Alexander Walter Demeo

The decision addresses a motion by Pamela Adderley for standing in an application brought by Bridgepoint Financial Services Limited Partnership I against Rudolf Steinberg.

The application concerns entitlement to settlement funds arising from accident benefits and the priority of claims to those funds.

The court considers whether Adderley should be joined as a party under Rule 5.03 of the Rules of Civil Procedure or permitted to participate under section 67 of the Personal Property Security Act.

The court concludes that while Adderley is not a necessary party for joinder, her interests are engaged under the PPSA and she is permitted to participate in the application, subject to limits on her evidence and submissions.

The defendant, Seargeant Picard Incorporated (SP), moved for summary judgment to dismiss the plaintiffs', Scott and Rachel Saxberg (the Saxbergs), action on the grounds that the claim was barred by the Limitations Act, having not been commenced within two years of discovery.

SP argued the claim was discoverable in October 2012 when they refused to perform certain recommended "repairs" at their cost.

The Saxbergs contended the issues were "upgrades" and the true extent of damage was not discovered until June 2015, when extensive water damage was uncovered during subsequent work.

The court dismissed SP's motion, finding that the Saxbergs' claim was discovered in June 2015, and therefore, the action commenced on July 25, 2016, was within the two-year limitation period.

The appellant appealed an order finding him in contempt and dismissing his action for persistently refusing to attend court-ordered medical examinations in Toronto.

The appellant argued the motion judge erred by not treating contempt as a last resort and by failing to accept his legitimate excuse for non-compliance.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decision to find the appellant in contempt and to dismiss the action, emphasizing the appellant's deliberate non-compliance and the futility of further opportunities to comply.

Following the dismissal of the plaintiffs' action, the defendant sought costs.

The plaintiff argued that an appeal had been filed, triggering an automatic stay under Rule 63.01 of the Rules of Civil Procedure, which should preclude the court from making a costs award.

The court held that while Rule 63.01 stays enforcement, it does not preclude the motion judge from fixing costs.

The court awarded the defendant costs fixed at $70,291.52, noting the plaintiff's multiple changes of counsel and inefficient prosecution of the matter which caused significant expense to the defence.

The defendant brought a motion to find the plaintiff in contempt for failing to comply with a court order requiring him to attend defence medical examinations in the Greater Toronto Area.

The plaintiff brought a cross-motion seeking accommodation under the Human Rights Code to have the medicals conducted in Thunder Bay.

The court found the plaintiff in contempt, noting his clear and intentional refusal to attend the scheduled appointments.

The cross-motion was dismissed as an abuse of process, as the court had previously determined the plaintiff was medically able to travel.

As a remedy for the contempt, the court dismissed the plaintiff's action in its entirety.

Following the dismissal of the plaintiff's motion, the parties could not agree on the quantum of costs.

The plaintiff argued for a nominal award of $1,500 to $2,000, while the defendant sought $7,500 plus HST.

The court rejected the plaintiff's submission for a nominal award, noting the plaintiff had refused a reasonable request to amend an existing order regarding defence medical examinations.

The court found the defendant's request proportionate and consistent with a previous order, fixing costs at $7,500 plus HST payable forthwith by the plaintiff.

The plaintiff moved to set aside an order requiring in-person defence medical examinations, citing COVID-19 concerns and relying on Rule 59.06.

The defendant brought a cross-motion to vary the order due to changes in expert availability and location.

The court found the plaintiff's evidence, largely hearsay from counsel's associate, insufficient to justify setting aside the order and drew an adverse inference from the lack of direct evidence from the plaintiff.

The court dismissed the plaintiff's motion but granted the defendant's request to amend the order to reflect the new experts and examination locations, finding the plaintiff's refusal to consent unreasonable.

The defendant brought a motion to compel the plaintiff to attend defence medical examinations in Toronto.

The plaintiff, who resides near Thunder Bay, objected on the basis that his injuries from a motor vehicle accident rendered him medically unable to travel.

After reviewing expert evidence, including a jointly retained neurosurgeon's report and evidence of the plaintiff's extensive recent travel, the court found the plaintiff was medically able to travel.

The plaintiff was ordered to attend the examinations in Toronto, without prejudice to his right to bring a subsequent motion regarding COVID-19 concerns.

Costs were awarded to the defendant.

The defendant moved for a further and better affidavit of documents in a construction defect case.

The plaintiffs had produced documents, including expert reports, but failed to serve a sworn, updated affidavit of documents after changing counsel.

The court ordered the plaintiffs to serve a sworn updated affidavit of documents pursuant to Rule 30.07, including all produced documents and those required under Schedules B and C.

The defendant sought costs on a substantial indemnity basis after successfully moving to strike the plaintiffs' 'Notice of Withdrawal of Jury Notice' and after the plaintiffs abandoned their cross-motion to strike the jury notice.

The court found the plaintiffs' conduct in creating a non-existent form and ignoring the Rules of Civil Procedure warranted the court's disapproval.

The court awarded the defendant substantial indemnity costs fixed at $6,000.

The appellant was injured as a passenger in a vehicle owned by his spouse and driven by an uninsured driver without the spouse's consent.

The vehicle was insured by Jevco.

The appellant claimed coverage under uninsured automobile coverage, but Jevco denied the claim on the basis that the vehicle was not an "uninsured automobile" because it was owned by the insured's spouse.

The motion judge agreed with Jevco and dismissed the claim.

The Court of Appeal upheld the dismissal, finding that the statutory and contractual definitions of "uninsured automobile" unambiguously exclude vehicles owned by the insured or their spouse, regardless of whether the vehicle was taken without consent.

The defendant Jevco Insurance Company brought a motion under Rule 21.01 for a determination of a question of law: whether an automobile owned by the plaintiff's spouse, driven without consent by an uninsured driver, constitutes an "uninsured automobile" under the Insurance Act and the relevant insurance policy.

The court found that the statutory and contractual language explicitly excludes such a vehicle from the definition of "uninsured automobile" when it is owned by the insured or their spouse, even if the result may seem unfair.

Consequently, the plaintiff was not entitled to uninsured automobile coverage from Jevco.

The Plaintiffs' motion for partial summary judgment, seeking dismissal of the Defendants' counterclaim and set-off defence, was dismissed.

This decision addresses the Defendants' claim for costs.

The court, applying Rule 57.01, found the Defendants' claimed costs of over $67,000 to be excessive, noting the motion's complexity was not as high as claimed and much of the work could be used at trial.

The court awarded the Defendants partial indemnity costs of $35,000.00 plus HST and disbursements of $600.00 plus HST, representing a 35% reduction from full indemnity.

The plaintiffs brought a motion for summary judgment seeking to dismiss the defendants' counterclaim and set-off claims, arguing that the two-year limitation period had expired, the issues were res judicata, and the claims constituted an abuse of process.

The dispute arose from a long-standing business relationship involving bank loan guarantees and a life insurance policy.

The court applied the Hryniak framework and found that there were genuine issues requiring a trial, including evidentiary gaps regarding the limitation period, potential waiver or estoppel, and the applicability of equitable set-off.

The motion for summary judgment was dismissed, and the matter was ordered to proceed to trial.

During a negligence trial concerning alleged diesel fuel contamination of lands belonging to a First Nation, the defendants brought a mid‑trial motion seeking to disqualify the plaintiff’s proposed expert geoscientist.

The defendants argued the expert report failed to comply with Rule 53.03 of the Rules of Civil Procedure because it was not prepared for the litigation and did not clearly set out the issues, opinions, and bases for those opinions.

The court held that the report was only minimally compliant with Rule 53.03 and did not sufficiently identify the substance of the proposed expert testimony, thereby prejudicing the defendants’ ability to prepare for trial.

However, completely barring the witness from testifying would be too harsh.

The court granted leave for the witness to testify as a fact witness, subject to strict limits on use of the report and possible supplementation.

The plaintiffs moved under Rules 53.03 and 53.08 of the Rules of Civil Procedure to abridge the time for service of multiple expert reports and to obtain leave to tender expert opinion evidence shortly before trial.

The defendants opposed the late service, arguing prejudice due to the cumulative effect of numerous expert reports served days before the scheduled six‑week trial.

The court held that the late service undermined the purpose of Rule 53.03, which is to facilitate orderly trial preparation through adequate notice of expert opinion evidence.

While the evidence was relevant and probative to significant damages claims arising from a traumatic brain injury, the defendants required a fair opportunity to respond.

Leave was granted to admit the expert evidence, but the trial was adjourned and the defendants were given time to prepare responding expert reports.

Costs decision following a motion seeking production of further and better affidavits of documents and cross‑examination on the supplementary affidavit of documents in environmental contamination litigation.

The defendants were successful in obtaining an order requiring the plaintiffs to serve a complete sworn supplementary affidavit of documents after the plaintiffs failed to comply with an earlier case management order.

However, the plaintiffs successfully resisted a request for cross‑examination on the affidavit of documents and defeated allegations of contempt seeking substantial indemnity costs.

Applying the discretion under s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court assessed costs based on overall success, proportionality, and reasonableness.

Partial indemnity costs were awarded but reduced to reflect the plaintiffs’ success on certain issues.

The defendants moved for an order requiring the plaintiffs to provide a sworn and certified further and better supplementary affidavit of documents and to produce the proposed deponent for cross‑examination.

The action concerned alleged environmental contamination from a fuel spill on reserve lands.

The court held that although certain environmental consulting documents were in the plaintiffs’ possession, they were subject to a restriction imposed by the consultant and therefore not within the plaintiffs’ control for production without permission.

The plaintiffs were ordered to serve a sworn supplementary affidavit of documents listing such restricted documents in Schedule B if permission for disclosure was not obtained.

The request to compel cross‑examination of the deponent was refused on proportionality grounds, given the remote location of the First Nation and the limited utility of such an examination.

The defendant brought a motion in Small Claims Court seeking to stay the plaintiff’s action or alternatively transfer the proceeding from Thunder Bay to the Toronto Small Claims Court.

The dispute concerned the alleged failure to return an insurance deposit under a contract following the termination of a franchise relationship.

The court considered Rule 6 of the Rules of the Small Claims Court and the governing principle in Rule 1.03 emphasizing the just, most expeditious, and least expensive determination of proceedings.

The judge concluded the dispute primarily involved interpretation of a single written agreement, likely requiring minimal witness evidence.

The defendant failed to establish that the balance of convenience substantially favoured a transfer of venue, particularly given concerns about access to justice and the advanced stage of the proceeding in Thunder Bay.

The appellants, executors of the estate of a deceased nurse, sued her former employer for negligence in administering a group life insurance plan, resulting in the denial of enhanced benefits.

The trial judge found the employer negligent but dismissed the action, concluding the dispute was governed by the collective agreement and thus subject to arbitration.

The Court of Appeal allowed the appeal, holding that the essential character of the dispute did not arise from the collective agreement, which only required the employer to pay premiums and provide an information booklet.

Judgment was granted in favour of the appellants for the value of the enhanced benefits.