Paul H. Auerbach

Following the dismissal of the defendant's motion for summary judgment, the plaintiffs sought costs on a substantial indemnity basis, arguing the motion was unreasonable under Rule 20.06.

The defendant argued for partial indemnity costs.

The court found that while the motion was misguided and caused delay, the defendant did not engage in improper conduct, noting that a case conference judge had permitted the motion to proceed without objection from the plaintiffs regarding its suitability.

The court awarded the plaintiffs costs on a partial indemnity basis fixed at $12,500.

The defendant landlord brought a motion for summary judgment to dismiss the plaintiffs' action.

The plaintiff suffered a serious brain injury after allegedly falling from the roof of the commercial plaza due to an electrical shock while inspecting ventilation equipment.

The landlord argued there was no genuine issue for trial based on causation, lease exclusion clauses, and the plaintiff being the author of his own misfortune.

The court dismissed the motion, finding genuine issues for trial regarding the interpretation of the lease, the cause of the fall, and the potential apportionment of liability among multiple defendants, noting that partial summary judgment in a jury case risks inconsistent findings.

The plaintiffs moved to strike the jury notices delivered by the defendants, seeking a judge-alone trial.

Their primary argument was the uncertainty of trial timing due to the COVID-19 pandemic's suspension of civil jury trials, and alternatively, the cumulative effect of this delay and the complexity of the issues.

The court granted leave to bring the motion, finding that the COVID-19 pandemic constituted a substantial and unexpected change in circumstances, making it "manifestly unjust" to refuse leave.

Applying the principles from *Louis v. Poitras*, the court found that the indefinite suspension of civil jury trials in Ottawa caused sufficient prejudice to the plaintiffs, justifying striking the jury notices.

The court concluded that justice would be better served by proceeding with a judge-alone trial in multi-week blocks, allowing for a more timely resolution.

The plaintiffs, Bruce and Francine Cowley, brought a motion seeking a ruling that the defendants were not entitled to deduct long-term disability (LTD) benefits received by Mr. Cowley from any damages awarded for economic losses.

The plaintiffs argued that the LTD insurer's right of subrogation or the private insurance exception precluded such a deduction.

The court struck the plaintiffs' solicitor affidavits for failing to meet evidentiary standards but proceeded to rule on the legal issues.

The court held that the existence of a right of subrogation, whether equitable or contractual, is a complete bar to the defendants' request for a deduction of LTD benefits from economic loss damages.

The court also found that sections 30(14)-(15) of the Workplace Safety and Insurance Act were not relevant to this determination.

The plaintiff brought a motion regarding refusals and undertakings arising from a discovery in an action concerning the cancellation of an automobile insurance policy and alleged bad faith.

The court addressed specific refusals, largely denying the plaintiff's requests for further production or answers, but ordered some undertakings to be completed.

The court also addressed costs for an abandoned summary judgment motion by the defendant, awarding the plaintiff modest costs for that, and fixed costs for the current motion.

The defendants sought costs of a motion to dismiss or stay the action, which had been adjourned to allow the plaintiff to deliver a Fresh as Amended Statement of Claim.

The defendants argued they were forced to bring the motion because the original claim was overly broad and overlapped with a Solicitors Act assessment.

The court found that the defendants obtained the substantive relief they sought by forcing the amendment, and awarded them costs fixed at $2,500.

The plaintiff brought a motion to remove Michael Switzer as lawyer of record for the defendant Mario Ascani's insurer, State Farm Insurance, due to a disqualifying conflict of interest.

The conflict arose from the same law firm representing State Farm in both a tort action against Ascani and an accident benefits arbitration for the plaintiff.

The court found that the defendant failed to rebut the presumption of confidential information sharing within the firm, and that the firm was in a disqualifying conflict, ordering the removal of counsel.