued they had been unable to contact their client.

The court criticized the delay and lack of effort to locate the third party, ordering counsel to retain an investigator and produce the third party for discovery by August 30, 2022, failing which counsel must move to be removed from the record and Unifund may renew its motion to strike.

Costs of $1,000 were awarded to Unifund.

Following the dismissal of the plaintiff's motion to extend the time for setting the action down for trial and the subsequent dismissal of the action for delay, the court determined the costs payable to the defendants.

The court rejected the plaintiff's argument that no costs should be awarded, emphasizing the principle of indemnity and the significant defence costs incurred.

Costs were awarded to the defendants on a partial indemnity scale, with the primary private sector defendant receiving the largest share due to its robust defence of its licensed operations.

The plaintiff brought a motion to extend the time under Rule 48.14 to prevent the automatic dismissal of his action for delay.

The action, commenced in 2013, alleged that the defendants caused artificial flooding on his property.

The court found that the plaintiff failed to provide a reasonable explanation for the delay in advancing the litigation, noting that the outstanding summary judgment motion did not prevent the plaintiff from setting the matter down for trial.

The motion for an extension of time was dismissed, and the action was dismissed for delay.

This was a costs endorsement following an insurance coverage trial in which the defendant insurer was successful in having the first action dismissed entirely.

The court held that costs were to be fixed under s. 131 of the Courts of Justice Act and r. 57.01(1) of the Rules of Civil Procedure, guided by fairness, reasonableness, indemnity, reasonable expectations, and the complexity and importance of the issues.

Although the insurer’s bill included work relating to a second action and an earlier related action, the court found 65% of the total bill properly attributable to the first action.

No additional deductions were warranted for an unproceeded summary judgment motion, settlement with the receiver, or an expert report.

Costs of $179,372.03 inclusive of HST and disbursements were awarded on a partial indemnity scale.

The plaintiffs brought two actions against their insurer for business interruption and property losses following an Indian meal moth infestation and the subsequent receivership of related companies.

In the first action, the court found the claimed losses were not 'direct losses' under the policy and that the receivership was not a covered peril.

In the second action, the court held that the property loss claim was barred by the one-year contractual limitation period, but the rolling business interruption claim beginning one year before the action was commenced could proceed.

The court granted the plaintiffs relief from forfeiture for inadequate proofs of loss and dismissed the insurer's abuse of process and vitiation defences.

The plaintiffs brought a motion to set aside a registrar’s order dismissing their personal injury action as abandoned under former Rule 48.15 of the Rules of Civil Procedure.

The action arose from a motor vehicle collision and had been dismissed after no defence was filed within the prescribed period.

Applying the contextual approach endorsed in Scaini v. Prochnicki and subsequent appellate authority, the court considered the Reid factors, including explanation for delay, intention to proceed, promptness of the motion, and prejudice to the defendants.

Although the plaintiffs’ explanation for delay and the timing of the motion were unsatisfactory, the registrar’s dismissal occurred before the required 45‑day notice period expired, constituting an irregularity.

The court also found no significant prejudice to the defendants and emphasized the policy favouring determination of disputes on their merits.