P. B. Hockin

The plaintiff was injured in a motor vehicle accident and sued the estates of the deceased drivers.

Due to the plaintiff and his father sharing the same name, the plaintiff's counsel mistakenly believed the plaintiff owned the vehicle and did not name the father as a defendant.

After the limitation period expired, the plaintiff added the father as a defendant.

The third-party insurer moved for summary judgment to dismiss the claim against the father as statute-barred.

The court granted the motion, finding that the father's ownership was discoverable with reasonable diligence before the limitation period expired, and drew an adverse inference from the failure of the plaintiff, his father, and their senior counsel to provide affidavits.

The parties separated after a 14-year relationship and contested custody of their 8-year-old child, as well as support and equalization.

The applicant father sought joint custody, while the respondent mother sought sole custody.

Relying on the recommendations of the Office of the Children's Lawyer and the child's expressed preferences, the court ordered joint custody, finding the mother's animosity toward the father would likely impede maximum contact if she were granted sole custody.

The court also imputed $15,000 of pre-tax corporate income to the father, equalizing the parties' incomes and resulting in no child or spousal support being payable.

Finally, the court determined the mother had no legal interest in the matrimonial home and could not claim half its mortgage as a debt.

The defendants in a medical malpractice action brought a motion for partial summary judgment to dismiss the plaintiff's claim under the Family Law Act, arguing she did not meet the definition of a spouse.

The court dismissed the motion, finding it was brought too close to the scheduled trial date contrary to prior instructions.

Applying the principles from Hryniak, the court held that granting partial summary judgment would risk duplicative proceedings and was not in the interest of justice, as the spousal status issue could be efficiently determined at trial.

The moving party, acting under a s. 38 BIA order in the bankruptcy of a general contractor, moved for a final order that a release executed by the bankrupt's trustee did not bar a claim for damages against the respondent municipality.

The moving party also sought an order nunc pro tunc for leave to amend the bankrupt's statement of defence to add a crossclaim against the municipality.

The court dismissed the motion, finding that the action had already been dismissed following a settlement, and a crossclaim could not stand alone under the Construction Lien Act.

Furthermore, the comprehensive release executed by the trustee barred the crossclaim, and the court declined to exercise its discretion under s. 37 of the BIA to reverse the trustee's decision.

The applicant sought leave to appeal an order that permitted cross-examination on an affidavit and required production of the applicant's law firm's litigation file.

The motion judge had ruled that litigation privilege did not protect the file and had issued a supplementary endorsement without a hearing.

The court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's interpretation of litigation privilege under Blank v. Canada and holding that the proposed appeal involved a matter of fundamental importance regarding the right to a hearing on a motion under Rule 59.06(2).

An electrical subcontractor brought a construction lien action seeking payment for overtime and premium labour charges and other alleged extras arising from work performed during the construction of an automotive assembly plant.

The subcontract was a stipulated price agreement under the CCA1 standard form, requiring written notice of claims for adjustments to the subcontract price.

The court held that labour performed during premium shifts was within the scope of the subcontracted work and did not constitute “extra work.” The subcontractor also failed to comply with the contractual notice provisions, which operated as a condition precedent to recovery.

Most additional claims were dismissed for the same reason, although the defendant’s counterclaim for a back charge was also dismissed because the evidence did not establish that the subcontractor’s scope included the high-voltage work in question.