Michael C. Birnie

Following a decision on the merits, the court requested written submissions on costs.

The defendants submitted bills of costs, but the self-represented plaintiff failed to respond within the allotted time.

The court reviewed the bills of costs, found them reasonable given the complexity of the matter and the number of parties, and awarded costs to the Crown and the police defendants on a partial indemnity basis.

Following the successful dismissal of the self-represented plaintiff's action against 78 defendants, six groups of defendants sought costs on a partial indemnity scale.

The court considered the complexity of the claims, the plaintiff's mental health, and principles of proportionality and fairness.

The court reduced several of the costs claimed to ensure comparability and fairness, ultimately awarding a total of $71,000 in costs across the successful defendants.

Police defendants moved for summary judgment dismissing a civil action alleging multiple intentional torts and Charter breaches arising from arrests for criminal harassment.

The plaintiff had previously resolved the criminal charge by entering into a peace bond.

The court held that this outcome demonstrated reasonable and probable grounds for the police actions and prevented the plaintiff from establishing key elements of claims such as malicious prosecution and negligent investigation.

The pleadings also failed to disclose genuine issues for trial for other alleged torts including false arrest, false imprisonment, defamation, invasion of privacy, trespass to chattels, misfeasance in public office, and intentional infliction of mental distress.

Summary judgment was granted dismissing the action.

The insurer sought leave relating to a decision refusing to appoint an appraiser under the appraisal provisions of an insurance policy following a loss.

The court noted that the insurer had not demanded an appraisal until more than six years after the loss.

The court held that the appraisal provisions under the statutory conditions in s. 148 of the Insurance Act are not mandatory in multi‑period policies.

The motion judge’s refusal to appoint an appraiser was a discretionary decision and consistent with prior case law.

Leave was denied.

Following a successful motion by the plaintiff to set aside a registrar’s administrative dismissal of an action, the court addressed the issue of costs.

Although the plaintiff succeeded in reinstating the action, the court held that the defendants were entitled to their costs because the reinstatement constituted an indulgence and the defendants were not unreasonable in opposing the motion.

The court found that the defendants had legitimate grounds to resist reinstatement given the long delay and expiry of the limitation period.

The request for substantial indemnity costs was rejected, but the defendants were awarded partial indemnity costs.

The moving lawyer defendants sought to strike a self-represented plaintiff’s expansive civil action alleging conspiracy, malicious prosecution, abuse of process, Charter breaches, defamation, and other torts arising from criminal proceedings and child protection litigation.

The court held that the statement of claim lacked material facts linking the lawyer defendants to the alleged misconduct and improperly attempted to relitigate criminal convictions and child protection determinations.

Many claims were also barred by the two‑year limitation period under the Limitations Act, 2002.

The court found the pleadings vague, speculative, and abusive, failing to establish recognized causes of action or the elements of torts such as conspiracy, malicious prosecution, defamation, or abuse of public office.

The action against the four lawyer defendants was struck or dismissed without leave to amend.

The moving party police association brought a motion seeking dismissal of a civil action against it on the basis that the claims were statute‑barred, disclosed no reasonable cause of action, and were frivolous and vexatious.

The self‑represented plaintiff had sued numerous defendants, including police, government officials, and agencies, alleging false arrest, malicious prosecution, conspiracy, Charter breaches, and related torts over a lengthy period.

The court held that most allegations against the association were barred by the two‑year limitation period under the Limitations Act, 2002.

The remaining allegations failed to disclose material facts capable of establishing any recognized cause of action against the association.

The pleadings were struck and leave to amend was denied.

The plaintiff commenced an action for damages arising from a workplace slip and fall.

The action was administratively dismissed for delay after the plaintiff's lawyer inadvertently missed a deadline and failed to receive the status notice.

The plaintiff brought a motion to set aside the dismissal.

The court found that while the plaintiff failed to satisfactorily explain the delay, her lawyer's inadvertence, the promptness of the motion, and the complete lack of significant prejudice to the defendants justified setting aside the dismissal order.

The municipal defendant brought a motion for summary judgment dismissing negligence claims as statute‑barred under the Limitations Act, 2002.

The plaintiff alleged the municipality failed to enforce by-laws relating to a neighbour’s road construction, drainage issues, and fence encroachments affecting the use and enjoyment of her property.

The court held that the road and drainage allegations were discovered more than two years before the action was commenced and were therefore barred by the limitation period.

However, alleged fence alterations occurring in 2012 and 2013 could potentially constitute newly discoverable claims within the limitation period.

Summary judgment was granted in part, dismissing the road and drainage claims while permitting fence-related claims against the municipality to proceed to trial.

Following a prior decision granting summary judgment to one defendant insurer and refusing the plaintiffs leave to amend their pleadings, the court addressed the issue of costs.

The successful defendant sought costs jointly and severally against the plaintiffs and the co‑defendant insurance broker.

The court determined the appropriate quantum using standard partial indemnity rates and rejected arguments that delay in bringing the summary judgment motion should reduce the award.

Applying the principles governing Bullock and Sanderson orders and the factors articulated in Moore v. Wienecke, the court concluded that a Sanderson order was fair because the broker cross‑claimed against the successful defendant and the plaintiffs reasonably joined both defendants due to uncertainty regarding responsibility for inadequate insurance coverage.

The broker was ordered to pay the successful defendant’s costs.

The plaintiffs moved for leave under Rule 26 of the Rules of Civil Procedure to amend their statement of claim to allege that the insurer failed to properly assess and adjust their business interruption loss following a fire.

The insurer opposed the amendment, arguing it constituted a new cause of action outside the one‑year contractual limitation period and brought a cross‑motion for summary judgment dismissing the claim.

The court held that the proposed amendment introduced a new factual basis for liability—post‑loss adjustment of the claim—distinct from the existing allegation that the defendants failed to place adequate insurance coverage prior to the loss.

As the limitation period had expired, the amendment was barred.

With no viable claim remaining against the insurer, summary judgment dismissing the plaintiffs’ claim and the broker’s crossclaim was granted.

The plaintiff brought a motion under rule 34.19 of the Rules of Civil Procedure seeking permission to video and audio record the defendant’s examination for discovery and to tender the recordings as evidence at trial if the defendant could not attend.

The action arose from historic sexual assaults committed when the defendant was a parish priest and for which he had been criminally convicted.

The court considered the defendant’s age, medical conditions, incarceration status, and the possibility that he might be unavailable or unwilling to attend trial.

It held that videotaping the examination would not cause meaningful prejudice or inconvenience to the defendant and could provide a superior evidentiary record compared to a written transcript.

The court concluded that there was a higher-than-average risk the defendant might not be available at trial and that the trier of fact should not be denied the best available record of the evidence.

The moving parties sought leave to appeal to the Divisional Court from an order granting the plaintiff leave to amend a statement of claim to plead a specific act of negligence relating to an aircraft crash.

They argued that the amendment introduced a new cause of action that was statute‑barred.

The court held that the original pleading invoking res ipsa loquitur already raised an inference of negligence and that specifying engine failure due to fuel starvation or exhaustion did not constitute a new cause of action.

Applying Rule 62.02(4) of the Rules of Civil Procedure, the court found no conflicting authority warranting appellate review and no reason to doubt the correctness of the order.

Leave to appeal was therefore refused.