Legal Blog

Motion to Strike

Hengeveld v. The Personal Insurance Company 2019 Ont CA

Personal injury plaintiffs learning that evidence that could assist them in proving their case had been destroyed commenced a third party action against their insurer who had had initial custody of that evidence. The insurer brought third party proceedings for contribution and indemnity against the plaintiffs’ lawyers; at the same time, in its defence to the plaintiffs’ action, the insurer asserted that the plaintiffs were contributorily negligent (through the lawyers’ agency) and therefore responsible for all or part of their own claimed damages. The lawyers brought a motion under Rule 21.01(2)(b) to dismiss the third party action as disclosing no cause of action. The court granted the motion because the same negligence being alleged in the third party action had been raised in the statement of defence to attempt to reduce the plaintiff’s damages. In effect, the insurer could not double dip with the same claims of negligence.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.