Andrew Scott Kerr

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 appellant was injured in a motor vehicle accident and claimed income replacement benefits (IRBs).

The insurer denied the claim on the basis that the appellant had not worked the required 26 weeks in the 52 weeks prior to the accident.

The appellant applied for mediation more than two years after the denial, arguing the denial was not clear and unequivocal because it invited further information.

The Arbitrator found the denial was clear and unequivocal, and dismissed the IRB claim as statute-barred.

On appeal, the Director's Delegate upheld the Arbitrator's decision, finding no error of law in the conclusion that the refusal was valid and not premature.

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 applicant was injured in a motor vehicle accident and applied for a determination of catastrophic impairment under the Statutory Accident Benefits Schedule.

The core issue was whether his mental and behavioural impairments, specifically his cannabis dependence and adaptation difficulties, constituted a marked impairment (Class 4).

The arbitrator found the applicant's evidence lacking in credibility and preferred the insurer's expert evidence, concluding that the applicant's impairments were only moderate (Class 3) and his combined whole person impairment did not meet the 55% threshold.

The application was dismissed, and the insurer was awarded partial expenses due to the applicant's conduct prolonging the proceeding.

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 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 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 applicant was injured in a rear-end motor vehicle accident and sought statutory accident benefits, including income replacement benefits, housekeeping benefits, and the cost of a multidisciplinary assessment.

The insurer terminated income replacement and housekeeping benefits shortly after the accident.

The arbitrator found that the applicant suffered significant soft-tissue injuries that developed into chronic pain and fibromyalgia, rendering her substantially unable to perform her pre-accident physically demanding job as a product demonstrator, and completely unable to engage in alternative employment.

Income replacement benefits were reinstated.

However, the claim for housekeeping benefits was dismissed, as the evidence showed the applicant retained essential independence in her household tasks, albeit at a slower pace.

The arbitrator also approved the cost of the multidisciplinary assessment, finding it reasonable and necessary given the applicant's complex psycho-physical presentation, and awarded interest on overdue amounts.

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 applicant filed a human rights application alleging discrimination in employment on the basis of disability, three months after the expiry of the one-year limitation period under the Human Rights Code.

The Tribunal held a preliminary hearing to determine if the delay was incurred in good faith pursuant to section 34(2).

The applicant argued that his learning disability and pain medication prevented him from understanding his rights and the limitation period.

The Tribunal found that ignorance of the law does not constitute good faith and that the applicant's medical evidence did not demonstrate an inability to pursue his rights, especially given his concurrent pursuit of WSIB benefits.

The application was dismissed for lack of jurisdiction.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits.

The insurer denied income replacement benefits (IRBs) on the basis that the applicant had not worked the required 26 weeks in the 52 weeks preceding the accident.

The applicant applied for mediation more than two years after the denial.

The arbitrator found that the insurer's denial was clear and unequivocal, triggering the two-year limitation period, and thus the applicant was precluded from proceeding to arbitration on the IRB claim.

However, the arbitrator found that the applicant was not precluded from proceeding with his claim for non-earner benefits (NEBs), as the insurer had separately denied that claim within the limitation period.

The Tribunal held a summary hearing on its own initiative to determine whether the applicant's age discrimination application should be dismissed for having no reasonable prospect of success.

The applicant alleged she was overworked, unfairly disciplined, and transferred with reduced hours due to her age, pointing to similar treatment of other older employees by a new assistant manager.

The Tribunal found that while the applicant's case relied on potentially difficult similar fact evidence, it could not conclude there was no reasonable prospect of success.

The application was allowed to proceed to mediation.

The applicant filed a human rights application alleging age discrimination more than five years after his employment was terminated.

He had initially pursued a civil action for wrongful dismissal that included a claim for damages under the Human Rights Code, which was struck by the court in July 2012.

The applicant waited another 51 weeks before filing his application with the Tribunal.

The Tribunal dismissed the application, finding that while the civil action might explain the delay up to July 2012, there was no good faith explanation for the subsequent 51-week delay in filing the application.

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 insurer, Allstate, sought its expenses after successfully defending an appeal brought by the insured regarding statutory accident benefits.

The Director's Delegate found that Allstate was entirely successful on the appeal and that the appeal did not raise any novel issues of general importance, but rather turned on specific facts.

The Delegate rejected the insured's arguments that the hours claimed by Allstate's counsel for reporting to the client and preparing for the hearing were disproportionate.

Allstate was awarded its legal fees and disbursements fixed at $2,164.38.