Allyson Fox

Following a jury verdict awarding damages for a motor vehicle collision, the trial judge determined collateral benefits, the statutory threshold for non-pecuniary loss, and the applicable deductible.

The plaintiff's award for future housekeeping was reduced to nil due to collateral benefits.

The defendant's threshold motion, brought after the jury verdict, was considered by the trial judge as required by statute.

The court found that while the plaintiff's impairments were permanent and important, they did not meet the "serious impairment" criterion under the Insurance Act and O. Reg. 461/96, particularly regarding substantial interference with employment or daily living activities, and lack of evidence on accommodation efforts.

Consequently, the plaintiff's claim for non-pecuniary loss was barred, and the $30,000 general damages award was reduced to nil.

The court also clarified that the indexed deductible amount in place at the time of the threshold determination applies, not the amount at the time of the accident.

The appellant was fraudulently induced by a group of individuals to obtain a bank draft for $90,190 payable to the Bank of Montreal (BMO).

The fraudsters gave the draft to a third party unknown to the appellant, who then instructed BMO to deposit the funds into her line of credit.

BMO accepted the draft and subsequently allowed the third party to withdraw the funds.

The appellant sued BMO for conversion.

The motion judge dismissed the claim on summary judgment.

On appeal, the Court of Appeal reversed the decision, holding that BMO committed the tort of conversion by dealing with the bank draft under the direction of an unauthorized person and making the proceeds available to someone not rightfully entitled to possession.

The plaintiffs sued the Bank of Montreal for $211,999.62 arising from unauthorized debits from a corporate account and moved for summary judgment.

The Bank of Montreal also moved for summary judgment, seeking dismissal of the claims based on a limitations period and an account verification agreement.

The court found genuine issues requiring a trial regarding the start date of the limitation period due to conflicting evidence on when the plaintiff discovered the loss and when BMO provided account documentation.

The court also identified an ambiguity in the account verification clause regarding written versus oral notice, suggesting the `contra proferentem` rule might apply.

Both motions for summary judgment were dismissed, and no costs were awarded due to divided success.

Following the release of the court's written endorsement on the appeal, the appellant settled the issue of costs with several respondents.

The court ordered the appellant to pay the remaining respondent, Zanzibar Tavern Inc., costs of the appeal fixed at $3,500 inclusive of disbursements and HST.

The appellant appealed a summary judgment dismissing his action against the respondents for damages related to his HIV infection, which he alleged was linked to a sponsorship undertaking given to the federal government.

The Court of Appeal dismissed the appeal, finding the action was statute-barred under the Limitations Act, 2002.

The Court declined to entertain new arguments regarding exceptions to the limitation period raised for the first time on appeal.

Furthermore, the Court found no evidence establishing a causal link between the government's actions and the appellant's infection.

The plaintiff sought summary judgment against a bank for conversion after sale proceeds from her home were used to obtain a bank draft payable to the bank and deposit it into a third party's line of credit.

The bank cross-moved for summary judgment dismissing the action.

Applying the banking conversion principles and the summary judgment framework, the court held the bank was entitled to accept a draft payable to itself and apply it to a debt owed by its customer.

Any fraud in inducing the plaintiff to obtain the draft may have supported claims against other participants, but not against the bank.

The plaintiff's motion was dismissed, the bank's motion was granted, and the action against the bank was dismissed.

Two defendants moved for leave to amend their statements of defence to add limitations defences in an action alleging uncredited credit card transaction proceeds.

The plaintiff argued that leave under Rule 48.04 was required after the matter was set down for trial and that the limitations defences were themselves barred by the Limitations Act, 2002.

The court held that, even if Rule 48.04 leave were necessary, it should be granted, and rejected the argument that a limitations defence constitutes a statutory claim subject to the same limitation period.

Applying Rule 26.01, the court found no non-compensable prejudice and granted leave to amend.

Costs were awarded to the successful moving defendants on a reduced partial indemnity basis.

The plaintiff alleged that his former spouse knowingly infected him with HIV and sued multiple defendants, including the federal Crown, an immigration medical examiner, and the employer of the spouse.

The defendants brought motions for summary judgment dismissing the claims.

The court held that the action was statute‑barred under the Limitations Act, 2002 because the plaintiff had sufficient knowledge of material facts when he was diagnosed as HIV‑positive in March 2004 but commenced the action in 2008.

The court further held that neither the federal government nor the immigration physician owed a private law duty of care to the plaintiff under the Anns/Cooper framework, and there was no evidentiary basis for negligence or vicarious liability against the nightclub employer.

The claims against all moving defendants were dismissed.

The plaintiff bank brought a motion seeking leave to amend three consolidated statements of claim to add allegations of fraud and fraudulent misrepresentation against a lawyer and a property appraiser involved in mortgage transactions, and to assert that the claims survived bankruptcy under s. 178 of the Bankruptcy and Insolvency Act.

The defendants opposed the motion, arguing the amendments introduced a new cause of action after the expiry of the applicable limitation period.

The court held that the original pleadings alleged negligence only and did not contain the material facts necessary to support allegations of fraudulent misrepresentation, including knowledge of falsity or intention to deceive.

Because the proposed amendments introduced a fundamentally different cause of action, the limitation period created a presumption of non‑compensable prejudice.

The motion to amend was therefore dismissed.

The plaintiff and defendant, who are siblings, were involved in estate litigation.

The plaintiff alleged that he, the defendant, and another sister entered into an oral agreement to each contribute $10,000 towards a legal retainer, and in return, share equally in any settlement proceeds.

The defendant denied the agreement, arguing she never verbally promised to share the proceeds.

The court found that by paying her $10,000 share of the retainer, the defendant objectively assented to the terms of the oral agreement.

The court also held that the oral agreement was not collateral to the written Minutes of Settlement, and even if it was, it did not conflict with them.

The plaintiff was awarded his one-third share of the settlement proceeds.

The plaintiff, Bank of Montreal, brought a motion under Rule 37.14 to set aside a registrar's dismissal order.

The action, which involved allegations of a complex mortgage fraud, had been dismissed for delay after the plaintiff missed a court-ordered deadline to set the action down for trial.

Applying the Reid factors contextually, the Master found that the plaintiff had adequately explained the delay, demonstrated inadvertence in missing the deadline, moved promptly to set aside the order, and rebutted the presumption of prejudice.

The motion was granted and the dismissal order was set aside without costs.

The appellant's appeal was dismissed, and the parties made written submissions on costs.

The successful respondents sought costs of $5,050.00, relying on a written offer to settle for $500.00 which they bettered.

The appellant argued for partial indemnity costs and sought its own costs for a motion to extend time.

The court rejected the appellant's arguments, noting the appellant's own costs outline was over $13,500.00.

The court awarded the respondents their requested costs fixed at $5,050.00.

The appellant bank appealed a Small Claims Court decision dismissing its claim against the respondent for an outstanding credit card balance of $7,017.85.

The trial judge found the bank failed to establish its case, as the respondent denied knowledge of the card and the bank's witness lacked personal knowledge of the transactions.

The bank argued the trial judge erred in fact and in law by refusing to let it question the respondent again on the second day of trial.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the factual findings based on credibility, and no unfairness in refusing further questioning since the bank provided no reasons for the request at trial.