Michael Unea

The Divisional Court dismissed the moving party's motion for leave to appeal a decision dated June 27, 2024.

Costs were awarded to the responding party in the amount of $5,000.00.

The defendant brought a motion to transfer the action to the Small Claims Court after settling the main action with the plaintiff.

The third party opposed the transfer, arguing that it had incurred over $60,000 in defence costs over seven years of litigation in the Superior Court, which would not be recoverable in Small Claims Court.

The Master dismissed the motion, finding that a transfer at this late stage would prejudice the third party and would not secure the most just, expeditious, and least expensive determination of the remaining issues.

The appellant appealed from the dismissal of his motion to set aside a settlement and consent order dismissing his action.

The appellant acknowledged signing the settlement but argued he did so following a lengthy examination while suffering from a headache and other ailments, claiming incapacity.

The motion judge found the appellant had not met his burden of proof and there was no legally justifiable reason to set aside the settlement.

The Court of Appeal affirmed this decision, finding the evidence fell short of establishing incapacity.

The appellant also challenged the costs award, but the court found the official transcript supported the formal order and declined to interfere.

The moving defendants sought summary judgment dismissing claims arising from a motor vehicle collision allegedly caused by a boulder connected to landscaping work at neighbouring residential properties.

The plaintiff pursued liability based on private nuisance, public nuisance, and the rule in Rylands v. Fletcher after conceding other pleaded claims.

The court held that private nuisance does not apply to personal injury or damage to personal property, and that the alleged temporary presence of the boulder on the roadway did not satisfy the public interest element required for public nuisance.

The court further found that ordinary residential landscaping work is not a non-natural use of land for purposes of the Rylands v. Fletcher rule.

Summary judgment was granted and the claims against the moving defendants were dismissed.

The defendant brought a motion for summary judgment seeking dismissal of a motor vehicle accident claim on the basis that it was statute-barred under the Limitations Act, 2002.

The central issue was when the claim became discoverable under s. 5 of the Act, given the statutory threshold requirement for serious and permanent impairment under s. 267.5(5) of the Insurance Act.

The court held that discoverability required a sufficient body of medical evidence demonstrating that the plaintiff’s injuries met the statutory threshold.

Because the first medical opinion diagnosing serious and permanent impairment arose in June 2010, the claim issued in May 2012 was within the limitation period.

The motion for summary judgment was dismissed and partial summary judgment was granted to the plaintiff dismissing the limitation defence.