Ciaran Michael Joseph Kealy

The plaintiffs brought a motion for a status hearing to prevent the dismissal of their action for delay under Rule 48.14.

The action arose from a failed real estate transaction where the defendant failed to close.

The court found that the plaintiffs had provided an acceptable explanation for the delay, citing the primary plaintiff's intense duties as a frontline medical worker during the COVID-19 pandemic and family issues.

The court also found that any prejudice to the defendant due to fading memories or lost documents was self-created by his own failure to take steps to move the action forward.

The motion was granted, the action was allowed to proceed, and the plaintiffs were awarded partial indemnity costs.

The appellants commenced an action in 2017 for negligent investigation and malicious prosecution.

After years of delay and failure to comply with a timetable order, the motion judge dismissed the action for delay in 2025.

On appeal, the appellants argued the motion judge erred in finding the delay was intentional and in failing to specifically find prejudice.

The Court of Appeal dismissed the appeal, holding that the motion judge's finding of intentional delay was supported by the record and that inordinate delay can itself be prejudicial, with the burden on the appellants to disprove prejudice.

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 moving parties brought a motion for leave to appeal the decision of Justice Chalmers dated November 5, 2024.

The Divisional Court dismissed the motion for leave to appeal and ordered costs payable to the responding party in the amount of $5,593.50.

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 restore their personal injury action to the trial list after it was struck off due to the inaction of their former lawyer, who was subsequently suspended by the Law Society.

The defendants brought a cross-motion to dismiss the action for delay.

The court found that the plaintiffs had an acceptable explanation for the delay, as they had constantly inquired about the status of their file and were failed by their former lawyer.

The court also found no non-compensable prejudice to the defendants, as liability had been admitted and relevant evidence preserved.

The plaintiffs' motion was granted and the defendants' cross-motion was dismissed.

The moving parties, Hyundai Motor Company and Hyundai Auto Canada Corp., sought leave to appeal the order of Barnes J. dated June 10, 2022.

The Divisional Court dismissed the motions for leave to appeal.

Costs of $4,000 were awarded against each moving party, payable to the respondent within 30 days.

The moving party brought a motion for leave to appeal an order dated November 2, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondent in the amount of $3,261.18.

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 moving party, BMW Canada Inc., brought a motion for leave to appeal an order made by a single judge of the Divisional Court who had determined an appeal from the Small Claims Court.

The Divisional Court dismissed the motion for want of jurisdiction, noting that under the Courts of Justice Act, leave to appeal such an order must be sought from the Court of Appeal.

No costs were awarded as neither party raised the jurisdictional issue.

The plaintiff was previously successful on a motion to restore her action to the trial list.

In these supplementary reasons on costs, both parties sought costs of the motion.

The Master found that the plaintiff was not entitled to costs because she had received an indulgence after waiting many months to bring the motion, and the defendants reasonably opposed it given the history of administrative dismissals.

However, the Master also declined to award costs to the unsuccessful defendants, noting that the plaintiff had satisfied the factors of delay and prejudice without deliberate misconduct.

Ultimately, no costs were awarded to either party.

The plaintiff brought a motion to restore her personal injury action to the trial list after it was struck for failure to file a trial certification form.

The court found that the plaintiff provided an acceptable explanation for the delay, which included a change of counsel and the defendants' failure to respond to the certification form.

The court also found no non-compensable prejudice to the defendants, as the action was largely ready for trial and the defendants had fully investigated the claim.

The motion was granted and the action was restored to the trial list.

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 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 plaintiff brought a motion to amend his statement of claim against his insurer regarding property damage.

The defendant insurer opposed, arguing the amendments raised a new cause of action and would cause prejudice because it had already settled a subrogated claim related to the damage.

The court granted the motion, finding the amendments did not plead a new cause of action and any prejudice was due to the defendant's own actions in settling the subrogated claim without the plaintiff's input.

The order was made without prejudice to the defendant raising a limitations argument at trial.

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.

The moving party sought leave to appeal a prior order certifying a class proceeding under the Class Proceedings Act.

It argued that the certification judge erred in finding the pleadings disclosed a cause of action and in determining that common issues existed, particularly regarding an alleged duty of a custodial trustee to warn investors about an investment scheme.

The court held that the certification judge properly applied the test under the Class Proceedings Act and that it was not plain and obvious the claim had no chance of success.

The alleged “super-added duty” was properly characterized as part of the broader tort duty of care that could arise depending on factual findings at trial.

The court also rejected arguments that the certification process or authorities relied upon created conflicting jurisprudence warranting appellate review.

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.