Michael Courneyea

The applicant sought accident benefits following a motor vehicle accident.

Her counsel brought a motion to be removed from the record due to a breakdown in the lawyer-client relationship and an inability to communicate.

The arbitrator granted the motion to remove counsel.

The applicant subsequently confirmed she did not wish to obtain new representation and wanted to cancel the arbitration.

The insurer brought a motion to dismiss the application.

The arbitrator dismissed the application for arbitration without costs.

At a status hearing under Rule 48.14(13) of the Rules of Civil Procedure, the plaintiff was required to show cause why its action should not be dismissed for delay.

The court held that the plaintiff bore the onus of demonstrating both an acceptable explanation for litigation delay and that the defendants would suffer no non-compensable prejudice if the action proceeded.

The plaintiff filed only a brief affidavit that failed to explain extended periods of inactivity and provided no evidence addressing prejudice.

Evidence from the remaining defendants established that key witnesses could no longer be located, creating significant litigation prejudice.

The court concluded the plaintiff failed to meet either branch of the test and dismissed the action for delay with costs.

Following a seven‑day trial involving enforcement of a vendor‑take‑back mortgage, promissory note, and guarantees relating to the sale of a gasoline station, the successful lender sought costs on a full indemnity basis relying on contractual provisions and alternatively substantial indemnity costs after an offer to settle.

The defendants conceded that costs should be awarded but disputed the scale and quantum.

The court held that although the plaintiff was largely successful, the defendants achieved limited success on an issue that reduced the principal judgment by $80,000.

The court further held that the plaintiff’s offer to settle was an “escalating offer” that did not trigger Rule 49.10 cost consequences.

Partial indemnity costs were awarded and fixed globally in an amount reflecting the mixed success of the parties.

The plaintiff sold a gasoline station to the defendants and took back a VTB mortgage and a promissory note.

The defendants stopped making payments, alleging the plaintiff misrepresented the station's financial performance and failed to complete a drive-through as undertaken.

The court found no misrepresentation, as the financial information provided was not materially inaccurate and the defendants waived their due diligence conditions.

However, the court found the plaintiff breached its undertaking to complete the drive-through and awarded the defendants an $80,000 offset against the amounts owing under the VTB mortgage.

The plaintiff was granted judgment for the balance owing and possession of the property.