Canada Case Law

Blair v MacGillivray Law Office

Court

Nova Scotia Small Claims Court

Adjudicator found the claimant reasonably relied on a 25% fee representation and that a 25% contingency on the portion of the settlement attributable to the claimant after insurer subrogation ($450,000) is reasonable; accordingly legal fees were assessed at 25% of $450,000 = $112,500; interest on disbursements was not proven reasonable and is disallowed; mail/faxes disallowed; photocopy charges reduced to $445.20; defendants must provide a final statement of account and reimburse the claimant for any amounts paid in excess of these findings (including $9,222.36 for interest on disbursements a…

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• Contingency fee
• Reasonableness of legal fees
• Disbursements and interest
• Client accounting
• Subrogation
• Conflict of interest

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Boutilier v. Hilly Acres Farm Limited

Court

Supreme Court of Nova Scotia

The ex parte renewal motions filed by the Plaintiffs contained false and misleading information and failed the full and fair disclosure requirement of Rule 22.05; therefore the Defendants were entitled to a substantial contribution to their costs for the motions in each of the six proceedings and the court awarded specified lump sum costs payable forthwith to each Defendant in each matter.

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• Ex parte motions
• Full and fair disclosure
• Renewal of notice of action
• Setting aside orders
• Costs assessment
• Misleading court documents

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Chawla v. Gebert

Court

Supreme Court of British Columbia

The court ordered the plaintiff to request and produce insurer and salary indemnity records so ICBC could argue deductions under s. 83 of the Insurance (Vehicle) Act.

• S.83 insurance (vehicle) act
• Disclosure
• Collateral benefits
• Subrogation
• Divisibility of injuries
• Deduction from damages

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Afshar v. Gu

Court

Supreme Court of British Columbia

The court held the defendant’s settlement offers were reasonable and ordered costs to the plaintiff only until expiry of the second offer, with no costs thereafter.

• Rule 9-1 offers to settle
• Costs awards and scales
• Causation
• Credibility in personal injury claims
• Future earning capacity
• S.83 insurance (vehicle) act deductions

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Kherani v. Da Silva

Court

Supreme Court of British Columbia

The court dismissed the defendants’ application to adduce edited video surveillance, holding it should have been put to the plaintiff in cross-examination.

• Admissibility of surveillance evidence
• Procedural fairness
• Credibility
• Cross-examination
• Impeachment
• Probative value

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Murray v. Morrisey

Court

Supreme Court of Nova Scotia

The limitation period for Morrisey's claim against Murray had expired despite the discoverability argument; the prerequisites of s.22(b) were not met because Murray lacked sufficient knowledge of being a target such that he would not be prejudiced; CPR 83.11 does not provide residual discretion to override the limitation bar; therefore the statute-barred claim has no real prospect of success and must be struck on summary judgment.

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• Discoverability
• Limitation periods
• Amendment to add defendant
• Section 22 limitation of actions act
• Civil procedure rules 13.04, 83.11

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Storey v. Singh

Court

British Columbia Court of Appeal

The Court of Appeal granted an application to let the respondent cross-appellant proceed before the appellant filed a factum, finding it was in the interests of justice.

• Cross-appeal procedure
• Dispensing with procedural rules
• Court of appeal rules r.29 and r.41
• Timelines and filing requirements
• Insurance (vehicle) act s.83 reductions
• Cross-appeal-procedure

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Miller v. Cox

Court

Supreme Court of British Columbia

Costs decision in a personal injury action: the court applied fast-track costs rules, denied double costs on a settlement offer, and reserved costs for discontinued parties.

• Offer to settle
• Double costs
• Rule 15-1
• Rule 14-1(1)(f)
• Liability for costs of discontinued parties
• Double-costs

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Lewis v. Davie

Court

Supreme Court of Nova Scotia

Portions of the Vidal affidavit relating to the separate Lewis claim were struck as irrelevant; Rule 10.09 enhanced costs did not apply because there was no favourable judgment and offers were withdrawn; costs are to be assessed under Tariff A Scale 1 with one day trial addition ($3,000 + $2,000) yielding $5,000; disbursements awarded $800; contingency fee arrangements do not justify additional uplift; total award to the plaintiff (guardian ad litem) is $5,800; no costs awarded for the motion to strike.

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• Minor injury cap
• Costs assessment
• Formal offers to settle (rule 10)
• Striking affidavits (rule 39.04)
• Tariff a and rule 77
• Contingency fee / risk premium

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Lauzon v. Magee

Court

Supreme Court of Nova Scotia

Applying s.12 LAA and weighing the s.12(5) factors the court found the hardship balancing favored both plaintiffs: the insurer had early notice and investigatory opportunity, the delays were primarily solicitor inadvertence, medical evidence exists and can be tested, and the claims are not frivolous; accordingly the defendant’s limitation defences are disallowed under s.12(3) and the defendant’s summary judgment motions are dismissed.

Source excerpt

• Limitation periods
• Disallowance of limitation defence under s.12 laa
• Minor claimants and limitation tolling
• Prejudice and hardship balancing

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