Alan L. Rachlin

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 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.

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 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.

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 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.

This appeal concerned the standing of a defendant to challenge a s. 38 order under the Bankruptcy and Insolvency Act (BIA).

Traders General Insurance Co. appealed the dismissal of its motion to set aside a s. 38 order that allowed the Carrolls to commence a bad faith action against Traders.

The Court of Appeal affirmed that a proposed defendant generally lacks standing to challenge a s. 38 order, except in limited circumstances like abuse of process or misrepresentation, which were not found here.

The court also addressed, obiter, arguments regarding whether the Carrolls were creditors and whether the bad faith claim was property of the bankrupt estate, concluding these were not determinative issues for the s. 38 order itself, but rather for the merits of the assigned action.

The appeal was dismissed.

The plaintiff brought a motion to strike the defendants' jury notice in a personal injury action.

Due to the COVID-19 pandemic, civil jury trials in the Central East Region were suspended until well into 2022.

The court granted the motion, finding that the prejudice to the plaintiff caused by further delay outweighed the defendants' right to a jury trial, especially given the age of the case and previous adjournments.

At the opening of a scheduled trial, the defendants requested an adjournment because the plaintiff produced a laptop computer containing over 14,000 files the day before trial.

The plaintiff's claim included $1.8 million for past and future income loss, making the newly disclosed work documents highly material.

The court granted the adjournment, finding that trial fairness required the defendants to have an opportunity to inspect the new productions and conduct further examination for discovery.

The defendants were awarded costs thrown away, with the amount to be determined by the trial judge.

The court issued a Trial Management Endorsement providing procedural directions for an upcoming 11-day virtual trial to be conducted via Zoom and CaseLines due to the COVID-19 pandemic.

The endorsement outlined requirements for the electronic trial record, witness management, document uploading, exhibit marking, and the preparation of a Joint Document Book in accordance with appellate guidance.

The plaintiffs brought a motion to strike the defendant's jury notice due to trial delays caused by the COVID-19 pandemic.

The plaintiffs argued they would suffer prejudice from the delay itself, the impact on the plaintiff's mental health, and the financial erosion of her claim for economic loss.

The defendant argued the case involved chronic pain and credibility issues best suited for a jury, and that his litigation strategy relied on a jury trial.

The court found the plaintiffs established prejudice due to delay and financial erosion, which outweighed the defendant's broad assertions of prejudice.

The court conditionally struck the jury notice, ordering the trial to proceed before a judge alone on the adjourned date, but allowing for automatic reinstatement of the jury notice if the trial is further adjourned to a time when civil jury trials have resumed.

This is a costs endorsement for three inter-related appeals (C66633, C64430, and C64479).

The parties resolved costs for appeal C64479.

For appeals C64430 and C66633, the Court found that success was mixed, and therefore, there would be no order as to costs for those appeals.

The appellant sought to set aside a motion judge's order dismissing her motion to set aside the administrative dismissal of her appeal.

The appeal had been administratively dismissed twice due to the appellant's repeated failure to meet perfection deadlines, despite extensions.

The Court of Appeal dismissed the appellant's motion, finding no basis to interfere with the motion judge's discretion, noting the extensive delay, the unconvincing justification for non-perfection, and the lack of proof for the appellant's claims of material tampering or respondent non-cooperation.

Traders General Insurance Company brought an unsuccessful motion to strike an action, which was tantamount to a motion for summary judgment.

This decision addresses the costs of that motion.

The Plaintiffs sought full indemnity costs, alleging serious misconduct by Traders, while the Trustee in Bankruptcy sought partial indemnity costs.

The court found no fraud or misconduct amounting to contempt by Plaintiffs' counsel.

Considering the importance and difficulty of the motion, the court awarded the Plaintiffs partial indemnity costs of $25,438.16 and the Trustee in Bankruptcy partial indemnity costs of $7,262.33, both inclusive of disbursements and HST, payable by Traders within 21 days.

An insurer appealed a decision finding that an insured's adult daughter was covered under a homeowner's insurance policy after she was injured falling from a porch.

The daughter had lived with her mother for over 60 years, paid rent, and performed household chores.

The policy excluded coverage for persons residing in the household except residence employees.

The application judge found the daughter was not a residence employee but was covered as a tenant.

The Court of Appeal allowed the insurer's appeal, holding that once a person is established as a member of the household, they cannot be covered as a tenant under the exclusion clause, regardless of whether they pay rent.

The appellant insurer appealed a motion judge's determination that its automobile insurance policy, which included an OPCF 44R Family Protection Coverage endorsement, provided uninsured motorist coverage to the spouse of an employee.

The employee was a delivery driver with a flexible schedule who had discretionary access to the company van during business hours.

The spouse was struck by an uninsured motorist after the company opened for business but before the employee arrived at work.

The court held that the van was available for the employee's "regular use" at the time of the accident, satisfying the temporal nexus requirement under section 2 of the endorsement.

The spouse qualified as an "insured person" under section 1.6(b) of the endorsement.

Following a successful motion by the defendant to compel the plaintiff to attend a neuropsychological assessment, which necessitated a trial adjournment, the parties made written submissions on costs.

The court awarded the defendant partial indemnity costs of $4,868.71 for the motion.

However, because the defendant delayed in arranging the assessment and notifying the plaintiff, the court awarded the plaintiff $3,762.90 for costs thrown away on wasted trial preparation.

The net costs award of $1,106.71 was ordered payable by the plaintiff to the defendant in any event of the cause.

This appeal addressed the scope of expert disclosure required from a defendant at the discovery stage, specifically concerning foundational documents like letters of instruction, after a Rule 53.03 compliant expert report has been served but before a decision to call the expert at trial has been made.

The Master had ordered disclosure, finding an implied waiver of litigation privilege.

The Superior Court allowed the appeal, holding that serving a Rule 53.03 report does not automatically waive litigation privilege over foundational documents at the discovery stage, distinguishing cases where experts are confirmed to testify at trial.

The court emphasized that privilege continues unless there is a reasonable suspicion of improper influence or specific rules mandate disclosure.