Alan L. Rachlin

Several defendants in an insurer’s civil fraud action brought motions seeking full particulars of allegations relating to allegedly inflated or fabricated accident benefit invoices submitted through medical service providers.

The insurer alleged improper billing practices involving treatment plans and treatment invoices but refused to provide detailed particulars, asserting privacy concerns under the Personal Health Information Protection Act and offering only a spreadsheet during discovery.

The court held that the pleadings lacked sufficient material facts and that allegations amounting to misrepresentation require full particulars under Rule 25.06(8) of the Rules of Civil Procedure.

The court rejected the argument that the issue became moot after the insurer served an amended pleading removing the words “fraud” and “collusion”, finding the core allegations still required particularization.

The insurer was ordered to deliver the requested particulars within 30 days.

The appellant appealed a Divisional Court decision upholding a master's dismissal of a motion to add the respondent insurer as a named party defendant.

The Court of Appeal allowed the appeal, finding that the appeal judge erred by determining a novel question of law without notice to the parties and before relevant facts were determined.

The Court also found the master erred in concluding the proposed claim was untenable at law, as the claim was novel and not clearly impossible to succeed.

The appellant was granted leave to amend the statement of claim.

The appellant appealed a trial judgment awarding damages for past and future loss of income and earning capacity to the respondent following a motor vehicle accident.

The appellant argued the trial judge erred by making an award based on ownership income without proper financial statements, a business valuation, or a specific formula.

The appellant also challenged the trial judge's allowance of a per quod claim by the respondent's corporation.

The Court of Appeal dismissed the appeal, finding that the trial judge's assessment of loss of earning capacity was reasonable and owed deference.

The court also upheld the trial judge's factual finding of an employer-employee relationship supporting the per quod claim.

The plaintiff brought a motion to strike the defendant insurer’s statement of defence for failing to produce a specified representative for examination for discovery.

The plaintiff insisted that a particular adjuster be examined despite the adjuster having retired from the insurer after an earlier order permitting the plaintiff to select the corporate representative.

The court considered Rule 31.03(2) of the Rules of Civil Procedure and authorities regarding the compellability of former employees at examinations for discovery.

The court held that a former employee is not compellable as a corporate representative for discovery.

The motion to strike the defence was dismissed, but the defendant was ordered to produce another representative of its choosing within 120 days.

The plaintiff sued his former lawyer for professional negligence, alleging the lawyer failed to file a statement of claim after issuing a notice of action, thereby causing the plaintiff to miss a limitation period.

The defendant lawyer moved for summary judgment.

The court found that the lawyer was retained on a limited basis solely to issue a notice of action to preserve the limitation period, which he did.

The lawyer declined to proceed further because the plaintiff failed to pay the agreed retainer and the lawyer questioned the case's viability.

The court held there was no genuine issue for trial as the lawyer fulfilled his contractual obligations and owed no duty to take further steps without instructions or payment.

The action was dismissed.

The defendant appealed the trial judge's decision to grant a non-suit dismissing its third-party claim against the plaintiff's son.

The plaintiff, a 92-year-old woman, was injured when she slipped on ice outside her apartment building after her son dropped her off.

The defendant argued the son owed a duty of care based on his past habit of assisting her.

The Divisional Court upheld the trial judge's finding that there was no factual foundation to impose a legal duty of care on the son, as the mother was an independent person capable of caring for herself, and voluntary past assistance does not create a legally binding duty.

The appellant challenged a jury verdict in a motor vehicle personal injury action, arguing that the trial judge's charge inadequately corrected improper closing submissions on non-pecuniary damages and that the $200,000 award for pain and suffering was inordinately high.

The Court of Appeal held that the trial judge expressly instructed the jury not to use a mathematical extrapolation approach and provided adequate guidance on assessing general damages.

Applying the deferential standard for appellate review of jury awards, the court found no substantial wrong or miscarriage of justice and concluded the award was not so plainly unreasonable and unjust as to warrant intervention.

The appeal was dismissed with fixed costs to the respondents.

Following dismissal of a motion seeking removal of the plaintiffs’ solicitor of record and the litigation guardian, the court determined the appropriate costs award.

The plaintiffs sought substantial indemnity costs or, alternatively, higher partial indemnity costs, arguing they were successful on the motion and that serious allegations had been made against their counsel.

The court found the result reflected divided success because issues concerning the litigation guardian were addressed only after the motion was brought, and there had been significant management deficiencies by the plaintiffs’ solicitor during the litigation.

Considering the factors under Rule 57.01 of the Rules of Civil Procedure and the conduct of the litigation, the court substantially reduced the costs claimed.

Partial indemnity costs of $10,000 inclusive of HST and disbursements were awarded to the plaintiffs.

The appellants challenged a jury verdict arising from a construction site injury at a partly-built house, arguing errors in the causation charge, occupiers' liability analysis, trial management, jury instructions, and refusal to permit further objections.

The Court of Appeal held that the trial judge's causation charge properly reflected the but-for framework and the apportionment scheme under the Negligence Act, and in any event no substantial wrong or miscarriage of justice occurred.

The court also held that the jury's finding that the site was secure did not preclude liability because the workers had been told defects needed to be fixed and could only do so by entering the site.

Complaints about judicial interventions, the summary of evidence, and the proposed fresh evidence were rejected.

The appeal was dismissed with costs.

The appellants appealed a trial judgment dismissing their personal injury action following a jury verdict that awarded zero damages for a motor vehicle accident.

The appellants argued the verdict was perverse because objective evidence showed a soft tissue injury.

The Divisional Court dismissed the appeal, holding that the jury's assessment of credibility and conclusion that the injury was too slight to warrant compensation were entitled to great deference and supported by the evidence.

The court also found no errors in the trial judge's charge to the jury.

The plaintiff was injured in a single-vehicle accident involving his own vehicle and sought to amend his statement of claim to assert a claim against his own automobile insurer under the OPCF 44R family protection endorsement.

He alleged that an unlicenced acquaintance was driving the vehicle at the time.

The motion judge dismissed the motion on the basis that the claim was not tenable in law.

The Divisional Court dismissed the appeal, finding that while the motion judge erred in her interpretation of the endorsement, the proposed claim was ultimately untenable in any of the possible factual scenarios.

Following a civil jury trial dismissing a medical malpractice claim, the successful defendant sought partial indemnity costs exceeding $74,000.

The court assessed costs under Rule 57 of the Rules of Civil Procedure and the principles of fairness, reasonableness, and proportionality articulated by the Court of Appeal.

While the court accepted the reasonableness of senior counsel’s rates and most claimed hours, it reduced mediation costs and limited recovery for junior counsel’s trial preparation and attendance where the work resembled tasks that could have been performed by a law clerk.

The court emphasized that training junior counsel should not be funded by the opposing party through costs awards.

Total costs were fixed at $55,437.84 inclusive of fees, HST, and disbursements.

Following dismissal of the plaintiff’s motion to set aside a registrar’s order dismissing the action as abandoned and to substitute a different defendant, the court addressed the issue of costs.

The proposed defendant sought partial indemnity costs of $9,994.99.

The court applied the discretion under s.131 of the Courts of Justice Act and the factors in Rule 57.01 of the Rules of Civil Procedure, emphasizing proportionality and fairness.

Although the motion involved some complexity due to the misidentification of the proper defendant and required cross-examinations and a factum, the court found the amount sought excessive.

Costs were fixed at a reduced amount on a partial indemnity basis.

The plaintiff brought a motion to set aside a Registrar’s order dismissing the action as abandoned following prolonged delay in prosecuting a motor vehicle accident claim.

The court applied the contextual test from Scaini v. Prochnicki, considering explanation for delay, inadvertence in missing deadlines, promptness of the motion, and prejudice to the defendant.

The court found multiple unexplained delays in the litigation, including failures to provide basic documents to the defendant’s insurer and a lengthy delay before bringing the motion after the dismissal order.

The plaintiff’s explanations, including counsel’s health issues and a mislabeled file, were found insufficient and not credible in light of earlier delays.

The presumption of prejudice to the defendant was not rebutted.

The motion to set aside the dismissal order was dismissed.

The plaintiff brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s order dismissing the action as abandoned under Rule 48.15 for failure to serve the statement of claim within the required time.

The plaintiff also sought an extension of time for service and an amendment substituting the correct defendant on the basis of misnomer.

The court applied the Reid factors governing motions to set aside administrative dismissals and held that the plaintiff failed to provide a satisfactory explanation for the litigation delay, did not bring the motion promptly, failed to establish inadvertence, and did not rebut the presumption of prejudice arising after the expiry of the limitation period.

The court further held that the proposed substitution was not a case of misnomer but an attempt to add a new party after the limitation period expired.

The motion to set aside the dismissal and the request to amend the claim were therefore refused.

Following a rear‑end motor vehicle collision, the plaintiffs sought damages for physical, psychological, and economic losses.

Liability was admitted, but the defendant disputed causation and the extent of damages, arguing the plaintiff’s ongoing back problems were attributable to a prior martial arts injury and pre‑existing disc herniation.

The court preferred the evidence of several treating and examining physicians and found the collision aggravated the pre‑existing disc condition, precipitating surgery that led to chronic pain and functional impairment.

The court also accepted expert psychological evidence that chronic pain and depression caused genuine cognitive impairments affecting the plaintiff’s work capacity.

Damages were awarded for general damages, loss of earning capacity, housekeeping costs, medical expenses, a per quod claim by the plaintiff’s company, and a Family Law Act claim by the plaintiff’s child.

During a civil medical malpractice jury trial, the plaintiff sought to read portions of the defendant physician’s examination for discovery relating to pre-surgery discussions about the desired breast size following cosmetic surgery.

The defendant requested that additional portions of the discovery transcript also be read in pursuant to Rule 31.11(3) of the Rules of Civil Procedure, arguing they qualified or explained the plaintiff’s selected excerpts.

The court reviewed the purpose and scope of Rule 31.11(3) and the jurisprudence governing qualifying read-ins.

The court held that additional discovery evidence may be compelled where necessary to prevent the trier of fact from being misled by partial admissions or incomplete answers.

Because the additional answers addressed the same issue and could qualify the earlier discovery evidence, the court directed that both sets of questions and answers be read to the jury.

The defendant insurer brought a motion under Rule 31.03(2) of the Rules of Civil Procedure to set aside the plaintiff’s notice of examination seeking to examine an employee from its accident benefits department as a discovery witness.

The defendant argued that, due to a firewall maintained between accident benefits and third‑party bodily injury claims, an adjuster from the bodily injury department should instead be examined.

The court held that an examining party has a prima facie right to choose which officer, director, or employee of a corporate party to examine, and that this choice should not lightly be interfered with.

Given the plaintiff’s express consent to the sharing of information between departments, the concerns underlying the firewall policy were addressed.

The motion to set aside the examination was dismissed.

Following a successful motion by non-parties to set aside an ex parte Anton Piller order, the court addressed the issue of costs.

The successful non-parties sought substantial indemnity costs, arguing that the order should never have been obtained and that their legal expenses were reasonable given the urgency and intrusiveness of the order.

The applicants opposed substantial indemnity costs and argued that the matter had been overworked and that no misconduct justified enhanced costs.

The court held that although the Anton Piller order had been set aside, there was no intentional or improper conduct in obtaining the ex parte order that would justify substantial indemnity costs.

Costs were therefore awarded on a partial indemnity basis.

The appellant appealed a summary judgment decision finding implied consent for his son to drive his vehicle.

The motions judge had drawn an adverse inference against the appellant for failing to make efforts to provide his son's evidence.

The Court of Appeal allowed the appeal, finding the motions judge erred by drawing the adverse inference without first assessing the credibility of the appellant's own evidence, which strongly suggested a lack of consent.

The summary judgment motion was dismissed.