Andrew Lee

The defendants brought a motion to compel the plaintiff to attend defence medical examinations and to extend the time for serving expert reports.

The plaintiff opposed, arguing the defendants had no reasonable explanation for their significant delay in complying with the Rules of Civil Procedure and a consent timetable order.

The court applied the conjunctive test under Rule 53.08, which requires both a reasonable explanation for the failure and that granting leave would not cause non-compensable prejudice or undue delay.

The court found that the defendants' explanations, including a long-standing intention to obtain reports, misunderstanding of deadlines, and inadvertence over an eight-year period, did not constitute a reasonable explanation.

As the first part of the test was not met, the motion was dismissed, and the plaintiff was awarded costs.

The plaintiffs brought eight proposed class actions against various long-term care (LTC) home owners and operators in Ontario, alleging systemic negligence and gross negligence in their response to the COVID-19 pandemic.

The court considered whether the claims met the certification criteria under section 5(1) of the Class Proceedings Act, 1992, particularly in light of the statutory immunity provided by the Supporting Ontario's Recovery Act (SORA).

The court certified six of the actions against the main corporate groups, finding that the pleadings disclosed a viable cause of action in gross negligence and that a class action was the preferable procedure.

However, the court dismissed the certification motions against independently owned homes and municipalities due to the lack of a collective enterprise and missing representative plaintiffs.

A case management conference was held for five related actions arising from a 2016 motor vehicle accident.

The court noted partial compliance with a previous timetable and ordered further deadlines for answering undertakings, arranging defence medical examinations, and serving expert reports.

The court also directed that the matters be tried together and admonished counsel for sending representatives without knowledge or authority to the case conference.

The defendant Unifund Assurance Company brought two motions: one for summary judgment under Rule 20 based on a deemed admission, and another under Rule 21 to strike the plaintiff's personal injury claim on grounds of issue estoppel.

The Rule 20 motion argued that the plaintiff's failure to respond to a request to admit, concerning his presence in the vehicle at the time of the accident, constituted a deemed admission.

The Rule 21 motion asserted that the issue of the plaintiff's occupancy had been finally determined against him in a prior FSCO arbitration, thus precluding relitigation.

The court dismissed both motions, finding that the deemed admission was of limited value due to drafting inaccuracies and that, despite the preconditions for issue estoppel being met, applying the doctrine would be unfair given the significant differences in purpose, process, and stakes between the FSCO arbitration and the tort claim.