Alan L. Rachlin

The defendants moved to dismiss or stay the plaintiffs' claim under the Fraudulent Conveyances Act, which was added after one defendant transferred property to his wife for no consideration following a personal injury action.

The plaintiffs sought damages exceeding insurance policy limits.

The court dismissed the motion, finding that a fraudulent conveyance claim can be pursued before a judgment is obtained in the main action and that joining the claims avoids multiplicity of proceedings, with the trial judge having discretion to manage the trial process to prevent prejudice.

The moving parties sought an order quashing an appeal from a Superior Court judgment on the grounds of lack of jurisdiction.

The lower court had declared the appellant mentally incapable and appointed the Public Guardian and Trustee as her litigation guardian.

The Court of Appeal determined that the order under appeal was interlocutory in nature, relating to a procedural matter rather than the merits of the proceeding, and therefore fell within the jurisdiction of the Divisional Court rather than the Court of Appeal.

The appeal was quashed without prejudice to the appellant's right to apply to the Divisional Court for leave to appeal.

The defendants brought a motion seeking the production of the plaintiff's adverse cost insurance policy (ACP) during discovery.

The plaintiff resisted, arguing that only particulars of the policy were required and that the policy itself was not relevant to the issues in dispute.

The court, interpreting Rule 30.02(3) of the Rules of Civil Procedure, held that the rule mandates disclosure and production for inspection of any insurance policy that may indemnify a party for money paid in satisfaction of a judgment, including an ACP, regardless of its direct relevance to the substantive issues of the action.

The motion was granted, and the plaintiff was ordered to produce the policy.

The appellant appealed a trial judgment dismissing his personal injury action following a motor vehicle accident.

The trial judge had found the appellant failed to prove his injuries or causation, making it unnecessary to determine the statutory threshold under the Insurance Act.

The Court of Appeal raised the issue of jurisdiction on its own motion and concluded that, because the judgment contained no declaratory relief regarding the threshold, the appeal and cross-appeal properly lay to the Divisional Court under s. 19(1.2) of the Courts of Justice Act.

The proceedings were transferred accordingly.

Following a jury trial for a motor vehicle accident where the plaintiff sought over $1 million in damages, the jury awarded $3,000 in general damages.

After applying the statutory deductible under the Insurance Act, the plaintiff's recovery was reduced to zero, resulting in the dismissal of the action.

The successful defendants sought costs of approximately $340,000 to $355,000, arguing for substantial indemnity costs from the date of their $60,000 offer to settle.

The court declined to award substantial indemnity costs, finding the offer essentially sought capitulation.

Applying a 60% partial indemnity rate and making deductions for potential duplication, the court fixed the defendants' costs at $280,000 inclusive of disbursements and taxes.

Following a jury trial for a motor vehicle accident, the plaintiff was awarded $3,000 in general damages, which was entirely eliminated by the statutory deductible under the Insurance Act.

The trial judge declined to determine the threshold motion, finding the issue moot and noting that a ruling could undermine the jury's implicit factual findings.

The court also held that the 2015 amendment to s. 267.5(9) of the Insurance Act, which requires costs to be determined with regard to the statutory deductible, operates retrospectively and applies to the upcoming costs decision.

This judgment concerns a motion to appoint a litigation guardian for the plaintiff, Ms. Huang, in a complex personal injury action that originated from a 2000 motor vehicle accident.

The court considered medical assessments and Ms. Huang's demonstrated inability to understand legal proceedings, settlement offers, and to effectively instruct counsel or represent herself.

Despite Ms. Huang's opposition, the court found her to be a person under disability, mentally incapable of representing herself in the litigation due to a Major Depressive Disorder.

Consequently, the motion was granted, and the Public Guardian and Trustee was appointed as her litigation guardian.

The defendant, Anciento M. Braga, brought a motion for a capacity assessment of the plaintiff, She He Huang, under s. 16(1) of the Substitute Decisions Act, 1992.

The court considered Ms. Huang's history of dismissing multiple counsel, rejecting significant settlement offers, and demonstrating a rudimentary understanding of trial proceedings despite a prior assessment finding capacity.

Citing concerns about her fluctuating mental state and inability to appreciate the foreseeable consequences of her litigation decisions, the court ordered Ms. Huang to undergo a new capacity assessment.

The costs of the assessment and interpreter services were to be borne by Ms. Huang from her income replacement benefits.

The deceased, a non-swimmer, drowned in Lake Simcoe while visiting the respondents' cottage.

The appellants brought an action in negligence and negligent misrepresentation, alleging the respondents failed to warn the deceased of the lake's dangers and falsely represented that the lake was safe and shallow.

The motion judge dismissed the action on summary judgment, finding no special relationship or duty of care.

The Court of Appeal upheld the dismissal, agreeing that the respondents did not control the lake, did not create a risky situation, and owed no duty to warn the deceased of obvious dangers removed from their property.

The plaintiff was involved in a motor vehicle accident and commenced tort and accident benefits actions.

After multiple changes in counsel and a capacity assessment confirming she was capable, the plaintiff became self-represented.

The case management judge attempted to appoint Amicus Curiae to assist the plaintiff at trial, but the relationship between the plaintiff and proposed counsel broke down.

The plaintiff insisted on representing herself and refused further assistance.

The court reluctantly discontinued efforts to appoint Amicus Curiae and scheduled the trial and outstanding motions.

The plaintiffs appealed an interlocutory order bifurcating the trial of their personal injury action into separate liability and damages phases.

The motion judge had ordered the bifurcation over the plaintiffs' objections.

The Divisional Court allowed the appeal, holding that Rule 6.1.01 of the Rules of Civil Procedure requires the consent of all parties to bifurcate a trial.

The clear and unambiguous language of the rule occupies the field, thereby ousting the court's inherent jurisdiction to order bifurcation without consent.

The appellant, an Ontario resident, was injured in a motorcycle accident in British Columbia while a passenger on a motorcycle driven by an Alberta resident.

The appellant sued the driver, his insurer, and her own Ontario insurer in Ontario.

The driver successfully moved to stay the action against him for lack of jurisdiction.

On appeal, the appellant argued her Ontario insurance contract, which required her to sue her insurer in Ontario, was a presumptive connecting factor giving Ontario jurisdiction over the entire dispute.

The Court of Appeal dismissed the appeal, affirming that an insurance contract is not a presumptive connecting factor over an extra-provincial tortfeasor, and declined to apply the forum of necessity doctrine as the appellant could pursue her claim in British Columbia.

A fire broke out in the appellants' garage while their son, the respondent, was working on his car.

The appellants' home insurer paid for the property damage and brought a subrogated action against the respondent's automobile insurer.

The trial judge dismissed the subrogated claim on the basis that the respondent was an unnamed insured under the homeowner's policy, and an insurer cannot subrogate against its own insured.

The Court of Appeal upheld the decision, finding that the respondent fell within the policy's definition of an insured, had an insurable interest in the property based on the factual expectancy test, and that policy reasons strongly militated against allowing an insurer to sue its own insured.

In a medical negligence action arising from the alleged failure to diagnose fetal spina bifida on obstetrical ultrasound, the plaintiffs moved to amend their statement of claim to assert personal wrongful birth claims and plead discoverability under the Limitations Act, 2002.

The defendant radiologist opposed the amendments, arguing they introduced a new cause of action outside the limitation period and sought summary judgment dismissing the action as statute‑barred.

The court held the proposed amendments did not introduce a new cause of action but merely provided further particulars and clarification of claims already implicit in the factual matrix of the original pleading.

The court also found a genuine issue for trial regarding discoverability because expert opinion was required to determine whether the ultrasound findings should have been diagnosed as spina bifida.

Leave to amend was granted and the limitation defence could not be resolved on summary judgment.

Following the granting of summary judgment dismissing a wrongful death action arising from a drowning incident, the court addressed costs.

The plaintiffs argued that no costs should be awarded due to the tragic circumstances and potential financial hardship.

The court held that while tragic circumstances and the losing party’s ability to pay may be relevant considerations, the evidence demonstrated the estate held assets exceeding approximately $1 million and the plaintiffs could reasonably anticipate a costs award.

The court therefore exercised its discretion to award partial indemnity costs for both the summary judgment motion and the action, taking into account the reasonable expectations of the parties and the principles articulated by the Court of Appeal regarding proportional and predictable costs awards.

The defendants moved for summary judgment dismissing a negligence action arising from a drowning at Lake Simcoe during a social visit to their cottage.

The plaintiffs alleged the defendants negligently misrepresented that the lake was safe and failed to warn a non‑swimmer of risks or provide safety equipment.

The court held that no special relationship existed giving rise to a duty of care and that the alleged statements about the lake’s safety did not constitute negligent misrepresentation.

The deceased was an adult who voluntarily entered the water using his own flotation device, and the lake was not part of the defendants’ property.

Applying Hryniak v. Mauldin, the court found no genuine issue requiring a trial.

Following a successful jurisdiction motion, the moving defendant sought substantial costs of the Ontario proceeding.

The responding plaintiff argued that no costs should be awarded because the motion raised novel post-Van Breda jurisdiction issues intertwined with uninsured and underinsured automobile coverage provisions.

The court accepted that submission, finding the motion was reasonably brought and reasonably resisted and that the novelty and complexity of the issues made it fair for each party to bear their own costs.

No costs were awarded.

The appellants appealed a summary judgment dismissing their personal injury claim against the Toronto Transit Commission after a slip and fall at a transit station.

The motion judge found no objective evidence of a hazard on the stairs and concluded the TTC met its statutory duty of care as an occupier.

The Court of Appeal upheld the decision, finding no error in the motion judge's application of the summary judgment test or his reliance on the uncontradicted evidence regarding the condition of the stairs and the TTC's maintenance practices.

An Ontario resident injured as a passenger in a British Columbia motorcycle accident sued the Alberta-resident driver in Ontario and also sued her Ontario automobile insurer under uninsured and underinsured coverage.

On the driver's motion to stay for want of jurisdiction, the court held there was no real and substantial connection between Ontario and the tort claim.

The inclusion of the contractual insurance claim against the Ontario insurer did not create jurisdiction over the out-of-province tort defendant.

The forum of necessity doctrine did not apply because the plaintiff retained access to justice through proceedings in British Columbia and could still pursue insurance coverage in Ontario.

The respondent was injured in a motor vehicle accident and sued for non-pecuniary damages.

The trial judge found the respondent met the statutory impairment threshold but dismissed the action because the respondent did not provide corroborating evidence of his change in function from a witness other than himself, as required by s. 4.3(5) of O. Reg. 461/96.

The Divisional Court allowed the appeal, holding that the regulation does not preclude the injured person from providing the corroborative evidence.

The Court of Appeal agreed, finding that the regulation requires corroboration of the physician's evidence, which can be provided by the injured person's own testimony.