Alan J. Clausi

This appeal concerned a dog bite injury where the appellants sued the dog owners and the landlords of the property.

The motion judge granted summary judgment to the landlords (Crisols), dismissing the action against them, based on an interpretation of the Dog Owners' Liability Act (DOLA) s. 3(1) that it entirely ousted the Occupiers' Liability Act (OLA) for non-dog owners when a bite occurs on the dog owner's premises.

The Court of Appeal found the motion judge erred in this interpretation, clarifying that DOLA s. 3(1) only determines the liability of the dog owner under DOLA, not precluding OLA or common law claims against other parties.

However, the Court of Appeal upheld the summary judgment dismissal against the landlords on the alternative ground that there was no genuine issue for trial regarding their liability under the OLA or common law, as absentee landlords who had no prior knowledge of the dog's temperament and no responsibility for the dog or its behaviour, and where the injury was not causally linked to any failure in property maintenance or repair.

The parties settled a motor vehicle accident claim for $9,000 for past loss of income and housekeeping capacity, but could not agree on costs.

The plaintiff sought over $70,000 in costs and disbursements, while the defendants argued for a maximum of $12,278.31 plus HST based on proportionality.

The court found that the plaintiff's costs should be discounted because she was unsuccessful on her claim for general damages.

The court also declined to award costs for the pursuit of Statutory Accident Benefits, as the defendants received no benefit from them.

Costs were fixed at $42,229.05.

The plaintiff initiated three actions stemming from a motor vehicle accident: a tort claim, an underinsured motorist claim, and a solicitor's negligence claim against his former lawyer.

The defendants moved to consolidate the actions and for a broad waiver of solicitor-client privilege and the deemed undertaking rule.

The court ordered the actions to be tried together or one after the other, at the discretion of the trial judge.

It denied the broad waiver of solicitor-client privilege and the deemed undertaking rule for information from the solicitor's negligence action for use in the other two actions, emphasizing the importance of privilege.

However, it dispensed with the deemed undertaking rule for information from the tort and OPCF actions for use in the solicitor's negligence action, and between the tort and OPCF actions.

The defendants in three related actions (a tort action, an OPCF underinsured motorist action, and a solicitor's negligence action) brought motions to consolidate the proceedings or have them heard together, and to dispense with the deemed undertaking rule.

The plaintiff opposed the inclusion of the solicitor's negligence action and the waiver of solicitor-client privilege.

The court ordered that the three actions be tried together or one after the other, subject to the trial judge's discretion.

However, the court held that the plaintiff's waiver of solicitor-client privilege applied only to the solicitor's negligence action and refused to dispense with the deemed undertaking rule for evidence obtained in that action, protecting the plaintiff's privilege in the tort and OPCF actions.

The Plaintiff sought partial indemnity costs following a 15-day civil jury trial where she recovered $168,000 after a 30% finding of contributory negligence.

The Defendants argued for a reduction in costs, citing partial success on liability and future income claims, excessive preparation time, use of two senior counsel, and disbursements for out-of-town counsel and uncalled witnesses.

The court considered Rule 57 factors, including success, amount recovered, complexity, and offers to settle.

The Plaintiff's offer to settle was not exceeded, and the Defendants' offers were not close to the recovery.

The court reduced costs for using two senior counsel and disallowed disbursements for most uncalled witnesses, but allowed half of the out-of-town counsel's travel expenses.

The Defendants were ordered to pay $145,000 in fees plus HST and $85,000 in disbursements inclusive of HST.

The defendants brought a motion in the middle of a jury trial for leave to file a new expert report from a vocational rehabilitation expert.

The plaintiff opposed the motion, arguing it would be highly prejudicial as she had already closed her case and her experts had testified.

The court dismissed the motion, finding that allowing the late report would be unfair and prejudicial, an adjournment was impossible due to the jury, and the defendants had long known the basis of the plaintiff's future income loss claim.

The defendants brought a threshold motion following a jury trial, arguing the plaintiff did not sustain a permanent and serious impairment of an important physical, mental or psychological function from a 2014 motor vehicle accident.

The plaintiff suffered chronic pain that prevented her from pursuing a career as a police officer, leading the jury to award $175,000 for loss of future income and $65,000 for pain and suffering.

The court applied the Meyer v. Bright test and found the plaintiff's chronic pain constituted a permanent, serious impairment of an important function, dismissing the defendants' motion.

The defendants brought a motion for leave under s. 12 of the Evidence Act to call more than three expert witnesses, specifically seeking to file a report from a second physiatrist.

The plaintiff opposed the motion on the basis that the second physiatrist would provide redundant evidence identical to that of the defendants' first physiatrist.

The court denied leave, finding that calling multiple experts with the same specialty incurs unnecessary expense and is not necessary to assist the trier of fact.

The plaintiff brought a motion to strike the jury and proceed judge-alone after defence counsel referred to the plaintiff's case as a 'cash grab' during closing submissions.

The plaintiff argued the comment was inflammatory and implied dishonesty.

The defendants opposed the motion and argued the plaintiff also made emotional appeals using analogies.

The court found the 'cash grab' comment was prejudicial but concluded a correcting instruction would be sufficient to cure the prejudice.

The motion to strike the jury was dismissed, and the court declined to give correcting instructions regarding the plaintiff's analogies.

The defendants brought a motion to compel the plaintiff to attend a defence medical examination with an orthopedic surgeon without an audio recording.

The plaintiff opposed, arguing the examination should be recorded due to the expert's alleged bias and past adverse judicial findings against him.

The court applied the test from Bellamy v. Johnson, finding the plaintiff failed to show substantial and compelling reasons to order a recording.

The court held that general allegations of bias or the fact that an expert primarily conducts defence assessments do not justify recording the examination.

The motion was granted.