Alan L. Rachlin

The moving party insurer sought to set aside an ex parte order granted under s. 38 of the Bankruptcy and Insolvency Act, which allowed the plaintiffs to pursue a bad faith claim against the insurer that had been assigned to them by the discharged trustee in bankruptcy.

The court dismissed the motion, finding that the insurer lacked standing to challenge the s. 38 order as it was not a creditor, debtor, or aggrieved party.

The court further held that the s. 38 order was properly obtained without notice to the insurer, the discharged trustee had the authority to assign the chose in action, and the bad faith claim was property that vested in the bankrupt estate.

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.

This endorsement, issued by the Case Management Judge, addresses a request for leave by Aviva General Insurance Company to bring a motion to amend a prior order to add Aviva as a statutory third party in various actions arising from a specific incident.

The court directs that any such request for leave must be made by way of a motion in writing, on notice to all necessary parties, in accordance with Rule 37.12.1(4) of the Rules of Civil Procedure.

The endorsement also includes directions for distributing the order and notifying an incarcerated defendant.

The defendant brought a motion seeking to transfer an action from Oshawa to Toronto, either to be tried together with an existing Toronto action or as a standalone transfer.

The plaintiff opposed the motion and delivered notice of intent to make oral argument.

The court, noting that the motion sought additional relief beyond a simple transfer and that the plaintiff had requested an oral hearing under Rule 37.12.1(5)(d), ordered that the defendant's motion be set down for an oral hearing before a judge in the Toronto Region.

The defendant, Diane Marie Daniher, brought a motion seeking leave to compel the plaintiff, Ryan Nelson, to attend an independent neuropsychological examination.

The motion was brought after the action had been placed on a trial list, requiring leave under Rule 48.04(1).

The court found that a recently served neuropsychological report by the plaintiff's expert, Dr. Cancelliere, presented an unexpected and substantial change in evidence regarding the severity and etiology of the plaintiff's traumatic brain injury, differing from a previous expert's opinion.

The court granted leave and ordered the examination, concluding that the prejudice to the defendant in proceeding to trial without an opportunity to respond to the new expert evidence outweighed the prejudice to the plaintiff from an inevitable trial adjournment.

The plaintiff pedestrian was struck and severely injured by a stolen motor vehicle.

Her spouse was employed as a delivery driver and had a company van available for his regular use during business hours.

The plaintiffs brought a motion to determine whether the employer's automobile insurance policy, which included an OPCF 44R Family Protection Change Form, provided excess coverage for the injuries.

The court found that because the employer's shop was open and the van was available for the spouse's use at the time of the accident, the policy provided coverage, even though the spouse was not yet at work or using the vehicle when the accident occurred.

The defendants brought a motion seeking leave to amend their Statement of Defence and to disqualify the plaintiff's counsel due to an alleged conflict of interest.

The plaintiff opposed both requests.

The court granted leave for the defendants to amend their Statement of Defence, finding the proposed amendments legally tenable and noting the early stage of proceedings precluded prejudice.

However, the court dismissed the request to remove plaintiff's counsel, deeming it premature and based on unwarranted speculation, emphasizing the litigant's right to counsel of choice and the high threshold for disqualification.

The defendants moved for a stay of the plaintiffs' action until the plaintiff, Tan Duc Ngo, completed a neuropsychological assessment.

This assessment had been previously attempted but terminated due to the plaintiff's health issues, leading to a prior motion before Di Luca J. to compel re-attendance, which was denied without prejudice to renew if new evidence of improved health emerged.

The current motion for a stay was dismissed by Edwards J., who found it an attempt to circumvent Di Luca J.'s order without presenting the required new evidence.

However, the court, acting as case management judge, ordered the plaintiff's counsel to obtain a medical report addressing the plaintiff's current ability to undergo the assessment and to testify at trial, and to explain any discrepancies.

Costs were to be resolved by the parties or through written submissions.

The appellants appealed the trial judge's decision dismissing their motor vehicle accident action from 2003.

The appellants, who were self-represented and elderly, sought a further adjournment of their jury trial, citing age and health issues.

The trial judge declined the adjournment and dismissed the action after a lengthy history of delay, multiple changes of counsel, and failure to comply with court orders.

The appellants failed to provide medical evidence supporting their request for adjournment.

The Court of Appeal upheld the trial judge's decision, finding that the discretion to grant or deny an adjournment was exercised judicially on proper principles, balancing the interests of all parties and the administration of justice.

The respondent slipped and fell on a wet floor in the vestibule of a department store operated by the appellants, fracturing her kneecap.

The trial judge found the appellants liable for negligence under the Occupiers' Liability Act, concluding that the wet floor caused the fall and that the appellants lacked an effective inspection or maintenance system.

The appellants appealed, arguing the trial judge failed to require proof that the wet floor created an unreasonable risk of harm and erred in rejecting expert evidence about the safety of the tile flooring.

The Court of Appeal upheld the trial judgment, finding the trial judge properly applied the statutory duty of care and reasonably rejected the expert evidence.

Appeal from a Superior Court judgment in a personal injury action arising from a motor vehicle accident.

The defendant-appellants admitted liability, and the sole issue was damages.

A jury awarded substantial damages for future loss of income, cost of medical care, and $225,000 in general damages for pain and suffering.

The appellants challenged the award on three grounds: restriction of expert testimony, failure to declare a mistrial due to inappropriate closing submissions, and insufficient guidance on the range for non-pecuniary damages.

The Court of Appeal dismissed all grounds of appeal and upheld the jury's award.

The plaintiff sued numerous lawyers, insurers, medical assessors, experts, and court reporting parties arising from the handling of underlying motor vehicle accident tort and accident benefits litigation.

The court applied the summary judgment framework and held that the claims were either statute-barred, defeated by the absence of any duty of care, barred by expert witness immunity, unsupported by admissible evidence, or lacking any proof of compensable damage.

Claims against former counsel failed for limitation and lack of expert support and causation; claims against opposing counsel and insurers failed because no duty was owed to an adverse party; claims against expert assessors failed because their litigation-related reports were immune from suit.

Allegations that discovery transcripts had been doctored were unsupported and did not disclose any triable issue.

Summary judgment was granted to all defendants and the action was dismissed.

The plaintiff brought a motion to restore two motor vehicle accident actions to the trial list after they were dismissed by the trial judge for failure to comply with trial management orders.

The Court of Appeal had referred the matters back for reconsideration on a more fulsome record.

The Superior Court dismissed the motion and both actions, finding that the plaintiff remained in intentional breach of previous trial management orders, failed to provide new medical evidence, offered no acceptable explanation for the extraordinary delay (over 15 years for the first action), and failed to demonstrate that the defendants would not suffer non-compensable prejudice.

The applicant, who suffers from serious mental health challenges and a traumatic brain injury, moved to remove the Public Guardian and Trustee as his litigation guardian after the Consent and Capacity Board found him capable of managing his property.

The court dismissed the motion, finding that while the applicant had sufficient capacity to manage his general finances, he lacked the capacity to understand and instruct counsel in complex civil litigation.

The court emphasized the need to balance the applicant's autonomy with the rights of opposing parties to a fair proceeding and the overall goals of the civil justice system.

The moving party, Shu He Huang, sought leave to appeal an order from Justice Todd L. Archibald that appointed the Public Guardian and Trustee as her litigation guardian, following a finding that she was a person under a disability due to mental incapacity.

The court denied leave to appeal, finding that the moving party failed to satisfy either branch of the strict two-part test for leave under Rule 62.02(4).

Specifically, there were no conflicting decisions on a matter of principle, and the proposed appeal did not involve matters of general public importance beyond the immediate parties' interests.

Furthermore, the court found no reason to doubt the correctness of the motions judge's original order, addressing and dismissing each of the moving party's six grounds of appeal, which included challenges to the medical proof of incapacity, the order for capacity assessment, the allocation of assessment costs, the admissibility of the assessment report, the fairness of the assessment conditions, and the basis for appointing the Public Guardian and Trustee.

An appeal from a Superior Court judgment concerning vehicle possession and operation.

The trial judge found that neither the vehicle owner nor the son consented expressly or impliedly to possession or operation of the truck by Hayes.

The Court of Appeal upheld this finding as being open to the trial judge on the evidence.

The appeal was dismissed with costs fixed at $10,000 payable to the respondent.

The appellant slipped on ice in the parking lot of an apartment building and broke his leg.

The landlord, Cemcor Apartments Inc., had contracted with Myles Property Management Inc. to clear snow and ice from the parking lot.

The appellant sued for negligence under the Occupiers' Liability Act.

The trial judge found that Cemcor had a reasonable winter maintenance policy in place and that the parking lot was adequately cleared at the time of the accident, with the appellant's fall occurring on an isolated slippery spot.

The trial judge dismissed the claim.

On appeal, the appellant challenged both the factual findings regarding the condition of the parking lot and alleged reasonable apprehension of bias based on the trial judge's numerous interventions during cross-examination.

The Court of Appeal upheld the trial judge's decision, finding no factual error and rejecting the bias allegation.

The plaintiffs brought a motion to enforce a settlement agreement in a medical malpractice action.

The settlement was conditional on the defendants obtaining releases in a form acceptable to them.

A dispute arose regarding the scope of the release for the minor plaintiff, specifically concerning an indemnity clause for future claims by the minor after reaching majority.

The court found that the conditional nature of the settlement meant it was at an end when the parties could not agree on the form of the release.

Consequently, the plaintiffs' motion to enforce the settlement was dismissed.

The respondent fell while stepping onto a deck at the appellants' home and sued for negligence.

The trial judge found the appellants 65% liable under the Occupiers' Liability Act because the deck step was higher than standard, and also noted a breach of the Dog Owners' Liability Act.

On appeal, the Divisional Court set aside the judgment, finding the trial judge erred by failing to analyze whether the deck height created an objectively unreasonable risk of harm and by failing to make any finding that the deck height actually caused the fall.

The appeal was allowed and the respondent's claim was dismissed.