Brian Robin Moodie

The plaintiffs sought leave to amend their statement of claim to substitute "John Doe" and "ABC Corporation" with specific names (Michael George Alexander Mills and 564242 Ontario Limited) on the basis of misnomer, and also sought leave to bring this motion after the action was set down for trial.

The court dismissed the motion, finding that the plaintiffs had not provided a reasonable explanation for the extraordinary delay in identifying the correct defendants and bringing the motion, and that the proposed defendants would suffer non-compensable prejudice due to the lengthy delay.

The appellants appealed a summary judgment dismissing their medical malpractice action as statute-barred.

The Court of Appeal affirmed the motion judge's finding that the claim was discoverable no later than February 6, 2014, when the family met with a medical malpractice lawyer, and therefore the action, issued on April 11, 2016, was out of time.

The court rejected the argument that expert reports were necessary for discoverability, emphasizing that a claim is discovered when a plaintiff has knowledge of material facts for a plausible inference of liability, not necessarily when the merits are confirmed by expert opinion.

The moving party defendant brought a motion for leave to appeal a prior decision.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party plaintiffs.

Following a trial where the plaintiff was awarded damages for building deficiencies against the builder and the municipality, the court determined the costs of the proceeding.

The plaintiff sought costs on a joint and several basis.

The court awarded the plaintiff partial indemnity costs but declined to make the order joint and several, instead apportioning liability for costs 65% to the municipality and 35% to the builder based on the relative amounts recovered.

The municipality was also awarded costs on its successful cross-claim against the builder.

The court issued supplementary reasons to correct three calculation errors in its original judgment (2020 ONSC 3060).

The errors involved the cost of insulating a wall, the omission of alternate living expenses and general damages from the judgment against Mark Grand, and an incorrect contingency reduction applied to damages payable by the Town of Bracebridge.

The corrections resulted in an increase in Mark Grand's liability for repair costs and out-of-pocket expenses, an increase in the total judgment against Mark Grand to include alternate living expenses and general damages, and an adjustment to the joint and several liability of the Town of Bracebridge and Mark Grand for damages.

The plaintiff purchased a renovated property from one defendant, discovering numerous building deficiencies.

He sued the seller for negligent construction and breach of the Ontario Building Code, and the municipality for negligent inspections and breach of statutory duty under the Building Code Act.

The court found the seller liable for negligent construction and breach of contract, and the municipality jointly and severally liable for conceded deficiencies that should have been caught during inspections.

The plaintiff's claim for contributory negligence was dismissed.

Damages were awarded for repairs, out-of-pocket expenses, alternate living expenses, and general damages.

The municipality's crossclaim against the seller for contribution and indemnity was granted, while the seller's crossclaim against the municipality was dismissed.

Cronnox Inc. sought declaratory relief for defence and indemnity coverage under an expired "claims-made-and-reported" professional liability policy issued by Lloyd's Underwriters.

Cronnox also claimed damages for breach of good faith.

Lloyd's Underwriters and International Programs Group (IPG) brought a cross-application for a declaration of no coverage.

The court found no legal relationship between Cronnox and Lloyd's at the time the claim was reported, as the policy had expired and the reporting period had passed.

Consequently, the doctrines of estoppel and waiver did not apply to create coverage or a new contract of insurance.

The court also found no breach of Lloyd's duties of fair dealing and good faith.

Cronnox's application was dismissed, and Lloyd's application for a declaration of no coverage was granted.

A non-party insurer sought directions from the Court of Appeal regarding the timing of payment for costs orders issued by the Court of Appeal and a lower court judge.

The insurer requested that the costs be payable within thirty days of the appeal hearing date.

The Court of Appeal clarified that the costs were payable forthwith as of the date the appeal was dismissed, with no contrary order having been made.

The Court also awarded costs of the motion itself to the respondent.

The appellant appealed from a Superior Court order dismissing his negligence action against his former lawyers and ordering him to pay costs.

The action arose from the lawyers' representation in a companion motor vehicle accident claim.

The Superior Court dismissed the action because the appellant twice failed to attend a court-ordered defence medical examination by a neurologist, and made clear his intention never to comply with such an order.

The Court of Appeal upheld the dismissal, finding the motion judge had no alternative but to dismiss the claim given the appellant's refusal to comply with the court order.

An insurer sought intervenor status in an action brought by insureds against third-party defendants to pursue a subrogated claim.

The insurer had failed to commence its own subrogated claim within the applicable limitation period.

The Court of Appeal held that an insured has no contractual or statutory obligation to include an insurer's subrogated claim in its action.

The insurer's failure to pursue its own claim within the limitation period could not be cured by seeking intervenor status.

The appeal was dismissed with costs awarded to the respondents.

The plaintiff brought a motion to validate service of a statement of claim on the defendant Cronnox as of April 30, 2014.

Cronnox consented, but two non-parties—Cronnox's insurer (who denied coverage) and Cronnox's former lawyer—opposed the motion, arguing service occurred later, which would affect limitation periods for third-party claims and a related coverage dispute.

The court held the non-parties lacked standing as their economic interests were not directly affected by the order.

Regardless, the court found service was properly effected on April 30, 2014, and validated it accordingly.

The appellant sued two law firms alleging they defrauded him by misappropriating settlement funds from a motor vehicle accident claim.

The motion judge dismissed the action under Rule 2.1.01 of the Rules of Civil Procedure as frivolous, vexatious, or an abuse of process.

The Court of Appeal allowed the appeal, finding that the allegation of misappropriation was not entirely implausible and that the statement of claim did not bear the hallmarks of frivolous or vexatious litigation.

The court held that Rule 2.1.01 should be reserved for the clearest of cases and is not an appropriate mechanism for early dismissal when a pleading asserts a legitimate cause of action.

The appellant's personal injury action was administratively dismissed for delay.

An order was obtained setting aside the dismissal on terms, but the appellant failed to take the required procedural steps or have the order entered.

Years later, the appellant moved to vary the terms of the order.

The motion judge dismissed the motion and stayed the action, finding extreme, unexplained delay and inferred prejudice to the respondents.

The Court of Appeal upheld the decision, finding no error in the motion judge's application of the Reid factors or his conclusion that the delay was unexplained and prejudicial.

The appellant settled a tort claim arising from a motor vehicle accident on the advice of her former lawyer.

Years later, after retaining new counsel for her statutory accident benefits claim, she obtained a psychiatric report indicating her injuries met the catastrophic impairment threshold.

Her new counsel advised her to sue her former lawyer for recommending an improvident settlement.

The former lawyer successfully moved for summary judgment on the basis that the claim was statute-barred.

The Court of Appeal allowed the appeal, holding that the claim was not discoverable until the appellant received legal advice that the settlement was improvident, as her former lawyer had never advised her of any error.

The appellant slipped and fell on ice and snow on the driveway of a rented residential property.

He sued the landlord and later added the tenant as a co-defendant.

The motions judge granted summary judgment dismissing the action against both defendants.

On appeal, the Court of Appeal upheld the dismissal against the tenant, finding the claim was statute-barred because the appellant failed to rebut the presumption that he discovered his claim on the date of the accident.

However, the Court allowed the appeal regarding the landlord, finding genuine issues for trial concerning the interplay between the lease terms, the Occupiers' Liability Act, and the landlord's maintenance obligations under the Residential Tenancies Act.

The plaintiff commenced an action against his former lawyers for professional negligence, alleging they failed to commence a claim against his insurer for damaged equipment.

The action was struck from the trial list and a status notice was issued.

At the contested status hearing, the court found the plaintiff failed to provide an acceptable explanation for the delay of over seven years and failed to show that the defendants would not suffer non-compensable prejudice.

The action was dismissed for delay.

The plaintiffs in two actions arising from a motor vehicle accident appealed a Master's decision dismissing their motions to add the driver and owner of the vehicle they were passengers in as defendants.

The Master found that the two-year limitation period had expired and that the plaintiffs had sufficient facts to allege negligence against the proposed defendants within the limitation period, or alternatively, failed to exercise due diligence to discover those facts.

The Divisional Court dismissed the appeals, finding no error of law or palpable and overriding error in the Master's application of the discoverability doctrine.

This is a costs decision following the successful summary judgment motions of the defendants and third parties in a slip and fall action.

The plaintiff argued that costs should be reduced due to his impecuniosity.

The court rejected this argument, noting that a plaintiff suing for a substantial sum must expect to pay costs if unsuccessful.

The court fixed the costs payable by the plaintiff to the defendants, and the costs payable by the defendant to the third parties, on a partial indemnity basis.

Following the defendants' successful motion for summary judgment which dismissed the action, the parties made submissions on costs.

The parties had previously agreed that the successful party on the motion would receive $10,000 in partial indemnity costs.

The court found this agreement did not preclude the defendants from seeking additional costs for the dismissal of the action.

The court awarded the defendants an additional $15,000 in fees plus $3,873.92 in disbursements on a partial indemnity basis.

In a slip-and-fall action arising from an icy residential driveway at the plaintiff's workplace, the court granted summary judgment dismissing the claim against the tenant as statute-barred under ss. 4 and 5 of the Limitations Act, 2002 because the plaintiff knew or ought to have known from the outset that the premises were rented and that the occupier-tenant should have been sued.

The court also dismissed the landlord's third party claim for contribution and indemnity against the actual occupiers and the real estate parties as barred by s. 18, holding that s. 18 creates an absolute two-year limitation period not subject to discoverability.

On the merits, the absentee landlord was held not to be an occupier under s. 1 of the Occupiers’ Liability Act and not liable under s. 8 because the lease placed snow and ice removal on the tenant and no actionable landlord default was established.

The main action and third party proceeding were both dismissed.