Barry G. Marta

In this post-verdict decision following a 20-day jury trial in a historical sexual assault case, the court addressed four issues: (1) whether to amend the statement of claim to reflect the jury's verdict exceeding the pleaded amounts; (2) whether to set aside or reduce the $1,000,000 punitive damages award against the estate; (3) whether the defendant organization should be held severally rather than jointly liable; and (4) the appropriate pre-judgment interest rates.

The plaintiff was awarded $400,000 in general and aggravated damages, $940,000 for past income loss, and $50,000 for future counselling, with the jury apportioning liability 75% to the estate and 25% to the organization.

The court upheld the jury verdict in all respects, granting the amendment to the pleading, refusing to interfere with the punitive damages award, maintaining joint and several liability, and awarding pre-judgment interest at 5% on non-pecuniary damages from June 1992 and 2% on pecuniary damages from June 1992, calculated bi-annually.

This endorsement concerns the costs award following a jury trial where the plaintiff, Sara Baker, successfully sued Blue Cross Life Insurance Company of Canada for wrongful termination of long-term disability benefits.

The jury found Ms. Baker totally disabled and awarded her retroactive benefits, aggravated damages, and punitive damages.

The court, exercising its discretion under s. 131 of the Courts of Justice Act, awarded Ms. Baker full indemnity costs, extending the rationale from 'duty to defend' cases to wrongful denial of long-term disability benefits, citing the unique character of such policies as a special circumstance.

The court fixed the costs at $1,083,953.50, including fees, HST, and disbursements, after considering factors under Rule 57.01 and making a discount for some duplication of legal work.

The plaintiff brought a motion to strike the jury notice in her long-term disability benefits action, seeking to proceed virtually due to COVID-19 related jury trial suspensions.

The court considered factors including available resources, local pandemic impact, prejudice to parties, age of the case, and history of adjournments.

The motion was dismissed, as the plaintiff failed to discharge her onus to show the trial should proceed without a jury or that parties would be better served by its discharge.

The trial was adjourned, and the defendant was awarded partial indemnity costs.

The Court of Appeal for Ontario granted leave to appeal and allowed an appeal from the Divisional Court, restoring a motion judge's order to strike jury notices in two civil actions (tort and accident benefits) arising from a motor vehicle collision.

The motion judge had struck the jury notices due to significant delays in scheduling civil jury trials in Ottawa amidst the COVID-19 pandemic, ordering judge-alone trials in tranches.

The Divisional Court had overturned this, finding the motion judge's decision arbitrary due to insufficient evidence of prejudice beyond delay.

The Court of Appeal held that delay alone can constitute prejudice, that appellate courts should show deference to discretionary case management decisions, and that the motion judge had sufficient evidence of local conditions to justify the order.

The plaintiffs commenced a tort action and an accident benefits action arising from a 2013 motor vehicle accident.

The actions were ordered to be tried together before a jury in April 2020, but the trial was suspended due to the COVID-19 pandemic.

Facing indefinite delays for civil jury trials, the plaintiffs moved to strike the jury notices.

The court granted leave to bring the motion and struck the jury notices, finding that the real and substantial prejudice caused by the delay outweighed the defendants' substantive right to a jury trial.

The court concluded that justice would be better served by proceeding to trial in a timely manner before a judge alone.

The appellant, Randolph Burns, appealed a motion judge's order striking out his statement of claim against two corporate employees (Lauren McLean and Anna Oslizlok) without leave to amend, and granting RBC Life's request for a discovery order.

The appeal concerned the adequacy of claims pleaded against corporate employees for torts allegedly committed in the course of their employment.

The Court of Appeal found that the motion judge correctly determined that the statement of claim failed to plead specific material facts to support individualized claims against the employees, but erred in denying leave to amend.

The appeal was allowed in part, granting Mr. Burns leave to amend his statement of claim.

The defendants, RBC Life Insurance Company, Lauren McLean, and Anna Oslizlok, sought costs on a partial indemnity basis totaling $7,108.52 after successfully striking out the claim against McLean and Oslizlok and succeeding on a discovery order motion.

The plaintiff, Randolph Burns, argued for a reduced award of $2,265.00, citing uncontested portions, disproportionate time spent by defendants' counsel, and unreasonable settlement discussions.

The court found the motions important and capably argued, rejecting the plaintiff's arguments regarding work product and settlement discussions.

The court awarded $6,000, all inclusive, to the defendants.

The plaintiff sued his disability insurer and two of its employees after his long-term disability benefits were terminated.

The individual employees moved to strike the claims against them for failing to disclose a reasonable cause of action, arguing they were acting within the scope of their employment.

The insurer moved to determine the order of examinations for discovery.

The court granted both motions, striking the claims against the employees without leave to amend because the plaintiff failed to plead that their actions were independently tortious or exhibited a separate identity from the employer.

The court also ordered the plaintiff to be examined first, as the insurer had served the first notice of examination.

The plaintiff appealed a Master's order requiring him to attend an examination for discovery with accommodations, arguing his medical condition (vascular malformation and conversion disorder) made him physically unable to attend without serious risk of harm.

The plaintiff also appealed the Master's costs award, arguing the Master was functus officio when extending the time for the defendant's costs submissions.

The Superior Court of Justice dismissed the appeal, finding the Master made no palpable and overriding error in assessing the medical evidence and had the discretion to extend the time for costs submissions before a formal order was entered.

The appellant, an out-of-province insurer, appealed an arbitrator's decision finding that the priority provisions in s. 268 of the Insurance Act applied to it for a motor vehicle accident that occurred in Ontario.

The appellant argued that applying the Ontario legislation would have an extra-jurisdictional effect.

The Superior Court of Justice dismissed the appeal, applying the reasonableness standard of review.

The court held that because the accident occurred in Ontario and the appellant had signed a Power of Attorney and Undertaking (PAU), it was bound by the priority provisions of the Insurance Act.

The defendant, RBC Life Insurance Company, brought a motion to compel the plaintiff, Michael Scuglia, to attend an examination for discovery and cross-examination on an affidavit.

The plaintiff resisted, arguing that any form of examination would be harmful to his physical and mental health due to existing medical conditions, including a vascular malformation and conversion disorder.

The court reviewed medical evidence from both parties, finding the plaintiff's medical evidence unpersuasive regarding the risk of serious harm.

The court concluded that the plaintiff failed to meet the high onus to be relieved from discovery obligations and granted the defendant's motion, ordering the plaintiff to attend discovery and cross-examination with appropriate accommodations.

This is a costs decision following the dismissal of a motion brought by the defendant Wawanesa Mutual Insurance Company.

The plaintiff, Reggie Babcock, was found to be the successful party regarding costs, as the court's order for a defence medical and dismissal of the balance of Wawanesa's relief equalled or beat the plaintiff's offer to settle costs.

The court deemed Wawanesa's motion entirely unnecessary and attributed its necessity to Wawanesa's conduct.

The plaintiff was awarded substantial indemnity costs of $27,810.16, payable by Wawanesa.

The defendant Wawanesa Mutual Insurance Company brought a motion seeking orders for the plaintiff to undergo several independent medical examinations (IMEs) in a personal injury action arising from an automobile accident.

The plaintiff opposed, arguing delay and the need for leave under Rule 48.04 of the Rules of Civil Procedure.

The court found Wawanesa did not require leave under Rule 48.04 as it had not set the action down for trial or consented to its placement on the trial list.

However, the court criticized Wawanesa's significant delay in seeking IMEs, noting its failure to list expert witnesses in pretrial briefs.

The motion for a neurological examination was granted with strict deadlines for report service, while requests for occupational therapy, otolaryngology, and psychiatric examinations were dismissed due to lack of evidence regarding their necessity or the plaintiff not relying on such evidence.