Alan L. Rachlin

Following the release of its reasons allowing the appeal, the Court of Appeal directed the parties to agree on the quantum of trial costs payable to the successful appellant.

The parties agreed on the amount, and the court ordered the respondent to pay the appellant trial costs in the agreed-upon sum of $250,000, all inclusive.

Following a jury trial in a motor vehicle accident case, the non-settling defendant was found 100% liable for the plaintiff's damages.

The non-settling defendant sought to deduct the $150,000 settlement paid by the settling defendant under a Pierringer agreement from the jury's damages award to prevent double recovery.

The court held that while the settlement amount must be deducted to prevent overcompensation, the plaintiff is entitled to first deduct her full indemnity costs of pursuing the settling defendant from the settlement funds, ensuring she is not undercompensated.

The appellant's employee drove a crop sprayer across a private bridge on the respondent's farm.

The bridge collapsed because the outer three feet on either side were unsupported by steel beams, a hidden danger of which the driver was not warned.

The trial judge dismissed the action, finding the driver's failure to stay centered caused the accident and the lack of warning was not a factual or legal cause.

The Court of Appeal allowed the appeal, holding that the trial judge erred by conflating causation with the standard of care and by defining the duty to warn too narrowly.

The respondent breached its duty under s. 3(1) of the Occupiers' Liability Act by failing to warn of the hidden danger, which was both a factual and reasonably foreseeable legal cause of the accident.

The court dismissed a motion to strike the jury notice following closing arguments in a negligence trial arising from a motor vehicle accident.

The plaintiffs objected to 19 statements made by defence counsel in his closing address, alleging they were inflammatory, invited improper reasoning, misstated the law, and appealed to emotion.

The court found some statements objectionable but determined that corrective jury instructions were sufficient to remedy any prejudice, making discharge of the jury unnecessary.

The jury subsequently found the defendants liable in negligence, apportioning liability at 93% to one defendant and 7% to the other.

Three consolidated civil actions arose from a motor vehicle accident on April 22, 2016, near Stouffville, Ontario, involving three vehicles.

The defendant Rae argued he owed no duty of care to the plaintiffs.

The court ruled on the duty of care issue at the close of the plaintiffs' case, finding that Rae owed a duty of care to all plaintiffs as a driver to other users of the roadway.

The court applied established jurisprudence recognizing the duty of care owed by drivers to other road users and rejected Rae's arguments based on the distinction between nonfeasance and misfeasance, finding that driving is a heavily regulated activity and that the duty of care exists regardless of whether specific statutory obligations apply to the particular conduct alleged.

A residential tenant sued his landlord and pest control contractor for $600,000 in general, aggravated, and punitive damages arising from a bedbug infestation and alleged negligent application of insecticide.

The tenant also claimed $6,000 for an alleged unlawful security deposit and $7,170.01 for hotel stays and cleaning services.

The defendants moved for summary judgment to dismiss the action on the basis that the Superior Court lacked jurisdiction, as the dispute fell within the exclusive jurisdiction of the Landlord and Tenant Board (LTB) for claims under $35,000.

The court granted summary judgment, finding that the tenant's maximum recoverable damages could not exceed the LTB's monetary jurisdiction.

The plaintiff, a party under disability, sued his former lawyers for professional negligence regarding the handling of his accident benefits claim.

The defendants brought a motion to remove the plaintiff's current law firm as counsel of record, arguing a conflict of interest because a lawyer from that firm had sworn an affidavit approving a prior settlement and would likely be a key witness.

The motions judge dismissed the removal motion.

On appeal, the Divisional Court set aside the decision and ordered the firm removed, finding the motions judge erred by failing to properly consider the scope of the conflict, the plaintiff's status as a party under disability, and the likelihood that the lawyer would be called as a witness.

The plaintiff in a personal injury action served new expert reports very late, just prior to the third scheduled trial date.

The defendants objected to their admissibility due to non-compliance with the court-ordered timetable and the inability to secure responding reports.

The court found the plaintiff's explanation for the delay unreasonable, noting the issue of potential conflict with the original experts (retained through a company owned by the former solicitor's husband) was known since 2016 and highlighted by a recent mistrial decision.

The judge deemed the late reports presumptively inadmissible but deferred the final determination of admissibility to the trial judge.

The plaintiff brought a motion for leave to appeal the order of R.B. Reid J. dated November 7, 2023.

The Divisional Court granted the motion for leave to appeal, with costs reserved to the panel hearing the appeal.

The defendant brought a motion for leave to appeal an earlier order of Kaufman J. The Divisional Court denied the motion for leave to appeal and awarded costs to the responding plaintiffs in the fixed amount of $5,000 all-inclusive.

This decision addresses the costs arising from three related motions in a professional negligence action.

The plaintiff sought to strike a portion of the statement of defence, while the defendants sought production of an unredacted affidavit and removal of plaintiff's counsel.

The court previously ruled that the improvident settlement defence should not be struck and ordered affidavit production (defendants successful on these two), and dismissed the motion to remove counsel (plaintiff successful).

The court determined that the motions should be viewed discretely, not collectively, for costs purposes.

Ultimately, the defendants were awarded net costs of $3,356.19, reflecting their success on two of the three motions.

The defendants in a professional negligence action brought a motion to remove the plaintiff's current law firm as counsel of record.

The defendants argued that the law firm was in a conflict of interest because it had negotiated the settlement that the defendants alleged was improvident, and that a lawyer from the firm would be a necessary witness at trial.

The court dismissed the motion, finding that the current counsel of record had fulfilled his duty to disclose the conflict and refer the plaintiff for independent legal advice.

The court also held that it was premature to remove the firm based on the potential for a lawyer to be called as a witness, as discoveries had not yet occurred.

The dismissal was without prejudice to the defendants' right to renew the motion at a later stage.

The plaintiff sought leave to amend her statement of claim to add a claim for punitive and aggravated damages against the defendants for intentional infliction of mental distress.

The proposed claim was based on the surveillance tactics of investigators retained by defence counsel and counsel's failure to respond to inquiries.

The court dismissed the motion, finding that the proposed amendments were not tenable at law because a party cannot be vicariously liable in punitive damages for the actions of their lawyer, and opposing counsel owes no duty of care to the plaintiff.

The court also found that granting the amendment would cause non-compensable prejudice by likely requiring all counsel to be removed from the record to testify.

The appellant insurer denied third-party liability coverage to the owner of an ATV after his son, who held only a G1 licence, was involved in a serious accident while driving the ATV on a highway.

The motion judge found that the owner had only permitted his son to drive on a specific lane he mistakenly believed was not a highway, and did not permit him to drive on the highway where the accident occurred.

The motion judge concluded the owner was not in breach of Statutory Condition 4(1) at the time of the incident, and alternatively granted relief from forfeiture.

The Court of Appeal found no palpable and overriding error in the motion judge's factual findings regarding the scope of permission granted, and dismissed the appeal.

The defendants brought a motion to enforce an alleged undertaking by the plaintiff's counsel to limit the scope of the plaintiff estate's solicitor negligence claim.

The estate's action stemmed from alleged improvident settlements of long-term disability and accident benefits claims, and pressure regarding a tort claim.

The defendants argued that the plaintiff's counsel had represented, both in correspondence and to the Divisional Court, that the claim would be limited to damages arising solely from the long-term disability settlement.

The court found that the plaintiff's counsel made an enforceable solicitor's undertaking to the court, which was relied upon by the Divisional Court in a prior appeal.

The court also found that any settlement privilege attached to the correspondence was waived by the subsequent open court representation.

Consequently, the motion was granted, and the plaintiff estate was held to have waived all claims for losses, including non-pecuniary damages, arising from the settlement or management of its accident benefits and tort claims.

In a multi-party motor vehicle accident action, the plaintiffs and two of the defendants entered into a Pierringer agreement.

The non-settling defendants brought a motion to compel production of the agreement, redacted only as to quantum.

The settling parties argued that only the 'essential terms' needed to be disclosed and that the agreement itself was protected by settlement privilege.

The court granted the motion, finding that the non-settling defendants faced potential procedural prejudice and that the need to protect them outweighed the public interest in maintaining settlement privilege over the non-financial terms of the agreement.

The moving party brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the responding parties in the amount of $1,500.

The appellant, Leslie J. O’Connor, appealed a trial judge's decision to discharge a jury and render judgment in favour of the respondent, Peter St. Marthe, following a motor vehicle accident.

The appeal centered on whether the trial judge erred in ruling that counsel improperly elicited inadmissible opinion evidence from a non-party expert (Dr. Mussett) regarding the respondent's ability to work, and whether the judge erred in discharging the jury.

The Court of Appeal upheld the trial judge's decision, finding Dr. Mussett's opinion on employability was inadmissible as it went beyond the scope of his original assessment and was highly prejudicial.

The court also found no error in discharging the jury, given the significant impact of the inadmissible evidence and the trial judge's assessment of trial fairness.

The plaintiff brought a professional negligence claim against his former lawyers, alleging they failed to secure appropriate funding for his catastrophic injuries.

The defendants pleaded that the plaintiff's subsequent lawyers recommended an improvident settlement, which was approved by the court.

The plaintiff moved to strike this defence, arguing issue estoppel applied to the court-approved settlement.

The defendants moved for disclosure of the privileged portions of the affidavit filed by the plaintiff's subsequent lawyers in support of the settlement.

The court dismissed the motion to strike, finding it would be unfair to prevent the defendants from scrutinizing the settlement.

The court also ordered disclosure of the privileged affidavit portions, finding an implied waiver of solicitor-client privilege because the plaintiff's claim put the rationale for the settlement in issue.

The plaintiff brought a motion to strike the defendant's Statement of Defense due to the defendant's failure to pay an $11,000 costs award previously ordered by a Master.

The defendant sought to amend the Master's order to make the costs payable in any event of the cause, citing impecuniosity.

The court declined to amend the Master's unappealed order, noting insufficient evidence of the defendant's inability to obtain financing.

The court ordered the defendant to pay the costs by November 1, 2021, failing which her Statement of Defense would be struck.