R. Fenn

The plaintiffs and two of the three defendants in a multi-party aviation negligence action entered into a Pierringer agreement.

The plaintiffs brought a motion to implement the agreement, seeking to amend their claim to proceed only against the non-settling defendant (NAV Canada) for its proportionate share of fault, and to dismiss all crossclaims and third-party claims.

NAV Canada did not oppose the dismissal but sought terms to preserve its discovery rights against the settling defendants.

The court held it had jurisdiction to dismiss the crossclaims as they would become untenable once the plaintiffs limited their claim.

The court granted the motion on terms designed to protect NAV Canada's procedural rights, including orders for the preservation of evidence and the ability to seek discovery from the settling defendants if necessary.

In an aviation insurance dispute arising from an aircraft crash, the defendants sought production of documents from the Transportation Safety Board (TSB) under Rule 30.10 of the Rules of Civil Procedure and provisions of the Canadian Transportation Accident Investigation and Safety Board Act.

The court considered whether statutory privileges over cockpit voice recordings, statements to investigators, and representations made regarding draft TSB reports could be overridden.

Applying the statutory balancing tests, the court ordered production of the cockpit voice recorder recordings and certain factual documents where the public interest in the proper administration of justice outweighed the privilege.

Statements given to investigators for aviation safety purposes were largely protected, and representations regarding the TSB draft report remained absolutely privileged.

The flight data recorder information was ordered produced as it was not covered by statutory privilege.

Following a trial concerning a possessory land claim, the successful party sought costs and the court initiated a Rule 57.07 inquiry regarding whether the opposing party’s lawyer should personally bear responsibility for wasted costs.

The court first rejected a recusal motion alleging reasonable apprehension of bias, applying the test from Wewaykum and concluding that prior findings and procedural steps did not create a reasonable apprehension of bias.

On the merits, the court applied the two‑step framework from Galganov v. Russell (Township) to determine whether the lawyer caused unnecessary costs and whether a personal costs order was warranted.

The court found the lawyer knowingly or negligently presented an expert witness whose lack of impartiality was evident, resulting in significant wasted trial time.

Exercising its discretion, the court ordered the lawyer to reimburse the client for 20% of the $490,000 costs award and to pay additional costs for the Rule 57.07 hearing.