Ashu Ismail

The defendants brought a motion seeking orders for the plaintiff to undergo two medical examinations—one by an orthopedic surgeon and one by a neurologist.

The court considered whether these examinations were necessary for trial fairness or duplicative of prior assessments.

The court found that the requested examinations were not duplicative and were necessary to ensure fairness, and ordered them to proceed.

The court declined to order the plaintiff to pay a cancellation fee for a missed appointment due to her chronic pain, but awarded the defendants costs of the motion.

The decision addresses a motion by the defendants (including His Majesty the King in Right of Ontario and several OPP officers) to strike portions of the plaintiffs’ Amended Amended Statement of Claim and Economical Insurance Group’s Defence and Crossclaim, under Rules 21 and 25.11 of the Rules of Civil Procedure.

The court strikes certain paragraphs for failing to disclose a reasonable cause of action, particularly those alleging a private duty of care in negligent investigation by police officers to victims, but allows others to stand and grants leave to amend.

The court reviews the legal principles for striking pleadings and the scope of police officers’ duty of care, ultimately finding that a tenable claim may exist based on statutory duties.

The plaintiffs, Lucia Derenzis and Joshua Da Silva, brought a motion under Rule 30.10 of the Rules of Civil Procedure for production of records held by the License Appeal Tribunal (LAT) in relation to their constitutional challenge to Ontario’s no-fault auto insurance scheme.

The records included adjudicators’ notes, draft decisions, and over 400 emails.

The LAT and Tribunals Ontario opposed production, citing deliberative secrecy and solicitor-client privilege.

Justice Mandhane found the records relevant and necessary to the constitutional challenge, and ordered production except for those protected by solicitor-client privilege.

The decision addresses the limits of deliberative secrecy and the necessity of evidence for constitutional litigation.

The decision addresses cross-motions to remove counsel for conflict of interest in a privacy action arising from a motor vehicle accident.

The plaintiff sought to remove the defendant’s counsel, Ms. Schultz, due to her dual role as counsel for the accident benefits insurer and for the defendant in the privacy action.

The court found a conflict and ordered her removal.

The defendant’s motion to remove the plaintiff’s counsel, the Campisi firm, was dismissed as there was no real basis to believe the firm could provide material, non-privileged evidence.

The plaintiffs sued multiple defendants, including an insurer and its subcontractors, for various torts arising from the handling of a statutory accident benefits claim.

The defendants brought Rule 21 motions to strike the claims for lack of jurisdiction and disclosing no reasonable cause of action.

The court refused to strike the action for lack of jurisdiction because of an outstanding constitutional challenge to the Insurance Act.

However, the court struck all tort claims against the moving defendants, except for the claim of intentional infliction of emotional distress, finding it was plain and obvious they could not succeed.

The court also struck the plaintiff's constitutional challenges to the Statutory Accident Benefits Schedule as an abuse of process.

The appellant, Shelly Legault, appealed a trial decision that dismissed her action against TD General Insurance Company for denial of a homeowner's insurance claim following a fire.

The trial judge found that Legault had made a fraudulent declaration regarding additional living expenses (ALE), leading to forfeiture of coverage, and granted TD damages on a counterclaim, plus costs.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellant's fraud vitiated the policy, that the payment of professional witnesses was permissible, and that the costs award was within the trial judge's discretion.

The defendants brought a motion for summary judgment, arguing that the motor vehicle accident was an "inevitable accident" due to the defendant driver suffering a severe anaphylactic shock from an allergic reaction to naproxen (Aleve).

The plaintiff opposed, asserting that genuine issues of fact and credibility required a trial.

The court dismissed the motion, finding that there were complex and highly disputed factual issues, particularly regarding the timing of the anaphylactic reaction, the driver's potential negligence in taking a double dose of medication without reading instructions, and when unconsciousness occurred.

The court determined it could not make the necessary factual findings for a fair and just determination without a full trial, even with enhanced fact-finding powers.

The plaintiff sought leave to amend her statement of claim to add a claim for punitive and aggravated damages against the defendants for intentional infliction of mental distress.

The proposed claim was based on the surveillance tactics of investigators retained by defence counsel and counsel's failure to respond to inquiries.

The court dismissed the motion, finding that the proposed amendments were not tenable at law because a party cannot be vicariously liable in punitive damages for the actions of their lawyer, and opposing counsel owes no duty of care to the plaintiff.

The court also found that granting the amendment would cause non-compensable prejudice by likely requiring all counsel to be removed from the record to testify.

The appellants, Joseph Campisi and Campisi LLP (lawyers), appealed a lower court decision that reopened a contingency fee agreement (CFRA) under the Solicitors Act, declared it unenforceable, ordered an assessment of fees, and ordered repayment of $150,000 for excessive fees related to an Accident Benefit Claim.

The Court of Appeal confirmed jurisdiction to hear the appeal.

The lawyers challenged the finding that the Accident Benefit Claim fee was "excessive and unreasonable" and the costs order.

The Court of Appeal dismissed the appeal, finding no error in the application judge's interpretation of the Solicitors Act (ss. 24 and 25) or in her assessment of the reasonableness of the fees, which considered factors beyond just hourly rates.

The costs award was also upheld.

The appellant, Shelly Legault, brought a motion within her appeal against TD General Insurance Company.

The motion sought relief from filing all trial transcripts for the appeal record and leave to amend her notice of appeal to include a mid-trial ruling and a costs decision.

The court dismissed the request to be relieved from filing all transcripts, agreeing with the respondent that the full record was necessary given the appellant sought a new trial.

However, the court granted leave to amend the notice of appeal to specify grounds regarding the payment of non-expert witnesses and to appeal the costs award.

The non-party Gore Mutual Insurance Company brought a motion under Rule 37.14(1) to vary a previous production order (the "Doi Order"), arguing that its failure to appear at the original motion was due to accident or mistake.

The plaintiff opposed the motion.

The court dismissed Gore Mutual's motion, finding that it failed to establish that its non-appearance was due to accident or mistake, but rather due to carelessness and lack of diligence in processing court documents.

The court also found that Gore Mutual failed to bring its motion forthwith and that the general claim of prejudice lacked merit, especially given the implied undertaking rule.

This is a costs ruling following a 16-day trial where the defendant, TD General Insurance Company, was the successful party, having proven fraud against the plaintiff, Shelly Legault.

The defendant sought substantial indemnity costs of over $366,000.

The court, exercising its discretion under the Courts of Justice Act and Rule 57.01, found the plaintiff's conduct (perpetrating fraud, suing for $1M, and prolonging litigation for seven years) warranted substantial indemnity costs.

While acknowledging some excessive time spent by defendant's counsel due to inadequate investigation, the court ultimately fixed the costs payable by the plaintiff to the defendant at $289,609.84, inclusive of fees, disbursements, and HST, balancing reasonableness and proportionality.

The plaintiff sued her home insurer after it denied her claim for a fire loss.

The insurer denied the claim on the basis that the plaintiff committed fraud in her claim for Additional Living Expenses (ALE) by submitting a fake lease and using the rent money for other purposes.

The court found that the plaintiff and her purported landlord engaged in a deliberate scheme to obtain money from the insurer under the guise of rent.

Because the plaintiff made a willfully false statement in her proof of loss regarding the ALE, her entire claim was vitiated.

The plaintiff's action was dismissed, and the insurer's counterclaim for repayment of amounts already paid out was granted.

The Receiver of a deceased personal injury lawyer's professional corporation brought a motion seeking to impose a 'Sliding Fee Structure' on new counsel who took over the deceased lawyer's client files.

The Receiver argued this was necessary to efficiently realize on the estate's interest in the files.

The court dismissed the request to impose the fee structure, finding it would inappropriately override the clients' statutory rights under the Solicitors Act to receive and assess a bill.

However, the court ordered new counsel to provide the Receiver with 'Determinable Information' about the files to assist the Receiver in rendering accounts, subject to a privilege protocol.

The applicant successfully challenged a contingency fee agreement with her former lawyers, resulting in the agreement being declared void and an order for the assessment of the lawyers' accounts.

The respondents' subsequent motion to reopen the application was dismissed.

In this costs decision, the court awarded the applicant costs of the application on a partial indemnity basis and costs of the motion on a substantial indemnity basis, noting the respondents' aggressive opposition and unfounded allegations of dishonesty.

During a trial regarding an insurance claim denial, the plaintiff brought a mid-trial motion to exclude the testimony of two of the defendant's witnesses.

The plaintiff argued that the defendant's financial compensation of these witnesses for their preparation time and trial attendance constituted an abuse of process.

The court found that the witnesses, who were former employees and agents of the defendant, were 'professional' fact witnesses who required extensive preparation time to review voluminous documents.

The court held that compensating such witnesses for their preparation time is reasonable and does not automatically taint their evidence.

The motion to exclude the testimony was dismissed.

The defendants, Fowler Construction Company Limited and The Corporation of the City of Toronto, brought a motion under Rule 33.01 of the Rules of Civil Procedure to compel the plaintiff, Tennisha Pulford, to attend a defence neuropsychological examination.

The plaintiff opposed, arguing the motion lacked evidence and sought to corroborate a deficient prior expert opinion.

The court granted the motion, emphasizing the principle of "trial fairness" and the need for "matching reports" from experts in the same specialty, particularly given the plaintiff's assertion of cognitive and neurological damage.

Despite a noted deficiency in the defendants' supporting evidence, the court found the need for the examination outweighed this, and that it would not delay the trial.

No costs were awarded due to the evidence deficiency.

The appellant appealed a Superior Court decision that dismissed her action for lack of subject matter jurisdiction and struck her pleadings as frivolous, scandalous, and vexatious.

The core of her claim concerned how her insurer handled her statutory accident benefits claims, alleging a conspiracy with healthcare practitioners to stage examinations and produce false reports, and breach of privacy.

The Court of Appeal affirmed the motion judge's finding that the Licence Appeal Tribunal has exclusive jurisdiction over disputes related to statutory accident benefits under s. 280 of the Insurance Act, regardless of how the claims are framed.

The Court also upheld the denial of leave to amend pleadings and dismissed the appeal regarding costs due to procedural non-compliance and lack of error in principle.

The appellant appealed the summary judgment dismissal of his action against the City of Toronto, which was based on his failure to provide timely notice under s. 42(6) of the City of Toronto Act, 2006, and the absence of a reasonable excuse for the delay.

The Court of Appeal affirmed the motion judge's decision, finding no palpable and overriding errors in her conclusion that the appellant failed to establish a reasonable excuse for the three-year delay in providing notice, despite having sufficient information to investigate earlier.

The plaintiff appealed an Associate Judge's order requiring her to attend three independent medical examinations, re-attend discovery, and restricting her counsel from communicating with defence experts.

The defendants cross-appealed the denial of a pleading amendment alleging the plaintiff was a 'sophisticated litigant' who might exaggerate her claims.

The Superior Court upheld the denial of the pleading amendment, the discovery re-attendance, and the neuropsychological examination.

However, the court set aside the orders for orthopedic and vocational assessments due to insufficient evidence and lack of jurisdiction for the Associate Judge to order an assessment by a non-health practitioner.

The restriction on counsel communicating with defence experts was upheld but varied to expire once the expert report is completed.