Trevor James Buckley

The plaintiff, an electrical contractor, sued the defendants for breach of a time and materials contract for electrical services provided to a grocery store.

The central issues included the interpretation of the contract, the identification of the proper contracting parties given that "Dutchies Fresh Food Market" was a non-existent entity, the amount of unpaid invoices, and a claim for punitive damages.

The court found the individual defendant personally liable, jointly with specific corporate entities, for contracting on behalf of a non-existent corporation.

The court awarded the full amount of the unpaid invoices, accepting the plaintiff's evidence regarding time and materials, including overtime, breaks, and material costs.

However, the claim for punitive damages was denied, as the defendants' conduct, while uncooperative, did not meet the high threshold of malicious, oppressive, or high-handed behavior required for such an award.

The defendant Unifund brought a motion to strike the statement of defence of the third party for failing to attend an examination for discovery despite multiple notices and a prior court order.

Counsel for the third party argued they had been unable to contact their client.

The court criticized the delay and lack of effort to locate the third party, ordering counsel to retain an investigator and produce the third party for discovery by August 30, 2022, failing which counsel must move to be removed from the record and Unifund may renew its motion to strike.

Costs of $1,000 were awarded to Unifund.

The moving party brought a motion for leave to appeal the order of Price J. The Divisional Court dismissed the motion for leave to appeal without costs.

The moving parties sought leave to appeal an order of the motion judge.

The Divisional Court dismissed the motion for leave to appeal as moot because in-person civil jury trials were anticipated to resume, and the action remained scheduled for October 2022.

The dismissal was without prejudice to the moving parties' right to re-submit the motion if circumstances prevented the trial from proceeding with a jury as scheduled.

The plaintiff successfully moved for an order to compel production of records and permit questioning from a non-party assessment company and its retained doctor, overcoming a claim of litigation privilege.

This endorsement addresses the costs of that successful motion.

The court awarded the plaintiff partial indemnity costs in the amount of $16,877.92, finding the motion involved important and complex issues, and that the time spent by the plaintiff's counsel was reasonable and not excessive, despite the defendants' arguments regarding proportionality and necessity of certain steps.

The plaintiff sought an order to compel production of records from a non-party assessment company, HVE Healthcare Assessments, and its retained expert, Dr. Joel Finkelstein, and to permit questioning of HVE.

The plaintiff argued that litigation privilege should yield to the principle of fairness, citing a reasonable suspicion that HVE improperly influenced Dr. Finkelstein's report, particularly concerning the summarization of surveillance evidence and the delayed disclosure of a conflicting expert report.

The court found a factual foundation for this suspicion, noting inconsistencies and the defendants' refusal to answer questions regarding HVE's involvement.

The court ordered the defendants to produce all relevant records from HVE and Dr. Finkelstein, excluding solicitor-client privileged communications, as these were deemed foundational documents not protected by litigation privilege under the circumstances.

The defendants were also ordered to pay the plaintiff's costs.

Following the dismissal of the plaintiff's motion to extend the time for setting the action down for trial and the subsequent dismissal of the action for delay, the court determined the costs payable to the defendants.

The court rejected the plaintiff's argument that no costs should be awarded, emphasizing the principle of indemnity and the significant defence costs incurred.

Costs were awarded to the defendants on a partial indemnity scale, with the primary private sector defendant receiving the largest share due to its robust defence of its licensed operations.

The appellant sued for damages relating to property flooding and brought a motion to extend the time to set the matter down for trial beyond its fifth anniversary.

The motion judge dismissed the action for delay under Rule 48.14(7)(a), finding the appellant had not reasonably explained the delay.

The appellant appealed, arguing the motion judge applied an overly stringent test, misapprehended evidence, and failed to consider the pending summary judgment motion and consent of other defendants.

The Court of Appeal dismissed the appeal, finding the motion judge correctly articulated and applied the legal test and his decision was amply grounded in the record.

Two consolidated actions were brought by food industry companies and related parties against their commercial insurer following losses arising from an Indian meal moth infestation.

The first action sought indemnification for lost rental income and a bonus allegedly owed to the principal owner.

The second action sought indemnification for alleged theft of equipment and assets by a court-appointed receiver, resulting in business interruption losses.

The trial judge dismissed the first action entirely, finding the losses were indirect and not covered by the policy.

In the second action, the trial judge dismissed the property claim as time-barred but allowed the business interruption claim to proceed in part by applying a rolling limitation period.

On appeal, the Court of Appeal upheld the dismissal of the first action and reversed the trial judge's application of a rolling limitation period to the business interruption claim, finding that the insurer's obligation to indemnify was not a recurring contractual obligation.

Both actions were dismissed in their entirety.

The plaintiff brought a motion to extend the time under Rule 48.14 to prevent the automatic dismissal of his action for delay.

The action, commenced in 2013, alleged that the defendants caused artificial flooding on his property.

The court found that the plaintiff failed to provide a reasonable explanation for the delay in advancing the litigation, noting that the outstanding summary judgment motion did not prevent the plaintiff from setting the matter down for trial.

The motion for an extension of time was dismissed, and the action was dismissed for delay.

The appellants commenced a motor vehicle accident action in December 2010 following a collision in December 2008.

The action was administratively dismissed as abandoned in August 2011 pursuant to rule 48.15 of the Rules of Civil Procedure.

The appellants moved to set aside the dismissal in February 2014, more than two years after the dismissal order.

A master granted the motion to set aside, but the Superior Court judge allowed the respondents' appeal and reinstated the dismissal.

The appellants appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal, finding that the master erred in considering the repeal of rule 48.15 as part of the contextual analysis, erred in assigning fault to the respondents for not filing a defence, erred in finding that the appellants always intended to prosecute the action without evidence to support this finding, and critically erred in failing to consider the finality principle in assessing prejudice to the respondents.

This was a costs endorsement following an insurance coverage trial in which the defendant insurer was successful in having the first action dismissed entirely.

The court held that costs were to be fixed under s. 131 of the Courts of Justice Act and r. 57.01(1) of the Rules of Civil Procedure, guided by fairness, reasonableness, indemnity, reasonable expectations, and the complexity and importance of the issues.

Although the insurer’s bill included work relating to a second action and an earlier related action, the court found 65% of the total bill properly attributable to the first action.

No additional deductions were warranted for an unproceeded summary judgment motion, settlement with the receiver, or an expert report.

Costs of $179,372.03 inclusive of HST and disbursements were awarded on a partial indemnity scale.

The plaintiffs brought two actions against their insurer for business interruption and property losses following an Indian meal moth infestation and the subsequent receivership of related companies.

In the first action, the court found the claimed losses were not 'direct losses' under the policy and that the receivership was not a covered peril.

In the second action, the court held that the property loss claim was barred by the one-year contractual limitation period, but the rolling business interruption claim beginning one year before the action was commenced could proceed.

The court granted the plaintiffs relief from forfeiture for inadequate proofs of loss and dismissed the insurer's abuse of process and vitiation defences.

The plaintiffs brought a motion to set aside a registrar’s order dismissing their personal injury action as abandoned under former Rule 48.15 of the Rules of Civil Procedure.

The action arose from a motor vehicle collision and had been dismissed after no defence was filed within the prescribed period.

Applying the contextual approach endorsed in Scaini v. Prochnicki and subsequent appellate authority, the court considered the Reid factors, including explanation for delay, intention to proceed, promptness of the motion, and prejudice to the defendants.

Although the plaintiffs’ explanation for delay and the timing of the motion were unsatisfactory, the registrar’s dismissal occurred before the required 45‑day notice period expired, constituting an irregularity.

The court also found no significant prejudice to the defendants and emphasized the policy favouring determination of disputes on their merits.