Ballam Insurance Services Limited v Fundy Computer Services Ltd., 2022 NSSC 277 Reading Time: 5 minutes (approx.) By: Chloe Jardine (Articled Clerk) Fundy Computer Services Ltd. and Atlantic Datasystems Inc. (collectively “the Defendants”) filed a motion to dismiss an action filed by Ballam Insurance Services Limited (“the Plaintiff”) on October 4, 2011. The Defendants provided information technology services to the Plaintiff in 2010 and 2011, from which a dispute arose over server issues. An Amended Notice of Action was filed by the Plaintiff on January 23, 2014, and Examination for Discovery was held June 18-19, 2014. The Defendants argued that the last meaningful step taken by the Plaintiff occurred on February 17, 2016, when the Plaintiff partially fulfilled their Discovery undertakings. The Plaintiff argues there had been further efforts made to advance the action including obtaining an expert. Further, the Plaintiff argued that any delays were out of their control due to their original expert changing employment in 2017, staffing changes at their legal counsel’s office, the COVID-19 pandemic delaying the process of hiring a new expert, and the Defendants not making the original physical server and associated software/logs available to the Plaintiff. When considering whether to dismiss an action for delay, the Court must determine: (1) if there was an excessive delay; (2) if this delay was excusable; (3) if this delay presents a substantial risk of an unfair trial or prejudice against the Defendant(s), and (4) in the presence of such a risk, what outcome is just when considering the interests of both parties. The Court clearly stated that there was an excessive delay in this action. Discovery had concluded eight years prior, yet undertakings had not been fulfilled. Further, no expert report had been presented by the Plaintiff notwithstanding their subsequent expert had been hired nearly two years prior. When such a delay is found, the burden is on the Plaintiff to prove that this delay was reasonably excusable. The Court found that while the delays argued by the Plaintiff likely impacted their ability to move the action forward, the Plaintiff had not satisfied the Court/ that these factors were entirely responsible for the extensive delays occurring in this matter. The Plaintiff could not explain why there has yet to be an expert report produced or why nearly half of their undertakings remain unfulfilled. Even with the finding of an excessive and inexcusable delay, the Court found there was no risk to the fairness of a trial. The Defendant argued that “there can be no doubt that the memories of those involved have faded.” The Court was not satisfied, as the Defendant did not identify key witnesses impacted by the delay or how this would result in a risk of an unfair trial or prejudice to the Plaintiff. With this finding, the Court did not need to consider what a just outcome would be in this case. The motion was dismissed, and the 11-year-old action was allowed to continue with trial dates scheduled for February and March 2024. The Court imposed deadlines on both parties to fulfil undertakings and produce reports to force the matter forward as the trial dates approach. Link: https://www.canlii.org/en/ns/nssc/doc/2022/2022nssc277/2022nssc277.html?autocompleteStr=2022%20NSSC%20277&autocompletePos=1Read More
MacDonald v Aviva, 2022 NBQB 140 Reading Time: 2 minutes (approx.) By: Chloe Jardine (Articled Clerk) Joyce MacDonald (“the Plaintiff”) suffered injuries as a result of a motor vehicle accident on February 7, 2011. Due to her injuries, she was unable to return to her job as a nurse at Campbellton Regional Hospital for 104 weeks. The Plaintiff received Section B loss of income benefits from Aviva Insurance Company of Canada (“the Defendant”) during this period. After 104 weeks, the Plaintiff returned to work through a gradual return to work program. The Plaintiff continued to work for a period of 13 months, before she had to stop working permanently due to her injuries in September 2014. She attempted to resume her Section B weekly payments, claiming she was prevented from pursuing employment due to her injuries, but this request was denied by the Defendant. The parties turned to the Court to determine if the Plaintiff was entitled to continue receiving these benefits given that she had returned to work for over a year following the accident. To make this determination, the Court needed to ascertain whether the Plaintiff’s injuries had “continuously” prevented her from working. The Plaintiff argued that, though she returned to work, she was never able to successfully fulfil her expected duties as a result of the injuries sustained. The Court found that a failed attempt to return to work, regardless of the length of said return period, should not prevent an insured from being eligible to receive further weekly benefits. The Court found the insurance policy to be ambiguous, so the interpretation was found to be in favour of the Plaintiff. With this, the Plaintiff was entitled to weekly Section B retroactively to September 2014. On October 19, 2022, a motion for leave to appeal was allowed and we will update our readers on the result of the appeal. Link: https://www.canlii.org/en/nb/nbqb/doc/2022/2022nbqb140/2022nbqb140.html?autocompleteStr=2022%20nbqb%20140&autocompletePos=1 Read More
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