Alan Rachlin

The plaintiff sought leave to amend her statement of claim to add a claim for punitive and aggravated damages against the defendants for intentional infliction of mental distress.

The proposed claim was based on the surveillance tactics of investigators retained by defence counsel and counsel's failure to respond to inquiries.

The court dismissed the motion, finding that the proposed amendments were not tenable at law because a party cannot be vicariously liable in punitive damages for the actions of their lawyer, and opposing counsel owes no duty of care to the plaintiff.

The court also found that granting the amendment would cause non-compensable prejudice by likely requiring all counsel to be removed from the record to testify.

The plaintiff brought a motion to strike the defendants' jury notice after the trial was delayed due to the suspension of civil jury trials in Toronto during the COVID-19 pandemic.

The plaintiff argued that the delay and uncertainty of a jury trial caused financial prejudice.

The court dismissed the motion, finding that the anticipated eight-month delay to the next scheduled jury sittings did not justify depriving the defendants of their substantive right to a jury trial, especially since they had based their litigation strategy on that right.

The trial was adjourned to the June 2021 civil jury sittings.

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.

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 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.

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.

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.