Andrew Eckart

The plaintiffs brought a motion to discontinue a proposed employment class action against the defendant.

The representative plaintiffs were found to be unsuitable or in conflict with the class, and no replacement plaintiffs could be found.

The court granted the discontinuance without costs and without prejudice, finding no prejudice to putative class members as the limitation period had been tolled and notice would be provided to those who had come forward.

This motion concerned an application by The Class Action Clinic, University of Windsor, Faculty of Law, to intervene as a friend of the court in an appeal brought by Donald Parker.

Parker's appeal challenged an unsuccessful motion for an extension of time to opt out of a class action against Her Majesty the Queen in the Right of Ontario, concerning medical care for inmates.

The Clinic sought to provide a framework for determining extensions of time to opt out of class actions.

The court granted the Clinic's motion to intervene, finding that the Clinic could make a useful contribution to the appeal's resolution without prejudicing the parties, given the unsettled legal considerations regarding opt-out extensions in class actions.

Following a jury trial for a motor vehicle accident, the plaintiff recovered only $2,000 after the application of the statutory deductible and a successful defence threshold motion.

The plaintiff sought partial indemnity costs of over $230,000, while the defendants argued they were the successful party and sought $25,000 in costs.

The court found that the plaintiff achieved some success and was entitled to costs, noting the defendants' failure to make any settlement offers and their conduct which unnecessarily lengthened the trial.

Applying the principle of proportionality, the court fixed the plaintiff's costs at $40,000 inclusive of disbursements and HST.

The defendants sought leave to introduce surveillance evidence for substantive purposes in a jury trial arising from a motor vehicle accident.

The plaintiff opposed, arguing late disclosure and prejudice.

The court found the defendants breached disclosure obligations under Rules 30.09 and 33.06, particularly regarding waiver of privilege when the evidence was provided to a medical expert.

Applying Rule 53.08, the court determined that significant prejudice to the plaintiff, including impacts on settlement considerations and trial strategy, could not be cured by an adjournment.

Leave to use the surveillance evidence for substantive purposes was denied, though its use for impeachment was not challenged.

The defendants brought a motion to exclude the plaintiff's second orthopedic expert, Dr. Daniel Ogilvie-Harris, arguing that his testimony duplicated that of the plaintiff's treating physician, Dr. Robert Luba, and citing prior judicial comments regarding Dr. Ogilvie-Harris's alleged bias.

The plaintiff sought to admit both experts, asserting distinct contributions and the need for a Rule 53 expert to challenge the defence's expert.

The court dismissed the defendants' motion, allowing both Dr. Luba to testify as a participant expert and Dr. Ogilvie-Harris as a Rule 53 expert.

The court found that Dr. Ogilvie-Harris's opinion offered significant differences, including addressing the Insurance Act threshold and challenging the defence expert, and ruled that allegations of bias should be addressed in a voir dire.

In a motor vehicle accident action, the plaintiff objected to the defence's expert medical evidence from Dr. Finkelstein, arguing the expert relied on inadmissible surveillance video.

A voir dire was held to determine admissibility.

The court ruled that Dr. Finkelstein could testify, but with conditions: no comment on surveillance in examination-in-chief, and the plaintiff could cross-examine on activities disclosed in evidence or directly on the surveillance (with defence re-examination rights).

The court balanced the probative value of the expert evidence against the potential prejudice from the inadmissible surveillance, noting the expert's opinions were largely independent of the video and foundational facts were already in evidence.

The plaintiffs sought leave under Rule 48.04(1) of the Rules of Civil Procedure to bring a summary judgment motion, despite the action having already been set down for trial.

The proposed motion would only address claims against two of the defendants for breaches of share purchase and consulting agreements.

The court dismissed the motion for leave, finding that the proposed summary judgment motion would not eliminate any parties, would not shorten the trial given the interconnected factual matrix, and would risk inconsistent verdicts and prejudice regarding the defendants' counterclaim.

In this costs endorsement following a personal injury jury trial, the plaintiff sought enhanced costs based on a Rule 49 offer of $300,000 inclusive of interest plus costs.

The defendants argued that the future income loss award should be excluded from the judgment for offer-comparison purposes because of the trust and assignment regime under s. 267.8 of the Insurance Act.

The court rejected that submission, held the judgment remained more favourable than the offer, and awarded partial indemnity costs to the offer date and substantial indemnity costs thereafter.

Applying Rule 57.01 and proportionality principles, the court fixed fees at $240,000 plus applicable GST/HST and allowed disbursements of $124,013.46.

During a jury trial arising from a motor vehicle accident, the defendants brought a threshold motion under s. 267.5(15) of the Insurance Act seeking a determination that the plaintiff had not sustained a permanent serious impairment of an important physical, mental or psychological function.

The court reviewed the statutory test and the regulatory criteria under the Ontario Regulations, including the requirements of substantial interference, importance of function, and permanence.

Based on extensive medical evidence diagnosing chronic pain syndrome, orthopedic injuries, and psychiatric conditions including major depressive disorder and somatic symptom disorder, the court found the impairments substantially interfered with employment and daily living.

The court accepted the evidence of multiple treating and expert physicians and rejected the defence medical expert’s opinion as unreliable.

The court concluded the plaintiff met the statutory threshold and was not barred from recovering damages for non‑pecuniary losses.

In a certified class proceeding involving claims for unpaid wages and vacation pay, the representative plaintiffs sought partial default judgment against a defendant who had been noted in default.

The claims arose under the Employment Standards Act, 2000 and included statutory claims and damages for negligence, inducing breach of contract, and oppression relating to unpaid wages, vacation pay, termination pay, and severance pay.

The court held that, by virtue of the default, the defendant was deemed to admit the allegations in the amended statement of claim.

Based on the deemed admissions and evidentiary record, the court concluded the plaintiffs were entitled to judgment against the defaulting defendant.

The precise terms of the judgment and certification order were to be settled at a case conference.

Following a successful certification motion in a proposed class proceeding brought by former employees against corporate and individual defendants, the plaintiffs sought partial indemnity costs of approximately $64,000.

The defendants argued that no costs should be awarded due to their partial success on a Rule 21 motion and their role in narrowing the plaintiffs’ claims.

The court held that while the plaintiffs achieved overall success on certification, their success was limited because several causes of action were dismissed and the scope of the claims was reduced.

Exercising its discretion under the Class Proceedings Act, 1992, the court reduced the requested partial indemnity costs and awarded a global amount.

Costs of $50,000 inclusive were ordered payable forthwith to reflect the plaintiffs’ overall success.

The insured was injured in a 2007 motor vehicle accident and commenced both an accident benefits arbitration and a tort action.

He later sought to withdraw his arbitration claim for medical expenses to include it in a parallel court proceeding for income replacement benefits and punitive damages.

The Arbitrator allowed the withdrawal without expenses.

The insurer appealed, arguing the insured should not be permitted to change forums at a late stage.

The Director's Delegate dismissed the appeal, finding the Arbitrator acted within his discretion under the Dispute Resolution Practice Code and had no power to force the insured to continue the arbitration or abandon his punitive damages claim in court.

The plaintiffs brought a motion to certify a class action on behalf of 521 dismissed employees of an insolvent call centre.

The defendants brought a cross-motion to strike several claims, arguing that the court lacked jurisdiction due to pending Employment Standards Act proceedings and that the pleadings failed to disclose reasonable causes of action.

The court struck the breach of fiduciary duty claims but allowed the negligence, conspiracy, inducing breach of contract, and oppression remedy claims to proceed.

The court held that while s. 97 of the Employment Standards Act precluded some employees from advancing wrongful dismissal claims, it did not bar them from participating in the class action for the other tort and statutory claims.

The action was certified as a class proceeding.

The insurer moved under Rule 21.01(3) of the Rules of Civil Procedure to stay a statutory accident benefits action as an abuse of process.

The insurer argued the insured improperly switched forums from a Financial Services Commission of Ontario arbitration to the court after initiating arbitration proceedings.

The court held that the doctrine of abuse of process did not apply because there was no limitation period issue preventing the insured from changing forums and no risk of duplicative or inconsistent proceedings.

The withdrawal of the arbitration eliminated concerns about parallel proceedings, and trying the accident benefits action together with the tort claim promoted efficiency.

The motion to stay the action was dismissed.

The plaintiffs in a proposed class action for wrongful dismissal brought a motion seeking particulars of the allegations in the defendants' Statement of Defence and Crossclaim.

The plaintiffs argued the particulars were necessary to deliver a reply and to prepare for the upcoming certification motion.

The court dismissed the motion, finding that the plaintiffs did not need the particulars to plead a reply, as they were not proposing a different version of facts.

Furthermore, the court held that particulars should not be used as a substitute for discovery, and the plaintiffs would have ample opportunity to understand the defendants' case through the normal certification motion procedures.

In a certified class action arising from a fire and explosion in an underground electrical vault at a residential complex, the defendant utility appealed a Master’s order compelling answers to refusals given during examinations for discovery.

The appeal concerned whether the defendant was required to disclose details of internal and expert investigations and to answer questions regarding its theory of causation.

The court held that the defendant failed to establish a factual basis for litigation privilege over investigative information and expert findings.

The court further held that under Rule 31.06(3) of the Rules of Civil Procedure, a party must disclose expert findings, opinions, and conclusions at discovery unless it undertakes not to call the expert at trial.

The Master’s order requiring answers to discovery questions and disclosure of investigative information was upheld.

The plaintiffs brought a motion to compel the defendant, Toronto Hydro, to answer questions refused at discovery and to produce documents regarding its investigations into a transformer explosion.

Toronto Hydro claimed litigation privilege over the investigations, arguing they were conducted in anticipation of litigation.

The Master granted the motion, finding that Toronto Hydro failed to establish that the information came from experts or that the dominant purpose of the investigations was litigation.

Furthermore, Toronto Hydro failed to provide the required undertaking under Rule 31.06(3) not to call the experts at trial, thereby mandating disclosure of their findings and opinions.