Tyler Kaczmarczyk

The defendant, Floating Lodges of Sioux Narrows Inc., brought a motion for default judgment against the third party, Eric Schwartz, seeking contribution and indemnity.

This motion followed a settlement between the plaintiffs and Floating Lodges for a personal injury claim.

The third party had been noted in default for failing to file a defence.

The court, having previously dismissed a similar motion for insufficient evidence, reviewed a more comprehensive record detailing the plaintiff's injuries, expenses, and the third party's alleged negligence and contractual indemnity.

The court found the settlement amount reasonable and granted default judgment against the third party for $175,000.00 plus $10,000.00 in costs.

The plaintiff, Tylor D'Aoust, sued his pharmacist and pharmacy for alleged negligence in failing to warn him about the side effects of prescribed medication (oxazepam) after a motor vehicle accident.

The plaintiff, who had a history of opioid addiction and mental health issues, claimed the lack of warning contributed to his impaired driving.

The court assessed the standard of care for a community-based pharmacist, the credibility of the witnesses, and the issue of causation.

The court found that the pharmacist met the professional standard of care by providing verbal counselling, including a warning about operating a motor vehicle, to the plaintiff's authorized agent (his mother).

The court also concluded that the plaintiff failed to establish, on a balance of probabilities, that the oxazepam caused the accident, finding that the accident was not unavoidable and was not caused by the medication.

The action was dismissed.

The defendants sought costs following their successful motions to compel the plaintiff to provide particulars of damages and to quash a summons to a witness.

The court found that the plaintiff's conduct, which included unfounded allegations of bad faith, a last-minute recusal motion without notice, and unreasonable delay tactics, warranted an elevated costs award.

The court fixed the total costs payable by the plaintiff to the defendants at approximately $45,000.

The defendants brought a motion seeking to compel the plaintiff insured to attend for an examination under oath or alternatively an examination for discovery regarding the scope and quantum of damages arising from a flood loss claim under a property insurance policy.

The plaintiff argued that because the insurer had invoked the appraisal process under s. 128 of the Insurance Act, issues of quantum were exclusively within that process and outside the court’s jurisdiction.

The court rejected that position, holding that the statutory right to examine the insured under oath was not displaced by the election to proceed through appraisal and that the court retained jurisdiction to make procedural orders facilitating the statutory scheme.

The court also found the plaintiff’s proof of loss materially deficient and concluded that disclosure regarding damages was necessary.

A separate motion by the defendants to quash a summons requiring their appointed appraiser, who had since become counsel of record, to be examined was granted as the proposed examination constituted an unnecessary fishing expedition lacking evidentiary relevance to the pending motion.

In a medical malpractice action involving minor plaintiffs, the moving party sought to set aside an administrative dismissal for delay in order to file a litigation guardian affidavit and involve the Office of the Public Guardian and Trustee.

The court applied the factors governing relief from administrative dismissal and found the delay adequately explained, the motion brought promptly, and no prejudice to the responding party.

However, the court held that a settlement agreement dismissing the action without costs was enforceable against the adult plaintiff personally because clear authority had been given to counsel to settle.

The settlement was not enforceable against the minor plaintiffs because no litigation guardian had properly been appointed and the required affidavit under Rule 7.02 had never been filed.

The action of the adult plaintiff was dismissed without costs and without prejudice to the rights of the minor plaintiffs.