C. Hacio

The defendant brought a motion to set aside a default judgment in a wrongful dismissal action.

The defendant argued that its failure to defend the action was solely due to the negligence of its former lawyer, who failed to act despite instructions.

The court applied the test for setting aside a default judgment and found that the defendant moved promptly upon learning of the default, had a plausible explanation for the default, and raised an arguable defence on the merits regarding cause for termination and damages.

The court granted the motion to set aside the default judgment but ordered the defendant to pay the plaintiff's substantial indemnity costs incurred due to the default.

In a voir dire during a personal injury jury trial arising from a motor vehicle accident, the court ruled on the admissibility of expert evidence from three of the plaintiff's proposed medical experts.

The court permitted a chiropractor and an orthopedic surgeon to testify within their specific scopes of practice regarding musculoskeletal issues and trigger points, but precluded them from diagnosing the plaintiff's swallowing disorder (achalasia) or providing threshold opinions on that impairment.

A second chiropractor was entirely excluded from testifying due to clear bias, partisan methodology, and opining outside his area of expertise.

The defendant insurer brought a motion for particulars of the plaintiffs' statement of claim regarding a house fire contents claim, prior to delivering its statement of defence.

The court reviewed the principles governing particulars and held that where oral discovery is available, particulars are generally limited to what a party requires to respond to a pleading.

The court found that most of the plaintiffs' allegations were pleaded with sufficient particularity to allow the defendant to plead.

However, the court struck a boilerplate claim for 'further and other damages' and ordered the plaintiffs to provide particulars of their claim for 'special damages' within 30 days.

The plaintiff was driving past a baseball stadium when a baseball hit out of the park during batting practice shattered her window and struck her head.

She sued the city, the home team, and the visiting team (the Duluth Huskies).

The visiting team moved for summary judgment, arguing a visiting team cannot be liable for balls hit out of a stadium.

The court dismissed the motion as premature, noting that pleadings were not yet closed for the other defendants and that factual issues remained regarding where the players were batting from and their knowledge of gaps in the protective netting.

The defendant sought leave under s. 67(2) of the Construction Lien Act to bring a motion for security for costs against the plaintiff, a US-based corporation.

The court applied the test for security for costs and the narrower 'instability and insolvency' test for construction lien actions.

The court found that while the plaintiff lacked liquid assets in Ontario, leave should not be granted because the defendant knew of the plaintiff's non-resident status when entering the contract, and ordering security for costs was neither necessary to level the playing field nor likely to expedite the resolution of the dispute.

The motion for leave was denied.

The court issued an addendum to clarify a previous judgment following a teleconference with counsel.

The reasons were modified to specify that the replacement cost owing by the insurer is payable upon satisfactory proof that the actual cash value (ACV) funds have been expended for rebuilding or replacement.