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Court permits pre‑trial examination of non‑party witnesses to preserve evidence.
In a wrongful dismissal action with a counterclaim alleging conversion of drilling equipment, the plaintiff sought leave under Rule 36.01(2) of the Rules of Civil Procedure to examine two non‑party witnesses before trial in order to preserve their testimony.
The witnesses were elderly and resided outside the jurisdiction, and one had a history of medical issues.
The court considered the discretionary factors under Rule 36.01(3), including convenience, risk of unavailability, and the uncertain timing of trial.
Finding no prejudice to the defendants and recognizing the prudence of preserving evidence while memories were fresh, the court granted leave for the videotaped examinations before trial.
Novel negligence and fiduciary claims by Crown wards were allowed to proceed.
In a proposed class proceeding on behalf of Crown wards allegedly physically or sexually abused before and/or during wardship, the court considered whether the pleading disclosed causes of action in negligence and breach of fiduciary duty against the provincial Crown.
Applying the plain and obvious test on a motion to strike, the court held it was arguable that the Crown, as statutory guardian, owed a private law duty of care analogous to that of a parent and that its obligations could extend to protecting the wards' legal rights, including advising them of claims, preserving evidence, and considering litigation.
The court also held it was not plain and obvious that no fiduciary duty could arise, given the statutory parental relationship and the vulnerability of Crown wards.
The plaintiffs satisfied the cause of action requirement under s. 5(1)(a) of the Class Proceedings Act, 1992, and the defendant's motion to strike was dismissed.
CGL policy covers non-auto-related concurrent cause of an accident despite automobile exclusion clause.
The appellants appealed a decision finding that a commercial general liability (CGL) policy provided coverage for an accident involving a supply truck.
An employee negligently left a steel base plate unsecured on the truck during a work site clean up, which later flew off and struck a school bus.
The Supreme Court of Canada held that the accident resulted from two concurrent causes: the negligent clean up of the work site (non-auto-related) and the negligent operation of the truck (auto-related).
The Court found that the CGL policy's automobile exclusion clause did not oust coverage for the non-auto-related negligence, as there is no presumption that all coverage is excluded when one concurrent cause is an excluded peril.
The appeal was dismissed.
