Nawaz Tahir

Following a three‑day civil trial, the plaintiffs obtained default judgment against one defendant while their claim against the other defendant was dismissed.

The court addressed competing submissions regarding costs.

The plaintiffs sought significant costs against the defaulting defendant, but the court found the claimed amount excessive given the straightforward nature of obtaining default judgment and reduced the award to reflect reasonable fees and disbursements.

The successful defendant sought substantial indemnity costs based on a pre‑trial offer to settle, but the court held that the offer to settle rule did not apply because the plaintiffs’ action against that defendant was dismissed entirely.

The court awarded that defendant partial indemnity costs at the upper end of the applicable hourly range and rejected the plaintiffs’ request that the defaulting defendant bear those costs.

Neighbouring homeowners sued after a residential fire originating in the defendant’s semi‑detached house damaged their property.

One defendant, who was alleged to have caused the fire by careless smoking, did not defend and was noted in default.

The court held that the alleged admission by that defendant to his father was inadmissible hearsay against the co‑defendant homeowner and could not be relied upon to prove causation.

Without admissible evidence establishing how the fire began, the plaintiffs failed to prove negligence on a balance of probabilities, and the fire was characterized as “accidental” under the Fire Protection and Prevention Act, 1997.

The homeowner was neither directly negligent nor vicariously liable for the alleged conduct of his adult son.

A food processing company sued a manufacturer of aseptic liner bags after over 1,200 containers of tomato sauce leaked and collapsed during warehouse storage, alleging defects in the bags’ side seams.

The defendant argued the failure resulted from the plaintiff’s use of oversized corrugated boxes, inadequate structural support, and multi-tier stacking during long-term storage.

Expert evidence conflicted on whether seam defects or packaging design and storage conditions caused the failures.

The court held the plaintiff had not proven on a balance of probabilities that the bags were defective and instead found the more likely explanation was the plaintiff’s choice of incompatible boxes and stacking methods.

The plaintiff’s claim was dismissed.

The defendant’s counterclaim for unpaid invoices was stayed due to the plaintiff’s Notice of Intention to make a proposal under the Bankruptcy and Insolvency Act.

The applicant sought a declaration that its commercial general liability insurer was obliged to indemnify it for amounts paid in settlement of personal injury claims arising from a motor vehicle accident involving a truck and attached trailer.

The applicant argued that concurrent causes existed, including negligent attachment of the trailer and negligent operation of the vehicle, triggering coverage under the CGL policy and a non‑owned automobile endorsement.

The court held that the alleged negligence arose from the ordinary use or operation of an automobile, including attaching and towing a trailer, and therefore fell within the policy’s automobile exclusion.

The court further found that no independent non‑automobile cause of liability existed and that the non‑owned automobile endorsement did not apply.

The application for indemnity was dismissed.

The applicant was injured in motor vehicle accidents in 1997 and 2003, developing chronic pain.

She sought payment for massage therapy incurred between 2002 and 2008, which the insurer denied on the basis that ongoing passive therapy was not reasonable and necessary.

The arbitrator found that the massage therapy was reasonable and necessary as supportive care to manage the applicant's chronic pain and allow her to maintain her function and participate in active therapies.

The insurer was ordered to pay $57,078.50 for the incurred massage therapy, plus interest.

The insurer sought to appeal an arbitrator's preliminary order excluding an expert medical report that was served only seven days prior to the start of the arbitration hearing, contrary to the 30-day requirement in Rule 39.1 of the Dispute Resolution Practice Code.

The Director's Delegate rejected the appeal, finding no extraordinary circumstances to justify an exception to the rule against appealing preliminary or interim orders before the arbitration is finally decided.

The Delegate emphasized the legislative deference given to arbitrators' discretionary procedural decisions and the importance of timely disclosure to ensure fairness and efficiency.