Bronwyn M. Martin

The plaintiff slipped and fell on a temporary walkway adjacent to a subway construction site during a heavy snowfall.

She sued the City of Toronto, the Toronto Transit Commission, and the general contractor for negligence and gross negligence.

The defendants brought a motion for summary judgment.

The court found that snow removal was actively underway when the plaintiff arrived and that the defendants' actions were reasonable.

The court granted the motion and dismissed the action, finding no genuine issue requiring a trial regarding occupiers' liability or municipal gross negligence.

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 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 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.

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.

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.

The plaintiff brought a motion to amend the statement of claim and substitute the correct corporate defendant in a slip and fall action arising from an accident in a No Frills grocery store.

The proposed defendant argued that the motion improperly attempted to add a new party after the expiry of the two‑year limitation period under the Limitations Act, 2002.

The court held that the plaintiff failed to establish discoverability to extend the limitation period, as there was no evidence rebutting the statutory presumption that the plaintiff knew the identity of the proper defendant when the accident occurred.

However, applying the misnomer doctrine under s. 21(2) of the Limitations Act, 2002 and the principles from appellate authority, the court found that the intended defendant would have understood that the litigation was directed at it despite errors in the name and address.

The amendment therefore constituted correction of a misdescription rather than the addition of a new party.

Leave to amend the claim and correct the defendant’s name and address was granted.

The plaintiff brought a motion to amend the statement of claim to add the proposed U-Haul defendants and substitute them for the defendant 'John Doe' as the owner of the motor vehicle involved in an accident, after the expiry of the limitation period.

The court found that the plaintiff failed to meet the evidentiary threshold for discoverability under Wakelin, as no evidence was led to explain why the identity of the defendants could not have been obtained with due diligence.

However, the court granted the motion based on the doctrine of misnomer under Lloyd, finding a coincidence between the plaintiff's intention to name the vehicle owner and the U-Haul defendants' knowledge that they were the intended defendants.

The court declined to exercise its discretion to refuse the correction.