Alan L. Rachlin

Non‑party individuals brought a motion to set aside an Anton Piller order obtained ex parte in a dispute over an alleged breach of a referral agreement between law firms.

The court reviewed the stringent requirements for Anton Piller orders and Norwich orders.

Although there was some evidence suggesting a possible breach of contract by the respondents to the underlying agreement, the evidence did not establish the extremely strong prima facie case, serious damage, or real risk of destruction of evidence required for such extraordinary relief.

The court also found insufficient grounds for a Norwich order against the non‑party individuals.

The Anton Piller order was therefore set aside in its entirety and seized materials were ordered returned.

The defendants brought a motion for summary judgment in a negligence action arising from a fatal apartment fire that destroyed a converted church building.

The plaintiffs alleged the landlords failed to comply with building and fire code requirements, including unsafe wiring, lack of compartmentation and fire separation, and failure to install smoke alarms.

The court held that the action involved extensive conflicting evidence, multiple expert reports, and numerous factual disputes regarding the cause of the fire and the role of alleged safety violations.

Applying the “full appreciation” test from the Court of Appeal’s summary judgment jurisprudence, the court concluded that the motion process could not provide an adequate substitute for a trial.

The motion for summary judgment was therefore dismissed and the matter directed to proceed to trial.

Following the release of reasons on an earlier motion, the court determined the appropriate costs awards among insurers involved in a dispute regarding indemnity exposure.

The court applied s.131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, emphasizing the significance of the motion’s outcome and the potential insurance liability implications.

After reviewing the bills of costs and submissions, the court reduced certain claimed hours and adjusted the hourly rate for one party before fixing partial indemnity costs.

Costs were awarded in favour of two defendants against the proposed statutory third party.

The proposed statutory third party was ordered to pay the costs within 60 days.

Following dismissal of a civil action after a three‑day trial, the successful defendant sought partial indemnity costs.

The plaintiff conceded entitlement to costs but argued that the amount claimed—approximately two‑thirds of the defendant’s actual legal fees—was excessive and proposed a lower award based on a percentage of actual costs.

The court held that costs awards are discretionary and not determined by applying a strict formula.

After reviewing the hours spent, allocation between counsel and clerks, and the rates charged, the court found the claimed amounts reasonable despite the issues being relatively straightforward.

The court awarded the full amount of costs requested by the defendant.

The court considered a motion seeking determination of issues arising from pleadings alleging both intentional and negligent acts in a motor vehicle incident.

The moving party relied on the framework from prior Supreme Court authority addressing the characterization of intentional versus negligent conduct.

The court held that the pleadings and the driver’s guilty plea to dangerous driving did not permit a definitive characterization of the conduct at this early stage of the action.

Determining the issue without further evidentiary development risked injustice to the parties.

The motion was therefore dismissed as premature, without prejudice to renewal at a later stage.

The appellants commenced a medical malpractice action in 1995 following a motorcycle accident in 1994.

Fifteen years later, the respondents successfully moved to dismiss the action for delay under Rule 24.01.

The appellants appealed, arguing the motion judge erred in finding inexcusable delay and presumed prejudice, particularly given the availability of medical records.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings that the 15-year delay was inordinate and inexcusable, and that the appellants failed to rebut the presumption of prejudice given the potential loss of evidence from unrecorded team discussions.

The appellant appealed a finding that he breached a consent order prohibiting him from maintaining outside storage in his rear yard exceeding 75% lot coverage.

The appellant argued that 'lot coverage' included the area covered by a garage and sheds, meaning he could use 100% of the remaining open area for storage.

The Court of Appeal upheld the motions judge's interpretation that the order restricted the appellant to using 75% of the open areas of the lot as a whole for outside storage.

The appeal was dismissed.

The appellants appealed a trial judge's finding that they did not suffer a serious and permanent impairment under s. 35(5) of the Insurance Act following a motor vehicle accident.

The Court of Appeal found no palpable and overriding error in the trial judge's factual findings, including the finding that any impairment contributing to the breakdown of the appellant's marriage was not proven to be serious and permanent.

The appeal was dismissed with costs awarded to the respondent.

The appellants appealed the dismissal of their slip and fall action following a jury verdict finding no liability against the respondents.

The day after the jury was discharged, all six jurors returned to the courthouse, with one stating they were there to 'count the money', suggesting they misunderstood the effect of their verdict.

The trial judge dismissed a motion to inquire into the jury's return.

The Court of Appeal dismissed the appeal, holding that a trial judge has no jurisdiction to inquire into a jury's verdict post-discharge unless it involves a mere error in recording or transmitting the verdict.

Because the jury's written answers were clear and any error would involve a misunderstanding requiring further deliberations, the trial judge was functus officio.

The appellants appealed the trial judge's determination that the respondent met the statutory threshold for serious impairment of an important physical, mental, or psychological function following a motor vehicle accident.

They also appealed the jury's award of $16,000 for past lost income.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's threshold determination or the jury's modest award for past lost income, noting the trial was brief and simple.

The appellant grocery store owner appealed the dismissal of its crossclaim for contractual indemnity against the respondent cleaning contractor.

The crossclaim arose from a slip and fall action that was dismissed by a jury.

The appellant argued that the indemnification provisions in its standard form contracts required the respondent to pay the appellant's costs of defending the action regardless of liability.

The Court of Appeal dismissed the appeal, holding that a specific provision limiting indemnity to claims caused or contributed to by the contractor qualified a broader general indemnity provision.

As the jury found no negligence by the contractor, no indemnity was owed.

The appellants appealed the trial judge's findings on two factual issues in a bifurcated medical malpractice trial: whether the appellant doctor recommended a drug to the respondent, and whether a medical note accurately recorded a meeting.

The trial judge found against the appellants on both issues, relying on expert forensic evidence suggesting the note was added to the file later.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's treatment of the expert evidence or her decision not to address equivocal evidence from other doctors.

The costs award for the bifurcated proceeding was also upheld.

The appellants insured a classic vehicle under a stipulated value policy and later claimed it was stolen.

After the vehicle was recovered, expert evidence at trial revealed it was not the rare, excellently preserved vehicle it was represented to be.

The jury dismissed the claim, finding the appellants gave false particulars to the prejudice of the insurer under s. 233(1)(a)(i) of the Insurance Act.

On appeal, the appellants argued the insurer waived the misrepresentation defence, failed to prove prejudice, and introduced unfair evidence suggesting fraud.

The Court of Appeal dismissed the appeal, finding no evidence of waiver or estoppel, sufficient evidence of prejudice, and that the evidence of false particulars was properly admitted.

The defendants in a motor vehicle accident action sought to bifurcate the trial of liability and damages issues, to be heard by different juries.

The plaintiffs, who had also served a jury notice, opposed the motion.

The Master dismissed the motion for lack of jurisdiction.

The Superior Court set aside the Master's order, but the Divisional Court restored it.

On appeal, the Court of Appeal affirmed that the Superior Court lacks jurisdiction to bifurcate a trial where a valid jury notice has been served, absent the consent of the parties, as it would infringe the statutory right to have issues of fact tried by a single jury.

The appellant insurer appealed a motion judge's decision regarding the quantum of housekeeping expenses under section 22 of the Statutory Accident Benefits Schedule.

The motion judge had found that the defence was weak and did not raise a serious issue for trial, relying on a previous finding that housekeeping and home maintenance would exceed the statutory maximum of $100 per week.

The Court of Appeal found no error in the motion judge's reasons and dismissed the appeal with costs.

The appellant tenant sued the respondent landlord for damages after slipping on ice on the walkway leading to her apartment.

The landlord defended the action by relying on a provision in the tenancy agreement that made tenants responsible for snow removal.

The motion judge found the provision was not inconsistent with the Tenant Protection Act.

On appeal, the Court of Appeal reversed the decision, holding that while a landlord may contract with a tenant for snow removal services, such an agreement must constitute a severable contractual obligation.

The provision in this case was inextricable from the tenancy agreement and too vague to create an enforceable contract for services, rendering it void under the Act.

The appellants appealed a motion judge's determination on a question of law regarding the applicability of a Florida statutory threshold defence.

The Court of Appeal found that the motion judge erred by failing to consider section 6 of the OPCF 44R-Family Protection Coverage Form, which limits the Ontario insurer's exposure based on the threshold applicable to the underinsured tortfeasor under section 737 of the Florida statute.

The appeal was allowed, and the court held that the Florida threshold applies.

The respondent was injured in a motor vehicle accident and suffered chronic pain, fibromyalgia, depression, and anxiety.

At trial, the jury awarded damages including amounts for past housekeeping inefficiency, past lost housekeeping capacity, and future lost housekeeping capacity.

The appellants appealed, arguing the trial judge erred in his instructions to the jury regarding the categorization and calculation of housekeeping damages.

The Court of Appeal found that while the trial judge erred in encouraging the jury to separate inefficiency damages from the global non-pecuniary award and in his instructions on calculating past lost housekeeping, the global award was not unreasonable.

The appeal was dismissed.

The deceased and his first wife entered into a separation agreement requiring him to designate her as the beneficiary of a life insurance policy until March 1995.

He subsequently married the appellant and later developed Alzheimer's disease.

The deceased never revoked the first wife's beneficiary designation, and the appellant continued paying the premiums under a power of attorney.

After the deceased's death, the appellant claimed the policy proceeds, arguing unjust enrichment and seeking a constructive trust.

The Court of Appeal dismissed the appeal, finding that the beneficiary designation constituted a juristic reason for the enrichment and that the general release in the separation agreement did not override the Insurance Act requirements for changing a beneficiary.

The defendants in a personal injury action arising from a motor vehicle accident brought a motion to bifurcate the jury trial to determine liability before damages.

The motion judge dismissed the motion, finding no jurisdiction to bifurcate a trial with a valid jury notice.

On appeal, the order was set aside, with the appeal judge finding jurisdiction and ordering bifurcation.

The plaintiffs appealed to the Divisional Court.

The Divisional Court allowed the appeal, holding that a court lacks jurisdiction to bifurcate a trial with an extant jury notice if any party objects.

The court further held that even if jurisdiction existed, the test for bifurcation requires demonstrating an exceptional case, not merely a clear benefit in time and expense.