Bronwyn Martin

A case conference was held to schedule summary judgment motions brought by the Toronto Police Services Board and the Eaton Centre defendants.

The plaintiffs opposed the motions and sought a 14 to 17-day hearing to accommodate viva voce cross-examination of experts, arguing for a trial instead.

The court rejected the plaintiffs' proposed schedule as contrary to the purpose of summary judgment, which is meant to be a faster process.

The court scheduled a 6-day hearing for May 2021 and set a timetable for the exchange of materials and cross-examinations.

The defendants, the Toronto Police Services Board and the Eaton Centre, sought to schedule summary judgment motions to determine their liability in four related civil actions arising from a 2012 shooting at the Toronto Eaton Centre.

The plaintiffs opposed the motions, arguing they were entitled to a full jury trial on all issues.

The court held that there is no absolute right to a civil trial and that a summary judgment process is a legitimate alternative.

Finding that the liability issues would likely turn on legal concepts and expert evidence rather than disputed facts, the court directed that the summary judgment motions be scheduled.

The plaintiff brought a motion to set aside a registrar's dismissal order and extend the time to set the action down for trial.

The court applied the Reid factors, finding the plaintiff provided a reasonable explanation for the delay, missed the deadline through inadvertence, and rebutted the presumption of prejudice.

The defendants failed to demonstrate actual prejudice, as the unavailability of certain witnesses was not caused by the delay.

The motion was granted and the dismissal order was set aside.

The plaintiffs brought a motion seeking the production of additional documents from the defendants in an action alleging fraudulent accident benefit claims.

The requested documents included law firm financial records and other business records.

The court ordered the production of certain client files and records on consent but denied the request for broader banking and business records, finding them overly broad, disproportionate, and premature prior to establishing liability.

The defendant lawyers, Kubeskran Navaratnam, Marilyn Reiter-Nemetz, and Ronald Lachmansingh, brought a motion to dismiss the plaintiff's claim against them under Rule 21.01(1)(b).

The plaintiff, 9383859 Canada Ltd., alleged negligence and false statements against the lawyers who represented adverse parties in a failed real estate transaction and subsequent litigation.

The court found that lawyers generally owe no duty of care to opposing parties, especially when the opposing party is represented by their own counsel.

The court also held that statements made in pleadings are protected by absolute immunity and that the claims were statute-barred.

Consequently, the motion was granted, and the claims against the defendant lawyers were struck without leave to amend, as they were deemed radically defective, frivolous, vexatious, and an abuse of process.

The appellant, Zaka Ullah Khan, appealed the dismissal of his action by way of summary judgment under Rule 20.

His claim was premised on the assertion that his tort action had settled for a higher amount than he received, with the remainder allegedly misappropriated by the respondents.

The Court of Appeal affirmed the motion judge's finding that while some factual disputes existed (e.g., signing of release, meeting details), they were not material to the core issue.

The motion judge found no evidence to support the claim of a higher settlement or misappropriation.

Consequently, the Court of Appeal dismissed the appeal, denied leave to appeal the costs award, and denied leave to cross-appeal the costs order.

The appellants appealed a Master's decision allowing the respondents to select the appellants' in-house counsel as their representative for examination for discovery.

The in-house counsel also had carriage of the fraud action on behalf of the appellants.

The Superior Court of Justice allowed the appeal, finding that while in-house counsel are not shielded from discovery, requiring counsel of record to attend would be oppressive as it would inevitably prevent him from continuing as counsel, thereby interfering with the appellants' choice of counsel.

The respondents were ordered to select another representative.

The plaintiff, Zaka Ullah Khan, initiated an action against two law firms, Krylov & Company and Devry Smith Frank LLP, alleging fraud and conspiracy regarding the settlement of his personal injury tort action.

The plaintiff claimed the actual settlement amount was higher than what he received and that the defendants misappropriated funds.

The defendants moved for summary judgment, arguing an absence of evidence to support the plaintiff's claims.

The court granted summary judgment in favor of the defendants, finding no genuine issue for trial as the plaintiff's allegations were based on unsubstantiated beliefs and lacked evidentiary foundation.

The defendants brought a motion to examine the plaintiffs' in-house counsel, Mr. Townsend, for discovery in a complex fraud action.

The plaintiffs opposed, arguing that Mr. Townsend lacked firsthand knowledge, and that his examination would be oppressive and risk breaching solicitor-client privilege.

The court, applying Rule 31.03(2) of the Rules of Civil Procedure, affirmed the defendants' prima facie right to select the witness.

It found that in-house counsel is not immune from discovery and that Mr. Townsend's knowledge of the audit results made him a relevant witness, provided questions avoided privileged legal advice.

The motion was granted.

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.

The plaintiff brought a motion for a status hearing and timetable under Rule 48.14 of the Rules of Civil Procedure, while the defendants sought to have the action dismissed for delay.

The court applied the two-part test from Khan v. Sun Life, requiring the plaintiff to show an acceptable explanation for the delay and that the defendants would suffer no non-compensable prejudice.

The court found the plaintiff's explanations for the delay, which included changing counsel and preparing summary judgment materials, to be credible.

Furthermore, the court determined the defendants would not suffer non-compensable prejudice, as a key witness had been located.

The court ordered the action to continue and directed the parties to agree on a timetable.

The court determined questions of law in a special case arising from a motor vehicle accident.

The primary issue was whether Dmytro Lavrov's vehicle was insured by Manitoba Public Insurance (MPI) at the time of the accident, considering MPI's inter-jurisdictional undertaking and notice requirements for policy suspension.

The court found that MPI was precluded from denying coverage based on Dmytro Lavrov's failure to register his vehicle in Ontario and MPI's failure to provide proper notice of policy suspension under Manitoba law, or equivalent Ontario law.

The third-party claim for contribution and indemnity was not conclusively statute-barred, but the limitation defence otherwise remained outstanding for future determination.

The appellant, Toronto Inspection Ltd., appealed a Master's order granting a co-defendant's motion to correct the names of 'John Doe' defendants to specify the appellant.

The appellant argued that only a plaintiff has standing to bring a misnomer motion and that the 'litigating finger' test was not met.

The Superior Court dismissed the appeal, holding that Rule 5.04(2) allows any party to move to correct a misnomer and that the statement of claim clearly pointed the litigating finger at the appellant as the concrete inspector.

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.

The plaintiff successfully moved to set aside a registrar's order dismissing the action for delay.

In this supplementary decision on costs, the defendants sought costs of the motion despite being the unsuccessful party.

The court found this to be a rare and exceptional case warranting an award of costs to the unsuccessful party, as the plaintiff had obtained a significant indulgence after a 28-month delay in bringing the motion and initial evidentiary deficiencies.

The court fixed the defendants' costs at $5,000, reducing the requested amount of $9,436.71 as excessive.

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 set aside a registrar's order dismissing her motor vehicle accident action for delay.

The action was dismissed after the plaintiff's former lawyer failed to set the action down for trial by the court-ordered deadline.

Applying the four-factor test, the Master found that the delay was not inordinate, the missed deadline was due to inadvertence, and the defendants suffered no actual prejudice.

The motion was granted and the dismissal order was set aside, subject to the suspension of pre-judgment interest and payment of a missed defence medical cancellation fee.

Homeowners sued the Town of Huntsville after basement flooding due to Building Code non-compliance and deficient building inspections.

A first action was settled with a payment from the Town's insurer (Lloyd's) and an agreement for repairs, with releases held in escrow.

When the repairs failed, homeowners brought a second action.

The Town applied for a declaration that its insurers (Lloyd's and AIG) had a duty to defend the second action.

The court found that Lloyd's had a duty to defend because the first action was not fully settled, the second action was a continuation of the first, and the Town's exposure to contractual claims arose from counsel retained by Lloyd's.

AIG had no duty to defend as the damage was manifest before its policy period and the second action was primarily contractual.

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.