Ciaran Michael Joseph Kealy

The defendant Dufferin Aggregates appealed Associate Justice McGraw’s decision extending the time for the plaintiffs, Uzelac and G. Uzelac Trucking, to set the action down for trial.

The court reviewed the history of the litigation, including periods of delay, and considered whether the plaintiffs had provided an acceptable explanation for the delay and whether the defendants would suffer non-compensable prejudice.

The court found that Associate Justice McGraw had properly exercised his discretion, applied the correct legal test, and made no palpable and overriding errors of fact.

The appeal was dismissed, and costs were awarded to Uzelac.

The plaintiffs, Vincent and Rosemary Tookenay, brought a motion to extend the time for service of their statement of claim in a medical malpractice action against the Estate of Dr. Michael O’Mahony and others, and to validate irregular service.

The statement of claim was issued in April 2021 but not properly served until January 2023, well beyond the six-month deadline.

The plaintiffs attributed the delay to a "miscommunication" within their lawyers' office.

The defendant Estate opposed the motion, arguing significant and uncompensable prejudice due to the unavailability of two key witnesses: Dr. O’Mahony, who suffered severe cognitive decline and later passed away, and nurse practitioner Melissa Georgiou, who died of cancer.

The court dismissed the plaintiffs' motion, finding an unexplained one-month delay after the plaintiffs' lawyers realized the claim had not been served, and actual prejudice to the defendant Estate due to the loss of crucial witness testimony.

The Plaintiffs brought a motion to correct the name of a defendant from Ali Al-Shammari to Enad Al-Shammari and to add West-Way Taxi Nepean Ltd. as an additional defendant.

The Defendants consented to the name correction but opposed adding West-Way.

The Defendants also brought a cross-motion to compel the Plaintiffs to specify the amount of damages claimed in their Statement of Claim.

The court granted the Plaintiffs' motion, finding that the discoverability principle applied to the addition of West-Way, and dismissed the Defendants' cross-motion, ruling that the Plaintiffs were not yet obligated to particularize damages at the pleadings stage given the early stage of the proceedings.

The appellants appealed a summary judgment dismissing their negligence claim arising from a personal injury sustained during a fitness class at the respondent's facility.

The plaintiff stepped on a round dumbbell and fell.

The motion judge found that the respondents were not negligent, that the round dumbbell did not pose an unusual hazard, and that the risk of a round dumbbell rolling was obvious.

The motion judge also rejected the appellants' argument regarding a duty to warn.

The Court of Appeal upheld the summary judgment and dismissed the appeal.

The applicant insurer appealed an arbitrator’s decision interpreting the phrase “gross vehicle weight” in Ontario Regulation 664 under the Insurance Act for purposes of the statutory accident benefits loss transfer scheme.

The arbitrator held that “gross vehicle weight” referred to the manufacturer’s capacity weight of the vehicle rather than its actual weight at the time of the accident.

The court reviewed the interpretation on a correctness standard and examined statutory context and prior authority, including Royal Insurance Co. v. Wawanesa Mutual Insurance Co. The court concluded that the term refers to the actual combined weight of the vehicle and load rather than the vehicle’s rated capacity.

The arbitrator erred in law by failing to follow binding authority and by adopting the capacity-weight approach.