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Fridays With Rogers Partners

At our muffin meeting this morning, we discussed a case wherein the lawyers for the plaintiff sought a charging order following a jury trial. We also went over a decision in which one of the issues was the test to withdraw admissions.

Charging Order Denied

Matthew Umbrio discussed the Court of Appeal’s decision in Bosnali v. Michaud, 2020 ONCA 7.

A jury awarded the plaintiff damages arising from a motor vehicle accident. However, the plaintiff did not beat offers to settle made by the defendants, and the defendants were awarded costs. The net outcome was that the plaintiff was ordered to pay the defendants over $11,000.

The plaintiff’s lawyers brought a motion for a charging order. They argued that they had a first charge on the monies awarded to the plaintiff at trial in priority to any set-off claimed by the defendants.

The Court of Appeal rejected this argument. As a general principle, if a judgment on its face creates mutual debt obligations from each party to the other, the debt obligations are set-off or netted against each other to determine which party can enforce the net amount against the other, absent language to the contrary in the judgment.

The Court of Appeal stated that the plaintiff’s lawyers could stand in no better position than the plaintiff in relation to the defendants, and their right to a charging order or lien was subject to the defendant’s right of set-off.

Withdrawing Admissions

Micah Pirk O’Connell addressed the decision in PBW High Voltage Ltd. v. Metrolinx, 2020 ONSC 56. One of the issues was the test to withdraw an admission.

Rule 51.05 of the Rules of Civil Procedure provides that an admission may be withdrawn on consent or with leave to the court.

A party who seeks to withdraw an admission bears the onus of establishing that the amendments give rise to a triable issue, that the original admission was inadvertent or resulted from wrong instructions, and that the withdrawal of the admission will not result in any non-compensable prejudice.

In meeting the requirement to demonstrate a “triable issue”, the party must show that the proposed amendments are meritorious, rather than a tactical move that hinders, delays or frustrates the course of justice.