Darcy W. Romaine

In a motor vehicle negligence action, the court addressed whether responding parties could file additional affidavit evidence as a sur-reply in response to the moving defendants’ reply evidence on a summary judgment motion.

The request required further amendments to a timetable that had already been revised multiple times through repeated case conferences.

Applying summary judgment burden principles for rear-end collisions and procedural fairness principles governing reply and sur-reply evidence, the court held the parties had already had a fair opportunity to put their best evidentiary record forward.

Emphasizing finality and proportionality, the court refused further evidentiary expansion and directed the matter to proceed on the existing schedule.

The court dismissed a motion to strike the jury notice following closing arguments in a negligence trial arising from a motor vehicle accident.

The plaintiffs objected to 19 statements made by defence counsel in his closing address, alleging they were inflammatory, invited improper reasoning, misstated the law, and appealed to emotion.

The court found some statements objectionable but determined that corrective jury instructions were sufficient to remedy any prejudice, making discharge of the jury unnecessary.

The jury subsequently found the defendants liable in negligence, apportioning liability at 93% to one defendant and 7% to the other.

Three consolidated civil actions arose from a motor vehicle accident on April 22, 2016, near Stouffville, Ontario, involving three vehicles.

The defendant Rae argued he owed no duty of care to the plaintiffs.

The court ruled on the duty of care issue at the close of the plaintiffs' case, finding that Rae owed a duty of care to all plaintiffs as a driver to other users of the roadway.

The court applied established jurisprudence recognizing the duty of care owed by drivers to other road users and rejected Rae's arguments based on the distinction between nonfeasance and misfeasance, finding that driving is a heavily regulated activity and that the duty of care exists regardless of whether specific statutory obligations apply to the particular conduct alleged.

The applicant sought statutory accident benefits after sustaining burn injuries from a hot coffee spill in a fast-food drive-through.

The respondent denied benefits, arguing the incident did not meet the definition of an 'accident' under the Schedule because the improperly secured lid was an intervening act.

The Tribunal applied the purpose and causation tests, finding that acquiring a hot beverage at a drive-through is an ordinary use of a vehicle, and an unsecured lid is a normal incident of risk created by that use.

The Tribunal concluded the incident was an 'accident' and allowed the application to proceed to a hearing on the substantive issues.

The plaintiff was struck by an uninsured driver and sought coverage under the uninsured and underinsured provisions of an automobile insurance policy issued to his child's mother.

The insurer denied coverage, arguing the plaintiff did not meet the definition of 'spouse' as the couple had ceased living in a conjugal relationship.

The court applied a holistic approach to the definition of 'spouse' for parents of a child, finding that living under the same roof was not strictly required.

The court concluded that the parties had not formed a settled intention to end their relationship and were living in a conjugal relationship of some permanence at the time of the accident.

The plaintiff was found entitled to coverage under the policy.

The plaintiff was catastrophically injured when she lost control of her vehicle on a snow-covered and icy municipal road, crossing the centre line and colliding with an oncoming vehicle.

The plaintiff sued the municipality for failing to keep the road in a reasonable state of repair.

The Superior Court of Justice found that the municipality was in the midst of a winter weather event but failed to adequately treat the road, leaving it unplowed and subject to refreezing for several hours.

The court held that the road was in a state of non-repair, which caused the collision, and that the municipality failed to establish any statutory defences under the Municipal Act.

The plaintiff was found not to be contributorily negligent, and the municipality was held fully liable for the agreed-upon damages.

The plaintiff brought a motion to strike the jury notice in a motor vehicle accident action, arguing that civil jury trials would be unavailable for the foreseeable future due to the COVID-19 pandemic and that a jury would not represent a cross-section of the community.

The court dismissed the motion, adopting a 'wait and see' approach to allow the newly implemented Central East Region protocol for civil trials to evolve.

The court found no evidence that jury composition had deteriorated and held that striking the jury based on anticipated delay was premature.

The appellant landlord appealed a summary judgment finding it liable for injuries sustained by the respondent motorcyclist, who collided with donkeys that had escaped from the appellant's tenanted property.

The motion judge found the landlord negligent for failing to inspect or repair fences and for permitting an unlocked gate.

On appeal, the Court of Appeal upheld the liability finding, noting the landlord had admitted responsibility for the condition of the fence.

However, the Court found the motion judge erred by granting judgment without determining the issue of contributory negligence.

The appeal was allowed in part, and the issue of contributory negligence was remitted to trial along with damages.

The applicant sought statutory accident benefits following a motor vehicle accident, claiming entitlement to optometry services, prescription eyewear, and physiotherapy for a rotator cuff tear.

The Licence Appeal Tribunal denied the claims for optometry services and eyewear, finding insufficient evidence that the applicant's pre-existing vision issues were exacerbated by the accident.

However, the Tribunal granted the claim for physiotherapy, finding that the rotator cuff tear was caused by the accident and that the applicant was not required to exhaust OHIP-funded physiotherapy before seeking accident benefits.

Interest was awarded on the overdue physiotherapy benefits.

The plaintiff, Stephanie Gilbraith, suffered a severe eye injury from an egg thrown from a speeding, unidentified vehicle.

She sought coverage under her father's OPCF 44R Family Protection Coverage endorsement with Intact Insurance Company and from the Superintendent of Financial Services for uninsured automobile coverage.

Both defendants moved for summary judgment, arguing the injury did not "arise directly or indirectly from the use or operation of an automobile." The court dismissed the motions, finding that the plaintiff met both the "purpose test" (transporting passengers and cargo is an ordinary use of a vehicle) and the "modified causation test" (the vehicle's speed significantly increased the egg's impact and the likelihood of severe injury, establishing an unbroken chain of causation).

The court concluded there was a genuine issue for trial.

The appellant appealed a decision of the Licensing Appeal Tribunal.

Prior to the hearing, the parties reached a settlement.

The Divisional Court endorsed the settlement, explicitly noting that its endorsement should not be taken as approval of the Tribunal's reasoning in the case.

The defendant Redi-Mix brought a summary judgment motion to dismiss the plaintiff Youssef's claim after Youssef was seriously injured when his motorcycle struck a donkey that had escaped from Redi-Mix's rented property.

Youssef cross-sought summary judgment on liability.

The court found that Redi-Mix, as a residential landlord, was negligent in failing to maintain and inspect the fences, as required by the Residential Tenancies Act and its regulations, which allowed the donkeys to escape and cause a public nuisance.

The court dismissed Redi-Mix's motion and granted summary judgment on liability in favour of Youssef against Redi-Mix, reserving damages for trial.

The applicant was blinded in one eye when struck by an egg thrown from a passing motor vehicle.

She applied for statutory accident benefits, which the respondent insurer denied on the basis that the incident was not an 'accident' under the Statutory Accident Benefits Schedule.

The Licence Appeal Tribunal found that the incident was an assault, and the throwing of the egg was an independent and intervening act.

The use or operation of the vehicle was not the direct cause of the impairment.

The application was dismissed.

The defendants made a written request under Rule 2.1.01(6) to have the plaintiff's slip and fall action dismissed as frivolous, vexatious, or abusive.

The court reviewed the statement of claim and found nothing on its face to support such a finding.

The court declined to direct the Registrar to send a notice to the plaintiff, noting that Rule 2.1 is reserved for the clearest of cases and is not an alternative to a pleadings motion or summary judgment.

During a jury trial for a slip and fall in a commercial parking lot, the defendants tendered an expert to give opinion evidence on winter maintenance standards.

The plaintiff opposed the qualification.

Following a Mohan voir dire, the court found that the proposed expert had acquired special knowledge in winter maintenance through his post-graduate training and extensive work experience.

The court qualified the witness as an expert, noting that any deficiencies in his training compared to the plaintiff's expert went to weight rather than admissibility.

During a jury trial for a slip and fall in a parking lot, the defendants (the property owner and the winter maintenance contractor) conditionally settled their crossclaims.

The plaintiff sought disclosure of the settlement agreement.

The court ordered the agreement disclosed to the court and then to the plaintiff, finding that it altered the adversarial landscape.

Consequently, the court ruled that the defendants were no longer adverse in interest and prohibited defence counsel from asking leading questions during the cross-examination of each other's witnesses, except on narrow issues where adversity remained.

The plaintiff in a slip and fall action moved to strike the jury following the defendants' opening statements, arguing that defence counsel made improper arguments, impugned plaintiff's counsel, and injected personal opinions.

The court reviewed the impugned statements and found that while some comments crossed the line into argument and unfairly bolstered credibility, the transgressions were minimally prejudicial.

The court dismissed the motion to strike the jury, concluding that a short curative instruction would adequately address the issues without compromising the plaintiff's right to a fair trial.

In a slip and fall action arising from an incident in a grocery store parking lot, the parties raised evidentiary issues regarding the admissibility of business records before the commencement of a jury trial.

The plaintiff sought to introduce Ministry of Transportation records regarding weather and road conditions, while the defendants sought to introduce daily work sheets to establish their snow and ice clearing system.

The court found both sets of records to be logically relevant to the live issues of prevailing weather conditions and the defendants' response.

The court admitted both sets of records, noting that any potential prejudice from the MTO records could be addressed with a limiting instruction to the jury.

Following a summary judgment motion determined in favour of the third parties, the plaintiff sought costs of $2,815.00 from the defendant for preparation and attendance.

The court found that the plaintiff's counsel provided no satisfactory explanation for late service of materials and failed to comply with the agreed timetable.

Consequently, the court awarded reduced costs to the plaintiff, fixed at $763.00 on a partial indemnity scale, covering only the estimated time for attending the motion.

The Third Parties moved for summary judgment to dismiss claims against them arising from a motor vehicle accident.

The Defendant, Samra, brought a cross-motion to amend her Third Party Claim to allege the Plaintiff, Juneja, was the driver.

The court found no genuine issue for trial regarding the Third Parties' liability, concluding Samra was solely responsible for a precipitous left turn.

The summary judgment motion was granted, dismissing the Third Party Claim, and Samra's cross-motion was dismissed as moot.