Andrew Scott Kerr

This endorsement addresses the costs of a successful motion to transfer an action from the East Region (Ottawa) to the Toronto Region.

The Defendant, as the successful moving party, sought costs.

The court reviewed the submissions and bill of costs, considering factors under Rule 57.01(1) and the principle of proportionality under Rule 1:04(1) of the Rules of Civil Procedure.

The court found the time spent by the moving party's counsel, particularly on cross-examinations deemed unnecessary, was not proportional to the straightforward nature of the transfer motion.

The Plaintiff was ordered to pay the Defendant partial indemnity costs in the all-inclusive amount of $1,990.00, significantly less than the $8,107.50 sought.

The defendant brought a motion to transfer the action and all related enforcement proceedings from the East Region (Ottawa) to the Toronto Region.

The plaintiff had previously obtained default summary judgment in Ottawa for credit card debt and was seeking to enforce a writ of seizure and sale against the defendant's home in Toronto.

The court applied the factors under Rule 13.1.02 of the Rules of Civil Procedure holistically.

Finding that the defendant lived in Toronto, the subject property was in Toronto, and both parties had Toronto counsel, the court concluded that Toronto was a significantly better venue for the remaining post-judgment steps.

The motion to transfer was granted.

During a jury trial, the plaintiff brought a motion under Rule 52.10 of the Rules of Civil Procedure to allow the jury to determine if past and future care costs were warranted, despite having called no evidence on these issues.

The plaintiff proposed that if the jury found such costs warranted, the quantum could be determined later by a judge.

The court dismissed the motion, finding that the plaintiff failed to exercise reasonable diligence in obtaining the necessary expert evidence before trial.

The court also held that bifurcating the issue would improperly remove the determination of the extent and quantum of future care costs from the jury.

The plaintiff brought a motion for leave to file an income loss report served less than 90 days before trial, contrary to Rule 53.03 of the Rules of Civil Procedure.

The defendant opposed the motion, arguing that the plaintiff had ample time to prepare the report over the 8-year history of the action.

The court held that 'undue delay' under Rule 53.08 refers to delay in the conduct of the trial, not the time taken to bring the matter to trial.

Since the defendant did not request an adjournment and there was no prejudice, the court granted the plaintiff leave to file the report.

In a personal injury claim arising from a motor vehicle accident, the jury awarded the plaintiff general damages.

The defendants subsequently brought a threshold motion, arguing that the plaintiff's claim for non-pecuniary loss was barred because she failed to establish a permanent, serious impairment of an important physical, mental, or psychological function under the Insurance Act.

The court, applying the three-part Meyer v. Bright inquiry, found that while the plaintiff experienced intermittent pain, her impairment did not substantially interfere with her regular employment or most usual daily activities, considering her age and pre-accident lifestyle.

The court granted the defendants' motion, dismissing the plaintiff's claim for non-pecuniary damages.

In a civil jury trial for damages from a motor vehicle accident, the court ruled on whether a proposed jury question concerning the plaintiff's lost earning capacity should be submitted.

The court found insufficient evidence to allow the jury to reasonably calculate or quantify this loss without speculation, as there was no adduced evidence of the plaintiff's annual income before or after the accident.

Citing established jurisprudence, the court determined that a question should only go to the jury if there is "reasonable evidence" to support a judicial finding.

Consequently, the question regarding loss of earning capacity was not put to the jury.

The plaintiff appealed a Master's order dismissing her action against the police defendants for delay.

The plaintiff argued the Master erred by failing to consider her alleged mental illness, her involvement in multiple other proceedings, an order for trial together with another action, and by refusing to consider evidence filed in a companion motion.

The Divisional Court dismissed the appeal, finding no error of law, exercise of discretion on wrong principles, or palpable and overriding error in the Master's decision.

The appellants appealed an order staying their action against an Alberta hotel corporation for lack of a real and substantial connection to Ontario.

The Court of Appeal upheld the motion judge's finding that none of the presumptive connecting factors were met.

The court also rejected the appellants' argument that Ontario should assume jurisdiction under the forum of necessity doctrine due to the expiry of the Alberta limitation period, noting the appellants made a tactical decision not to sue in Alberta.

The appeal was dismissed.

The defendant, Roman Vasylyovy Karaman, brought a motion for summary judgment to dismiss the plaintiffs' action for damages arising from a car accident that resulted in the death of Denis Kavounov.

The central issue was who was driving the car.

Mr. Karaman, the only survivor, testified he was a passenger and Mr. Kavounov was driving.

The plaintiffs' expert evidence concluded it was not possible to determine who was driving.

The court found no contradictory evidence to Mr. Karaman's direct testimony and concluded there was no genuine issue requiring a trial.

The motion for summary judgment was granted, dismissing the action against Mr. Karaman.

The defendant moved to dismiss the plaintiff's 15-year-old personal injury action for delay and breach of court orders, primarily due to the plaintiff's failure to complete defence medical examinations.

The plaintiff, who had been self-represented for a significant period, refused to be examined by male doctors due to severe anxiety stemming from a past assault, and later had confrontational interactions with female examiners.

The Master found the delay was inordinate but excusable under the circumstances, and that the defendant suffered no actual prejudice.

The motion to dismiss was denied, but the Master imposed strict terms for a final defence medical examination, including that it be conducted by a female specialist and be audio recorded.

The defendant moved to dismiss the plaintiff's 15-year-old personal injury action for delay and breach of court orders, primarily stemming from the plaintiff's failure to complete defence medical examinations.

The plaintiff, who had been self-represented for a significant period, refused to be examined by male doctors due to severe anxiety and later had conflicts with female examining doctors.

The court found the delay was inordinate but excusable given the circumstances, and that the defendant suffered no actual prejudice.

The motion to dismiss was denied, but the court ordered the plaintiff to attend a defence medical examination with a female specialist under strict conditions, including audio recording, warning that failure to comply would result in dismissal.

The defendants moved to dismiss a civil action alleging assault and false arrest by a police officer on the basis of delay under Rule 24.01(1)(c) of the Rules of Civil Procedure and for breach of a prior court order.

The action had been commenced more than fourteen years earlier and had seen virtually no progress for almost a decade following examinations for discovery, with numerous undertakings remaining unanswered and the plaintiff failing to comply with an order requiring her to appoint counsel or file a notice of intention to act in person.

The court held that the delay was inordinate and inexcusable and that the plaintiff had failed to rebut the presumption of prejudice arising from the lengthy passage of time.

Although the delay was not found to be intentional and contumelious, the circumstances created a substantial risk that a fair trial would no longer be possible.

The action was dismissed for delay, with costs awarded to the defendants.

The appellant appealed a summary judgment decision that found the respondent not liable in a multi-vehicle motor vehicle accident.

The motion judge had relied on the appellant's evidence, another witness, and the accident report, while rejecting the respondent's own evidence about her position in the queue due to inconsistencies with physical damage.

The Court of Appeal found no palpable and overriding error and dismissed the appeal, awarding costs to the respondents.

The appellant appealed a summary judgment dismissing her action for long-term disability benefits.

The motion judge had dismissed the action on the basis of a contractual one-year limitation period, failure to meet qualifying conditions, and the statutory two-year limitation period.

The Court of Appeal found the motion judge erred in relying on the contractual limitation period without making necessary findings under section 22 of the Limitations Act, 2002.

However, the Court upheld the dismissal because the appellant failed to meet the policy's qualifying conditions and her action was barred by the statutory two-year limitation period.

The respondent submitted written submissions regarding costs following an appeal.

The Court of Appeal ordered the appellant to pay costs to the respondent fixed in the amount of $2,500, inclusive of disbursements and taxes.

The defendants sought costs thrown away following an adjournment of a scheduled trial.

The court noted that the adjournment resulted from the plaintiff’s lack of preparation and disclosure, and criticized the plaintiff’s counsel for making statements about important facts that were later retracted as false.

The plaintiff’s counsel also failed to provide written submissions on costs despite being given a deadline.

The court awarded the defendants costs thrown away on a full indemnity basis for the futile attendance.

The appellant sued the Crown for injuries sustained at a provincial park boat launch.

The motion judge granted summary judgment dismissing the tort action because the appellant failed to provide the required 10-day notice under section 7(3) of the Proceedings Against the Crown Act.

On appeal, the appellant argued that strict compliance was not required and sought leave to amend the claim to plead breach of contract.

The Court of Appeal dismissed the appeal, holding that the legislature did not intend a flexible approach to the notice periods under the Act, and that the proposed contractual claim was time-barred under the Limitations Act, 2002.

The court determined costs following a motion by the defendant to strike portions of the statement of claim.

Although the defendant succeeded in striking certain allegations as irrelevant or related only to a barred wrongful dismissal claim, the relief granted was significantly narrower than what was sought.

The court found the motion was necessitated by the plaintiff advancing irrelevant matters that would have unnecessarily expanded discovery and prolonged the litigation.

However, because the defendant attempted to strike substantially more material than was warranted, full costs were not justified.

Partial costs were awarded to the defendant.

The defendant brought a motion under Rule 25.11(c) of the Rules of Civil Procedure to strike portions of a statement of claim as an abuse of process following a prior order that barred the plaintiff’s wrongful dismissal and long‑term disability claims due to delay.

The plaintiff issued a revised statement of claim that removed certain paragraphs but retained factual allegations the defendant argued were tied to the barred claims.

The court held that pleadings must contain material facts rather than evidence and should avoid irrelevant allegations that would delay a fair trial.

While most of the pleading was permitted to stand, the court found certain portions were not germane to the remaining causes of action and would unnecessarily complicate the proceeding.

The court ordered limited portions of the pleading struck while otherwise allowing the claim to proceed.

The appellant appealed a trial judgment that found him 50% contributorily negligent for his loss, despite also finding the respondent liable for negligent misrepresentation regarding a mortgage life insurance policy.

The appellant argued that a finding of negligent misrepresentation, which requires reasonable reliance, precludes a finding of contributory negligence.

The Court of Appeal held that the two findings can logically co-exist at law, as the focus of each analysis is different.

However, on the facts of this case, the trial judge's finding that the appellant acted unreasonably in failing to inquire about the insurance term was inconsistent with the reasonable reliance required for negligent misrepresentation.

The appeal was dismissed.