Alan L. Rachlin

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.

The plaintiff in a motor vehicle accident claim brought a motion to strike the defendants' jury notice due to the suspension of civil jury trials during the COVID-19 pandemic.

The court granted leave to bring the motion after the action was set down for trial, finding the pandemic constituted a substantial and unexpected change in circumstances.

Applying a five-factor analysis, the court concluded that the plaintiff would suffer prejudice from further delay, while the defendants failed to demonstrate specific prejudice.

The motion was granted, and the matter was directed to proceed as a judge-alone trial.

The defendants appealed a motion judge's decision dismissing their motion to remove the plaintiff's counsel of record.

The plaintiff sued their former lawyers (the defendants) for professional negligence, alleging they recommended an improvident settlement of a long-term disability claim.

The defendants argued the plaintiff's current counsel was in a conflict of interest or would be a necessary witness regarding a subsequent tort settlement.

The Divisional Court dismissed the appeal, agreeing with the motion judge that the motion was premature because discoveries had not yet occurred and it was not established that current counsel would likely be a necessary witness.

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 plaintiff brought a motion to strike the defendants' jury notice after the trial was delayed due to the suspension of civil jury trials in Toronto during the COVID-19 pandemic.

The plaintiff argued that the delay and uncertainty of a jury trial caused financial prejudice.

The court dismissed the motion, finding that the anticipated eight-month delay to the next scheduled jury sittings did not justify depriving the defendants of their substantive right to a jury trial, especially since they had based their litigation strategy on that right.

The trial was adjourned to the June 2021 civil jury sittings.

The moving party, a party under disability represented by the Public Guardian and Trustee as litigation guardian, sought leave to appeal an order approving a $1 million settlement of her motor vehicle accident claims.

The moving party was previously made subject to an order under Rule 37.16 prohibiting her from bringing further motions or appeals without leave due to a history of frivolous proceedings.

The Court of Appeal dismissed the motion, holding that the moving party lacked standing to act independently of her litigation guardian, and that the proposed appeal lacked reasonable grounds and would be an abuse of process.

The appellants appealed a trial judgment awarding the respondents over $2 million in damages arising from a motor vehicle accident where a pedestrian was struck.

The appellants argued the trial judge erred by discharging the jury mid-trial, refusing a mistrial, mishandling evidence of CPP disability benefits, and excluding surveillance videos.

The Court of Appeal dismissed the appeal, finding the trial judge had ample basis to discharge the jury due to scheduling issues and late disclosure of an umbrella insurance policy.

While the surveillance videos should have been admitted, their exclusion did not cause a miscarriage of justice given their minimal probative value.

The Court of Appeal previously awarded Traders General Insurance Company its costs of a panel review motion and invited written submissions on quantum.

Traders sought partial indemnity costs of $24,158.71, while the responding parties argued for $7,500 due to duplication of work from the initial motion.

The Court agreed there was some duplication and fixed costs at $15,000 inclusive of disbursements and taxes.

Traders General Insurance Company moved to review a single judge's decision denying it leave to appeal an order under the Bankruptcy and Insolvency Act.

The underlying dispute involved a bad faith claim assigned to the respondents by a discharged bankruptcy trustee following a motor vehicle accident judgment.

The Court of Appeal held that it had jurisdiction to review the single judge's decision because the judge had mistakenly declined jurisdiction by failing to address the merits of the leave motion.

Applying the Pine Tree Resorts test, the Court granted leave to appeal, finding that the proposed appeal raised prima facie meritorious issues of general importance to bankruptcy practice.

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.

The appellant landlord appealed a summary judgment finding it liable for injuries sustained by the respondent motorcyclist, who collided with donkeys that had escaped from the appellant's tenanted property.

The motion judge found the landlord negligent for failing to inspect or repair fences and for permitting an unlocked gate.

On appeal, the Court of Appeal upheld the liability finding, noting the landlord had admitted responsibility for the condition of the fence.

However, the Court found the motion judge erred by granting judgment without determining the issue of contributory negligence.

The appeal was allowed in part, and the issue of contributory negligence was remitted to trial along with damages.

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.

This appeal concerns the correct analytical approach to fixing costs when an action is settled before adjudication on the merits.

Two infant plaintiffs were catastrophically injured when struck by a vehicle in 2004.

After more than ten years of litigation, the parties settled in June 2017, three months before trial.

The settlement provided for $1 million from each of the Potrebics and Pipolos, with costs to be determined by the court.

The motion judge apportioned costs based on his assessment of the parties' respective liability for damages, finding the Potrebics solely responsible.

The appellants challenged this apportionment and the quantum of costs awarded.

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 sued his former solicitor for professional negligence regarding a statutory accident benefits claim.

The solicitor sought production of documents from the appellant's subsequent infant settlement, which had been sealed by court order.

The motions judge granted the solicitor standing under Rule 38.11 to vary the sealing order and access the documents.

The Divisional Court allowed the appeal, holding that a sealing order does not supplant the Rules of Civil Procedure.

The proper mechanism for the solicitor to seek production of the documents, and for the appellant to assert privilege, is the documentary discovery process under Rule 30, not a motion to vary the sealing order.

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.