Alan L. Rachlin

The plaintiffs sought leave to appeal a decision setting aside a Master's order that refused to bifurcate a jury trial.

The Master had relied on appellate authority stating there is no jurisdiction to bifurcate a jury trial, but the motion judge found the Master erred and ordered severance.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's decision given existing binding appellate authority prohibiting the bifurcation of jury trials, and questioning whether the correct test for severance was applied.

In a medical malpractice action, the parties agreed to a bifurcated trial to determine the threshold factual issue of whether the defendant doctor advised the plaintiff to take a specific medication.

The trial judge decided the issue in favour of the plaintiffs, finding the doctor did not recommend the medication.

The defendants appealed to the Court of Appeal.

The plaintiffs moved to quash the appeal, arguing the order was interlocutory.

The Court of Appeal dismissed the motion to quash, holding that the order was final because it disposed of a defence and deprived the defendants of a substantive right that could be determinative of the entire action.

The plaintiff was injured in a motor vehicle accident and retained a paralegal to negotiate a settlement with the tortfeasors' insurer.

The plaintiff later sued the tortfeasors and the paralegal, alleging the paralegal was negligent and the settlement was invalid.

The paralegal cross-claimed against the tortfeasors, arguing their insurer owed a duty of care to the plaintiff not to negotiate with an unauthorized paralegal.

The Divisional Court allowed the tortfeasors' appeal and struck the cross-claim, holding that a liability insurer owes no duty of care to a plaintiff making a claim against its insured, as this would create an impossible conflict of interest.

The appellant appealed the dismissal of his personal injury action following a jury trial.

The jury found the appellant sustained no injuries in a motor vehicle accident, despite the trial judge ruling that the appellant met the statutory threshold.

The appellant argued that defence counsel's closing address, which improperly focused on the appellant's immigrant status and speculated on how he would use a damages award, was inflammatory and prejudiced the jury.

The Divisional Court allowed the appeal and ordered a new trial, finding that the comments were irrelevant, offensive, and likely swayed the jury based on improper considerations, and that the trial judge's correcting instruction was inadequate.

The appellants appealed an order permitting the respondents to amend their statement of claim to increase the prayer for relief, but denying the appellants the right to deliver a jury notice.

The Court of Appeal quashed the appeal, holding that the discretionary decision concerning terms imposed on the amendment of pleadings constitutes an interlocutory order, over which the court has no jurisdiction.

The moving parties (the Balsdons and their insurer) brought a motion for leave to appeal a decision dismissing their motion to strike a crossclaim.

The crossclaim alleged that the insureds were vicariously liable for the actions of their insurer in negotiating a settlement with the plaintiff.

The court granted leave to appeal under Rule 62.02(4)(b), finding that the issues of whether an insured is vicariously liable for its insurer's actions and whether an insurer owes an independent common law duty to third parties are of significant importance to the insurance industry.

The insured was injured in a motor vehicle accident and subsequently developed a crack cocaine addiction.

He applied for attendant care benefits to supervise him and prevent drug abuse, which the insurer denied on the basis that he was not catastrophically impaired.

An arbitrator later found the insured was catastrophically impaired and ordered the insurer to pay past attendant care benefits, even though the insured had not actually received or paid for the care during that period.

The Director's Delegate upheld this decision.

On judicial review, the Divisional Court dismissed the insurer's application, holding that it was not patently unreasonable to interpret 'incurred' as including reasonable and necessary expenses that would have been provided but for the insurer's improper denial of benefits.

The appellant appealed the trial judge's decision that he had not established a permanent and serious impairment of an important physical, mental or psychological function resulting from a motor vehicle accident under s. 267.5(5) of the Insurance Act.

The appellant argued the trial judge erred in her consideration of future events.

The Court of Appeal dismissed the appeal, finding that the trial judge did consider future events but properly concluded the evidence was mere conjecture, and her conclusion that the statutory threshold was not met was supported by the evidence.

The appellants appealed a trial judgment, arguing the trial judge erred in excluding the viva voce evidence of their medical expert because no report was filed.

The Court of Appeal held that even if this was an error, it would not have affected the trial judge's decision on the threshold question, as she had the expert's detailed notes and found the appellant lacked credibility.

However, the Court of Appeal allowed the appeal regarding pre-offer costs.

The trial judge had awarded no costs for proceedings prior to the defendants' settlement offer without providing reasons.

Applying Rule 76.13, the Court found it was reasonable for the plaintiffs to commence the action under the ordinary procedure and awarded them partial indemnity costs up to the date of the offer.

The appellant appealed a trial judgment finding that the respondent suffered a 'serious impairment' under s. 267.5(5)(b) of the Insurance Act following a motor vehicle accident.

The appellant argued that the trial judge misapplied the threshold test by relying on a previous appellate endorsement that allegedly lowered the standard to only require an effect on the enjoyment of life.

The Court of Appeal clarified that its previous endorsement did not modify the established test, which requires a substantial interference with the ability to perform usual daily activities or regular employment.

Finding no error in the trial judge's application of the law or appreciation of the evidence, the appeal was dismissed.

The plaintiff in a personal injury action claimed her injuries interfered with her ability to care for her child.

During the jury trial, defence counsel asked about pre-accident discussions regarding the Children's Aid Society (CAS).

The trial judge discharged the jury, expressing concern that a juror employed by the CAS might make independent inquiries.

The defendants appealed.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge erred in principle by discharging the jury based on speculation rather than exploring less drastic remedies to cure any potential prejudice.

The appellants appealed a jury verdict finding no liability on the part of the respondents for personal injuries sustained when the appellant fell down stairs at a house under construction.

The appellants argued that the trial judge interfered excessively during the appellant's testimony, compromising trial fairness.

The Court of Appeal agreed, finding that the trial judge's extensive and leading questions on core issues of liability and credibility crossed the line into participation in the litigation.

The appeal was allowed, the trial judgment set aside, and a new trial ordered.

The plaintiffs appealed a jury's assessment of damages arising from a motor vehicle accident, arguing the award was perverse and that the trial judge's threshold determination under the Insurance Act bound the jury on causation.

The Court of Appeal dismissed the appeal, finding the jury was entitled to reject the plaintiff's position on causation based on the evidence.

The Court also held that a trial judge's threshold determination does not constitute a binding finding of fact on causation for the jury.

The appellants appealed an order setting aside their third party claims against the plaintiff's employer and disability insurer.

The appellants argued that the third parties should be bound by the determination of issues in the main action to prevent inconsistent findings under Rule 29.01(c).

The Court of Appeal dismissed the appeal, finding that the appellants had no cause of action against the employer and that the possibility of inconsistent findings in subsequent litigation against the insurer was too speculative and contingent.

The plaintiff applied for leave to appeal a costs award of $3,000 made against him by Pitt J. The application was filed six months after the order, well beyond the seven-day limit prescribed by Rule 62.02.

The Divisional Court refused to extend the time due to the inordinate and unexplained delay.

The court also noted there was no reason to doubt the correctness of the original costs award and dismissed the application for leave to appeal, awarding $2,000 in costs to the respondent.

The plaintiff brought a motion for leave to appeal a costs order made by the trial scheduling judge, who had ordered the plaintiff to pay costs thrown away as a term of granting a further adjournment of the trial.

The plaintiff also sought an adjournment of this motion to obtain transcripts.

The Divisional Court denied the adjournment of the motion and dismissed the motion for leave to appeal, finding no error in the scheduling judge's exercise of discretion to award costs as a term of adjournment, particularly given the history of the proceeding and a prior unpaid costs order.

The respondent, an uninsured driver, was served alcohol at the appellants' bar and subsequently injured himself in a single-car motor vehicle accident.

He brought an action against the bar for taverner's negligence.

The appellants moved to dismiss the action, arguing it was barred by s. 267.6(1) of the Insurance Act, which precludes uninsured drivers from recovering damages arising from the use or operation of an automobile.

The motions judge dismissed the motion.

The Court of Appeal dismissed the appeal, holding that s. 267.6(1) applies only to damages for vehicular negligence and does not preclude a cause of action in taverner's negligence, as the motor vehicle was merely incidental to the essence of the claim.

The plaintiffs brought actions for damages arising from a motor vehicle accident against the driver, owner, lessee, and two taverns (unprotected defendants).

One of the taverns brought a motion to determine whether, as an unprotected defendant, it was liable for the whole amount of the statutory deductibles applied to protected defendants under the Insurance Act.

The trial judge held that unprotected defendants were responsible for 100 percent of the deductibles.

The Court of Appeal allowed the appeal, holding that the Insurance Act restricts the application of the Negligence Act, and unprotected defendants are only liable for the amount by which their contribution under the Negligence Act exceeds their joint and several liability with protected defendants.

The plaintiff commenced an action against his insurer for statutory accident benefits.

The plaintiff's counsel sent a settlement offer to the insurer's adjuster, which the insurer's counsel accepted.

When the plaintiff refused to proceed with the settlement because costs were to be assessed rather than fixed, the insurer moved for judgment under Rule 49.

The motions judge dismissed the motion, finding the offer was improperly served and the insurer failed to provide a notice under section 9.1 of the Automobile Insurance Regulation.

The Court of Appeal allowed the insurer's appeal, holding that the technical defect in service did not invalidate the Rule 49 offer, and that section 9.1 does not apply to settlements reached after litigation has commenced.

The plaintiff was injured in a motor vehicle accident and commenced an action more than two years later.

The defendants brought a motion for summary judgment, arguing the action was statute-barred.

The motions judge dismissed the defendants' motion and instead granted summary judgment in favour of the plaintiff on the limitation issue, finding it was not reasonably discoverable within the first 35 days that the plaintiff had suffered a serious impairment.

The Court of Appeal dismissed the defendants' appeal, holding that under Rules 20.04(2) and (4), a motions judge has jurisdiction to grant summary judgment against a moving party, and that the medical evidence supported the conclusion that the limitation defence failed.