Darla A. Wilson

The proposed intervenor, Shoal Lake #40 First Nation, brought a motion for leave to intervene as an added party or friend of the court in an action for damages brought by Iskatewizaagegan No. 39 Independent First Nation against the City of Winnipeg and the Province of Ontario.

The underlying action sought compensation for the taking of water from Shoal Lake pursuant to a 1913 Order in Council.

The court dismissed the motion, finding that the proposed intervenor had no direct interest in the plaintiff's specific claim for damages, that its participation would cause delay, and that it was free to commence its own action for compensation.

The parties attended a case conference to schedule a 40-day trial for a construction dispute commenced in 2015.

The court noted that there were ongoing interlocutory motions regarding productions and pleadings, and no expert reports had been delivered.

The court declined to fix a trial date, holding that an action with ongoing interlocutory matters is not ready for trial, and directed the parties to return to trial scheduling court once the outstanding matters and expert reports are completed.

The defendants brought a motion to transfer a personal injury action from Barrie to Toronto.

The plaintiff opposed the motion, arguing it was brought late and for tactical reasons.

The court dismissed the motion, noting that the defendants failed to raise the issue until after the pretrial conference and that transferring the action to Toronto would result in significant delay in securing a trial date.

The plaintiffs brought a motion under Rule 7 for approval of a proposed settlement involving claims of parties under disability.

The underlying action was a medical negligence claim against doctors and nurses involved in the care of the deceased.

The proposed settlement sought to dismiss the action without costs.

The court dismissed the motion, finding the supporting materials deficient as they lacked an affidavit from the litigation guardian and failed to adequately explain why liability could not be proven or why no expert opinion was obtained.

The applicant, a party under disability who suffered catastrophic injuries in a motor vehicle accident, sought court approval of a $900,000 settlement for statutory accident benefits.

The court approved the settlement quantum as reasonable and in the applicant's best interests.

However, the court declined to approve the proposed distribution, which included a structured settlement and payments to a former solicitor and a litigation loan company, citing a lack of updated medical evidence and concerns over the loan and former solicitor's actions.

The matter was referred to the Public Guardian and Trustee for a report and recommendations.

The defendants' counsel brought a motion to be removed from the record shortly before a scheduled wrongful dismissal trial.

The plaintiff opposed any adjournment of the trial date but did not oppose the removal of counsel.

The court granted the motion to remove counsel due to a breakdown in the relationship and lack of instructions following a corporate acquisition.

However, the court refused to adjourn the trial date, finding that the corporate defendant had ignored the approaching trial and that an adjournment would unfairly prejudice the plaintiff.

The plaintiff set the action down for trial and counsel attended trial scheduling court to fix a date.

The judge convened a case conference and determined that the action, commenced in 2014 regarding a construction dispute, was not ready for trial.

Interlocutory steps including undertakings, potential refusal motions, and expert reports were incomplete, and a companion action had sat dormant.

The judge struck the action from the trial list, directing counsel to return only when the matter is truly ready for trial.

The defendants brought a motion to transfer the action from Ottawa to Toronto.

The plaintiff, a corporation providing electricity bill consultation services, commenced the action in Ottawa for unpaid invoices.

The defendants argued that none of the parties reside in Ottawa, the agreement was executed in Toronto, and the witnesses are in Toronto or the Greater Toronto Area.

The court found that the only connection to Ottawa was the plaintiff's solicitor's office.

The court granted the motion, holding that the defendants discharged their onus to demonstrate that a transfer to Toronto was reasonable and in the interests of justice.

Plaintiffs' counsel brought a motion seeking court approval of a contingency fee agreement executed by the plaintiff in a complex medical negligence action.

The plaintiff opposed the motion, arguing the fees were excessive and expressing dissatisfaction with the $1,625,000 settlement.

The court applied the two-step test to determine if the agreement was fair and reasonable.

Finding that the case was highly complex, risky, and that counsel had assumed significant financial risk including paying prior counsel's fees, the court approved the contingency fee agreement.

The defendants in a personal injury action arising from a slip and fall requested a chambers appointment to amend a timetable and compel the plaintiff to attend independent medical examinations with a neurologist and a physiatrist in Toronto and Mississauga.

The plaintiff, who resides in Kitchener, objected to the locations and raised concerns about COVID-19 waivers and transportation.

The court found the plaintiff's objections unreasonable, noting the action was commenced in Toronto.

The court ordered the plaintiff to attend the scheduled assessments and amended the timetable for the delivery of expert reports.

The parties made a consent request to adjourn the pretrial and fixed trial dates in a solicitor's negligence action.

The request was based on a recent order allowing the defendants to amend their Statement of Defence.

The court noted that the plaintiff had failed to serve an expert report on the standard of care despite the passage of eight years and a consent timetable.

The court dismissed the request, holding that fixed trial dates in Toronto are only adjourned in exceptional circumstances and that breaching timetabling orders does not justify an adjournment.

The defendant brought a motion to transfer the action from Ottawa to Toronto, alleging an apprehension of institutional bias among the judiciary in Ottawa.

The defendant relied on an affidavit referencing a separate action involving a related company, which had resulted in adverse outcomes.

The court dismissed the motion, finding no evidence of bias, no connection to Toronto, and noting that the contract was executed and performed in Ottawa.

The motion was deemed ill-conceived and costs were awarded to the plaintiff.

The plaintiff brought a motion to strike the jury notice in a personal injury action arising from a motor vehicle accident, citing trial delays caused by the COVID-19 pandemic.

The plaintiff also sought an Order to Continue following the death of one of the defendants.

The court granted the Order to Continue but dismissed the motion to strike the jury notice, finding that the delay was partially attributable to the parties and that the anticipated delay in Toronto was not sufficient to deprive the defendants of their substantive right to a jury trial.

This endorsement addresses the jurisdiction of a judge in a civil settlement conference to order the transfer of a file from the civil division to the family division of the Ontario Superior Court of Justice.

The applicant had initiated a civil application for partition and sale of a jointly owned home, despite unresolved family law issues.

The respondent sought to transfer the matter to family court.

The court found that the application was in the wrong forum, constituting "forum shopping" and splitting issues.

Citing Rules of Civil Procedure 50.13 and relevant case law, the judge confirmed the power to make procedural orders, including transfers, at a case conference without a formal motion, provided informal notice is given.

The matter was transferred to the family division, and a family settlement conference was ordered.

The applicant's counsel's aggressive objection and the applicant's inadequate attendance were noted.

The court approved the settlement of a tort claim for a disabled plaintiff, Matus Conka, for $950,000.00 plus costs and disbursements.

The primary focus of the endorsement was to determine the reasonableness of the contingency fee agreement between the plaintiffs and their counsel.

Applying the principles from Henricks-Hunter, the court assessed the fairness of the agreement and the reasonableness of the fees, considering factors such as time expended, complexity, results achieved, and risk assumed.

While the solicitor sought 25% of the settlement, the court reduced the approved fees, allowing a premium of $50,000 plus HST over the docketed time, balancing fairness to the plaintiff and the solicitor.

This decision concerns a Rule 7 motion for court approval of a proposed settlement for an infant plaintiff who sustained a traumatic brain injury in a motor vehicle collision.

The court approved the settlement quantum of $1,485,000 but significantly reduced the solicitor's contingency fee from the requested 30% to 20% of the net settlement.

The judge found the 30% fee unreasonable and excessive, citing the low-risk nature of the case, the certainty of recovery, and concerns regarding counsel's conduct, including delays and initial deficiencies in motion materials.

The court also directed further steps for structuring the settlement funds and initiating a guardianship of property application.

The City of Toronto, as Third Party, brought a motion to amend its Statement of Defence to the Third Party Claim to plead two statutory defences under the City of Toronto Act, 2006: failure to provide written notice (s. 42(6)) and that damages were caused by an object on an untraveled portion of the highway (s. 42(4)).

The Defendants opposed the motion, arguing presumed prejudice due to the late stage of the proceedings and that the proposed defences lacked merit.

The court, acting as case manager and trial judge, granted the motion, finding no actual or presumed prejudice and reiterating that the test for allowing an amendment to pleadings is not whether the defence will ultimately succeed at trial.

This endorsement addresses the determination of reasonable legal fees for counsel representing a person under disability in an accident benefits claim.

The court had previously approved a global settlement of $1.3 million for the catastrophically injured applicant, Robert Jones, after initially declining a lower proposed settlement due to concerns about its adequacy and the absence of a proper management plan.

The primary issue in this endorsement was the reasonableness of the applicant's counsel's proposed contingency fee of 23% (or 26.57% by the court's calculation) of the settlement.

Applying the principles from Henricks-Hunter, the court found the contingency agreement was not fair when made and the proposed fees were not reasonable, considering the minimal risk assumed by counsel due to the undeniable catastrophic injuries, and the fact that the settlement achieved was at the low end of entitlement.

The parties sought a consent adjournment of a fixed trial date in a 19-year-old breach of contract action.

The parties had repeatedly failed to comply with court-ordered timetables for discoveries and expert reports.

The court expressed dismay at the inordinate delay and multiple breaches of court orders.

Although reluctant, the court granted the adjournment because the case was not ready for trial without expert reports, but set a peremptory trial date and a strict timetable for the remaining steps.

The defendants appealed a motion judge's decision to strike their jury notices in two related motor vehicle accident actions.

The motion judge had struck the jury notices solely due to anticipated delays caused by the Covid-19 pandemic, without relying on specific evidence regarding the length of the delay or its impact on the parties or the administration of justice.

The Divisional Court allowed the appeal, finding that while delay and the pandemic's impact on the administration of justice are valid considerations, striking a jury notice based on a general assertion of delay without specific, localized evidence is arbitrary.

The appeal was granted without prejudice to the plaintiffs renewing the motion with proper evidence.