Brian A. Pickard

The plaintiff, Glenn Bowles, moved to amend his Statement of Claim to add Katena Products Inc. and Abbott Medical Optics Canada Inc. (AMO) as defendants, arguing discoverability and misnomer, after the presumptive limitation period had expired.

AMO opposed, asserting the claim was statute-barred due to lack of due diligence in identifying them.

The court found that the plaintiff and his counsel exercised due diligence, as the identity of the manufacturers was not discoverable until Dr. Hillson's counsel disclosed it on June 26, 2015.

The court granted the motion to add both Katena and AMO as defendants, finding the doctrine of discoverability applied and the misnomer doctrine did not.

The appellants sought leave to amend their statement of defence to plead a limitations defence at a very late stage of litigation, after failing to comply with a consent order deadline.

The motion judge dismissed the motion, finding the appellants had not demonstrated it was in the interests of justice to grant an extension of time under the Rules of Civil Procedure.

The appellants appealed, arguing the motion judge erred in characterizing the order as a consent order, in finding inadequate explanation for delay, and in considering prejudice beyond the two-month delay.

The Court of Appeal upheld the dismissal, finding the motion judge properly applied the test and that the appellants failed to provide a compelling explanation for their non-compliance with the consent order.

Kevin Pepper sued The Standard Life Assurance Company of Canada ("Standard Life") for long-term disability (LTD) benefits.

Standard Life brought a summary judgment motion to dismiss the action as statute-barred under the Limitations Act, 2002.

Pepper brought a cross-motion for a declaration that his action was not statute-barred.

The court dismissed Standard Life's motion and granted Pepper's cross-motion, finding that the limitation period for Pepper's claim was delayed.

The delay was attributed to the complex history of benefits denials, appeals, and Standard Life's continued invitations for further information, which led Pepper to reasonably believe that litigation was not yet an "appropriate" means to seek a remedy.

The moving defendants sought leave to extend the time for bringing a motion to amend their pleadings, a deadline previously set by consent at a pre-trial conference.

The court dismissed the motion, finding that the defendants failed to provide a satisfactory explanation for their two-month delay in bringing the motion, which was filed only ten days before trial in a 13-year-old case.

The court emphasized that consent orders are contractual, and case management deadlines are crucial for delivering timely and affordable justice.

Granting the extension would imperil the trial date and cause unconscionable prejudice to the plaintiffs, especially given the potential implication of their counsel as a witness.

The plaintiffs brought a motion to amend their statement of claim in a medical malpractice action to replace 'Dr. John/Jane Doe' with two specific physicians, after the expiry of the limitation period.

The proposed defendants opposed the motion, arguing it was an attempt to add new parties out of time.

The court found that the litigation finger was clearly pointed at the proposed defendants, establishing a misnomer.

The court declined to exercise its residual discretion to refuse the amendment, noting the proposed defendants had early notice of the claim and suffered no non-compensable prejudice.

The motion was granted.

The self-represented plaintiff brought a motion for an extension of time to appeal a Master's order that had dismissed her motion for further production of her former solicitor's file.

The court applied the test for extending time to appeal and found that the proposed appeal lacked merit, as the Master had made factual findings that the requested documents were either already produced or did not exist, and correctly held that intake notes belong to the solicitor.

The motion was dismissed with no order as to costs.

The plaintiffs moved to set aside a registrar's dismissal order for delay under Rule 37.14.

The action, arising from a 2007 slip and fall, had been dismissed after the plaintiffs failed to set it down for trial by the deadline ordered at a previous status hearing.

The Master applied the four-part Reid test.

Although the plaintiffs failed to adequately explain the delay or show inadvertence in missing the deadline, they moved promptly to set aside the order and rebutted the presumption of prejudice.

The Master found no actual prejudice to the defendants and granted the motion, allowing the action to proceed on a strict timetable.

The appellant appealed an order declaring him a vexatious litigant.

He argued he was denied the right to be heard when the application judge denied him standing and ejected him from the courtroom, and that the judge failed to accommodate his medical illness.

The Court of Appeal dismissed the appeal, finding the application judge was entitled to refuse standing due to the appellant's failure to comply with a prior peremptory order.

The Court also held that the appellant's disruptive behaviour justified his ejection and further demonstrated his vexatious manner of conducting proceedings.

The plaintiff brought a motion for summary judgment seeking punitive damages against his former lawyer and paralegal, alleging they fraudulently misrepresented the settlement amounts of his tort and accident benefits claims to pocket the difference.

The court found that while the evidence against the paralegal was compelling and highly suspicious, the conflicting evidence regarding the lawyer's involvement and the requirement to prove actual loss for civil fraud necessitated a full trial.

The motion for summary judgment was dismissed.

The plaintiff moved to set aside orders compelling answers to undertakings and dismissing the action, arguing that an earlier motion and subsequent appeal had finally resolved those issues and rendered them res judicata.

The court applied the issue estoppel branch of res judicata and held that, although the earlier decision was final and involved the same parties, it did not determine that all undertakings and refusals had been answered.

The later motions concerned outstanding undertakings that remained unresolved, and the plaintiff had failed to respond to the motion before the first motion judge or promptly move to vary that order.

The court held that the later judges had jurisdiction to make their orders and refused to set aside the dismissal.

The plaintiff brought a motion to set aside a registrar’s order dismissing a medical malpractice action as abandoned under Rule 48.15(1) of the Rules of Civil Procedure and to extend the time for service of the originating process.

The court applied the Reid factors governing relief from registrar dismissal orders, considering the explanation for delay, inadvertence, promptness in bringing the motion, and prejudice to the defendant.

The delay arose primarily from severe personal tragedies affecting the plaintiff’s former counsel, which rendered him unable to practice and resulted in the plaintiff being unaware that her action had not been prosecuted.

The court found that the plaintiff acted promptly once aware of the issue and that the defendant had not demonstrated actual prejudice from the delay.

The registrar’s dismissal order was therefore set aside and late service of the notice of action and statement of claim was validated.

The appellant's action was dismissed by the motion judge for failing to comply with discovery undertakings to produce an allergist's medical records.

The motion judge found the respondents were prejudiced because the records were allegedly destroyed after the 2006 discovery.

The Court of Appeal allowed the appeal and set aside the dismissal, finding no evidence to support the assertion that the records were destroyed during that specific time period, and thus no basis for the finding of actual or potential prejudice.

The appellants appealed an order dismissing their motion to set aside a registrar's dismissal of their personal injury action for delay under Rule 48.14.

The action was dismissed in 2007 after the appellants' former lawyer failed to set the action down for trial or respond to the status notice.

The Court of Appeal found the delay between 2006 and 2010 to be inexcusable, attributing it almost entirely to the appellants' counsel.

The Court held that the finality principle outweighed the lack of actual prejudice to the respondents, noting the appellants still had recourse through a solicitor's negligence action.

The appeal was dismissed.

The appellant appealed an order dismissing their action.

The Court of Appeal allowed the appeal and reinstated the action on the condition that the appellant pay the respondent's agreed costs thrown away of $13,600 within 60 days.

The plaintiff was injured when she fell from the rear bumper of her parked pick-up truck after the tailgate collapsed due to an allegedly defective latch mechanism.

She sued the manufacturer nearly five years later.

The manufacturer moved for summary judgment, arguing the claim was barred by the two-year limitation period for 'damages occasioned by a motor vehicle' under s. 206(1) of the Highway Traffic Act.

The motion judge dismissed the motion, finding the truck was not the dominant feature of the claim.

The Court of Appeal upheld the decision, concluding the truck was not acting in the character of a motor vehicle and the damages were not occasioned by a motor vehicle.

The plaintiff appealed an order of a master dismissing his personal injury action for delay at a Status Hearing.

The action arose from an alleged assault during a soccer game.

The Divisional Court allowed the appeal, finding that the master applied incorrect principles and misapprehended evidence regarding the preservation of documents.

The court noted that dismissing an action at a first Status Hearing is an extreme measure that requires more than a bald allegation of prejudice, and reinstated the action.

The appellants appealed an order of a Master refusing to set aside a Registrar's order dismissing their personal injury action for delay.

The Divisional Court found that the Registrar failed to serve the Status Notice on the appellants' solicitor of record, instead sending it to a previous address of the lawyer with carriage of the file.

Because the Registrar failed to comply with the strict service requirements of Rule 48.14, the Registrar lacked jurisdiction to dismiss the action.

The appeal was allowed and the dismissal order was set aside.

The appellant employee suffered a mental breakdown and sued her employer for negligent infliction of mental suffering and negligent supervision, following a period of workplace restructuring, denial of a promotion, and disciplinary actions for absenteeism.

The trial judge dismissed the action, finding the employer's actions were reasonable responses to declining performance and that the employer was unaware of the employee's mental illness.

The Court of Appeal dismissed the appeal, holding that even if a free-standing tort of negligent infliction of mental suffering exists in the employment context, the trial judge's factual findings precluded liability.

The appellant appealed the dismissal of her solicitor negligence claim, arguing the respondent law firm failed to ensure she received independent legal advice before mortgaging her home for a family business.

The Court of Appeal dismissed the appeal, upholding the trial judge's factual findings that the appellant was a partner in the business and knowingly mortgaged her home to provide funds for it.