Richard Butler

The plaintiffs brought a motion for validation of service of the Fresh as Amended Statement of Claim and motion record on a defendant in the Netherlands, for leave to issue a Further Fresh as Amended Statement of Claim, and for an extension of time to serve it.

The motion was opposed by affiliated defendants.

The court granted leave to amend the claim, finding no withdrawal of an admission.

The court also granted an extension of time for service, finding no prejudice to the foreign defendant and a reasonable explanation for the delay.

The request for validation of service was denied, as the motion record was properly served under the Rules and the Hague Convention, and the extension of time for the claim was granted nunc pro tunc.

The plaintiffs sued their neighbours for nuisance arising from the installation and use of an outdoor wood-fired boiler that emitted noxious smoke and odours onto their property.

Prior to trial, the defendants agreed to remove the boiler and consented to an injunction prohibiting its future use, leaving only the assessment of damages to be tried.

The court rejected the defendants' preliminary arguments that the action was barred by res judicata from a discontinued Small Claims Court claim and that no actionable nuisance was established.

Finding that the smoke caused a serious and persistent interference with the plaintiffs' use and enjoyment of their property, the court awarded general damages of $20,000 to each plaintiff.

Following the discontinuance of an environmental contamination action seeking $20 million in damages, the defendant successfully obtained costs of the action.

The present endorsement addressed the costs of the defendant’s motion for those costs.

The court found the defendant reasonably brought the motion because the plaintiffs did not admit entitlement to costs until late in the proceedings, though most of the motion work related to the disputed quantum rather than entitlement.

As neither party achieved success on the principal issue of quantum, the court declined to award costs for that portion of the motion.

Limited costs were awarded for the entitlement issue caused by the plaintiffs’ delayed admission.

The applicant mining company brought a motion to strike portions of a respondent’s affidavit and factum on the basis that they disclosed communications made during settlement negotiations.

The court considered the principles governing settlement privilege as articulated by the Supreme Court of Canada and the conditions required for the privilege to arise.

It found that a litigious dispute existed or was contemplated at the time of the communications, the communications were made with an implied intention of confidentiality, and their purpose was to attempt settlement of the dispute.

As no competing public interest justified disclosure, the communications were protected by settlement privilege.

The court ordered that the impugned passages and documents be struck or expunged from the responding materials.

The defendant Ministry of Transportation (MTO) brought a motion to amend its statement of defence and counterclaim to plead that the plaintiff was a tenant at will of the Crown and that no compensation was owed under the Public Lands Act.

The plaintiff brought a cross-motion to strike existing paragraphs of the defence.

The court denied the MTO's request to amend the pleadings regarding the tenancy at will issue, finding it was barred by res judicata as it should have been pursued in a prior proceeding before the Mining and Lands Commissioner.

However, the court allowed the amendment regarding the Public Lands Act.

The plaintiff's cross-motion to strike was dismissed.