Darla A. Wilson

In a medical negligence action arising from alleged delayed diagnosis of a postoperative complication leading to catastrophic injuries, the defendant physicians brought a motion seeking permission for one defendant physician to testify at trial by videoconference.

The physician was on maternity leave in another province and argued that attending in person would cause expense and inconvenience.

The court considered Rule 1.08 of the Rules of Civil Procedure and the efficiency principles articulated in Hryniak v. Mauldin.

The court held that the request was inappropriate because the proposed witness was a party defendant whose credibility and conduct were in issue, and the plaintiff had a fundamental right to have the parties attend court for trial.

The inconvenience to the defendant did not constitute sufficient hardship to override due process considerations.

The plaintiffs commenced a medical negligence action alleging improper treatment at a hospital that preceded a stroke suffered by the main plaintiff.

The plaintiffs later sought court approval under Rule 7 to dismiss the action, including the claim of a minor plaintiff, asserting that they were unwilling to fund a necessary neurological expert opinion on causation.

The court scrutinized the request due to the involvement of a minor and the absence of sufficient evidence addressing the merits of the claim.

The judge emphasized that counsel undertaking professional negligence cases on a contingency fee basis must anticipate the risk of funding necessary expert evidence.

Although the court initially refused approval and sought further information, the prolonged inactivity and the plaintiff’s inability to fund expert evidence ultimately justified dismissal of the claim without costs.

The plaintiff corporation sued its former solicitor in negligence, alleging he was in a conflict of interest and breached his fiduciary duty while acting for both sides in a joint venture and subsequent purchase and sale agreement for an apartment building conversion.

The plaintiff claimed the solicitor failed to advise them of their options when purchasers resiled from agreements and failed to disclose a vendor take back mortgage provided to another party.

The court dismissed the action, finding that while the solicitor breached the Rules of Professional Conduct by failing to obtain written consent for the joint retainer, his conduct did not fall below the standard of care of a reasonably competent solicitor.

The court also found no breach of fiduciary duty, as the undisclosed information was not material, and concluded the plaintiff failed to establish causation or damages.

The plaintiff sued his former family lawyer for professional negligence arising from the drafting of a marriage contract.

He alleged the solicitor failed to advise him about a potential 'downside' or catastrophic change clause that would have protected him if his wealth declined during the marriage.

After the marriage ended, the contract was enforced and the plaintiff paid substantial sums to his spouse, which he claimed constituted damages caused by negligent legal advice.

The court found the solicitor had adequately explained the operation of the Family Law Act and equalization and met the standard of care of a reasonably competent solicitor.

The court also held that even if negligence had been established, the plaintiff failed to prove causation or damages, including claims relating to lost investment opportunities.

The plaintiff sought damages after a fall from an apartment building fire escape, alleging breach of the Occupiers’ Liability Act and the Fire Code due to accumulated snow and ice.

The court held that fire escapes must be kept safe for emergency use and that the occupier’s duty was not negated merely because tenants used the area for smoking, but found the defendants had a reasonable winter maintenance system in place.

The plaintiff failed to prove on a balance of probabilities that ice on the fire escape caused the fall, particularly given credibility problems, inconsistent accounts of the accident, and photographic and witness evidence inconsistent with the alleged icy condition.

The action was dismissed.

The court nevertheless assessed hypothetical damages totalling substantial non-pecuniary, loss of competitive advantage, future care, and OHIP subrogated amounts.

The moving defendants brought a motion to dismiss the plaintiff's action for delay.

The action, commenced in 1998, alleged a fraudulent conveyance of property in Venezuela.

Over 16 years, the plaintiff failed to answer undertakings, delayed serving expert reports, and failed to set the matter down for trial in a timely manner.

During this time, two key defendants died and another suffered serious health issues.

The court found the delay to be inordinate and inexcusable, and that the defendants suffered actual prejudice.

The motion was granted and the action was dismissed against the moving defendants.

The applicant brought a motion seeking an order compelling the respondent to deliver a sworn Form 13.1 Financial Statement and additional financial disclosure requested by the applicant’s expert.

The underlying application sought to set aside a separation agreement on the basis of duress and inadequate financial disclosure, while the respondent had brought a pending motion for summary judgment.

The court held that the Family Law Rules impose a mandatory obligation to provide a sworn financial statement and full and frank disclosure.

Given the complexity of the respondent’s corporate interests and the dispute over the adequacy of disclosure at the time the agreement was executed, further disclosure was necessary.

The respondent was ordered to deliver a properly executed financial statement and produce the requested corporate and financial records.

The plaintiff bank brought a motion for summary judgment to recover debts owing under two business lines of credit issued to corporate defendants operating tanning businesses.

The individual defendants, who were officers and directors of the corporations, had signed personal guarantees but argued they were not personally liable because they did not read the documents, were not advised to obtain independent legal advice, and believed the debt related to a successor corporation was discharged.

The court applied the summary judgment framework from the Supreme Court of Canada and found no genuine issue requiring a trial.

The documentary evidence confirmed the existence of continuing guarantees covering present and future debts, including after corporate name changes.

The court rejected the defendants’ credibility and legal arguments and held them personally liable under the guarantees.

During a personal injury trial arising from a fall from an apartment building fire escape, the plaintiff sought to have a neuro‑psychiatrist provide an opinion on the mechanism of the head injury and introduce an animated demonstrative video illustrating a coup‑contrecoup brain injury.

The court ruled that the late‑served expert report failed to comply with Rule 53.03 of the Rules of Civil Procedure and would prejudice the defence if admitted during trial.

The court also held that, although the witness was qualified in neuro‑psychiatry, he was not properly qualified to opine on the mechanism of the accident, which was a liability issue better addressed by engineering experts.

The proposed demonstrative video was excluded because it was hypothetical and not grounded in evidence adduced at trial.

The expert was limited to giving evidence within the scope of his earlier reports concerning the plaintiff’s neuro‑psychiatric injuries.

Following a trial concerning the validity of a will and an alleged breach of trust, the court had previously upheld the validity of the will but found one defendant liable for $140,000 in damages for breach of trust.

The successful plaintiffs sought costs on a full indemnity basis, arguing their overall success and the conduct of the defendant justified such an award.

The defendant conceded liability for costs but argued they should be assessed on a partial indemnity basis, relying in part on an earlier settlement offer and the plaintiffs’ lack of success on the will challenge.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court held that costs should follow the event but declined to award full indemnity.

The court fixed costs on a partial indemnity basis at $50,000 in fees plus taxes and $5,829.88 in disbursements, payable personally by the defendant rather than the estate.

Following a successful wrongful dismissal trial in which the plaintiff recovered damages exceeding a pre-trial offer to settle, the court was asked to determine costs.

The plaintiff sought partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter pursuant to the Rules of Civil Procedure.

The defendant conceded the entitlement but challenged the hourly rates, time spent on trial preparation, and certain disbursements including a computer research charge.

Applying the discretionary principles governing costs and the guidance in Boucher v. Public Accountants Council for the Province of Ontario, the court adjusted the partial indemnity hourly rate but accepted the hours claimed and the disbursements.

The court fixed total costs, including taxes and disbursements, as fair and reasonable in the circumstances.

The plaintiffs challenged the validity of their grandmother's 2004 will and the transfer of her home into joint tenancy with her daughter, the defendant.

The court found that the deceased had testamentary capacity and intended to gift the house to the defendant, rebutting the presumption of a resulting trust.

However, the gift was conditional on the defendant paying $70,000 to each of the plaintiffs.

The court held that the defendant breached her trust obligations by failing to pay the legacies and instead spending the funds for her own benefit.

The defendant was ordered to pay $140,000 to the plaintiffs.

A 14-year-old applicant commenced an application for child support against her alleged biological father, seeking private school tuition.

The respondent relied on a 1999 agreement with the applicant's mother settling child support on a final basis.

The parties brought multiple interim motions.

The court ordered that the parties be referred to by initials to protect the respondent's children, required the applicant to appoint a litigation guardian, and ordered the applicant and her mother to attend for questioning.

The court dismissed the applicant's motions for interim disbursements, temporary child support, and summary judgment, finding no immediate need for support and that the enforceability of the 1999 agreement was a genuine issue for trial.

The plaintiff, a 26-year employee, sued his former employer for constructive dismissal after he was removed from his long-standing position as a dock supervisor and offered a newly created, lesser role as a freight analyst.

The employer alleged performance issues, which the court found were unsubstantiated and part of a targeted effort to find fault.

The court held that the unilateral change in duties constituted a fundamental breach of the employment contract, amounting to constructive dismissal.

The court further found that the plaintiff was not required to mitigate his damages by accepting the demeaning new position in a toxic work environment.

The plaintiff was awarded 18 months' reasonable notice, but his claim for moral damages was dismissed.

The applicant brought a motion under Rule 49.09 of the Rules of Civil Procedure seeking judgment enforcing a settlement agreement allegedly reached through email correspondence.

The respondents argued the purported settlement was conditional upon financial documentation substantiating specific “inflows and outflows” related to investments in a failed business venture and that the documentation provided did not support those representations.

The court held that the moving party bears a heavy burden on a Rule 49.09 motion and that the motion should be approached similarly to summary judgment, requiring the absence of genuine issues for trial.

Given conflicting affidavit evidence, disputed financial records, and credibility issues regarding losses, inventory values, and completeness of production, the court concluded that a full appreciation of the evidence required a trial.

The court therefore declined to enforce the alleged settlement.

The applicant property management company collected rent on behalf of landlords and deposited the funds into trust accounts.

After the applicant accrued tax arrears, the respondent issued requirements to pay and garnished funds from the applicant’s bank accounts.

The applicant sought declarations in the Superior Court that the seized funds belonged to the landlords, that the respondent could not seize them, and an order requiring the return of the funds.

The court held that the substance of the relief sought amounted to injunctive relief against a federal board exercising statutory tax‑collection powers.

Under s. 18 of the Federal Court Act, such remedies fall within the exclusive jurisdiction of the Federal Court.

The Superior Court therefore lacked jurisdiction to grant the requested orders.

Following a jury trial in a motor vehicle personal injury action, the plaintiffs moved for an order staying the determination of costs pending satisfaction of the judgment or resolution of a separate insurance coverage dispute involving the liable defendant and his insurer.

The plaintiffs argued that costs should be deferred because the verdict was under appeal and because the defendant’s ability to pay costs was uncertain pending determination of coverage, particularly given their intention to seek a Sanderson costs order.

The court held that the existence of an appeal or unresolved insurance coverage litigation does not justify departing from the usual practice of fixing costs after trial.

The ability to pay costs is only one factor in determining whether a Sanderson order is appropriate and does not require postponement of the costs determination.

The motion for a stay of the costs determination was dismissed.

The moving law firm sought approval of a contingency fee agreement and settlement involving a catastrophically injured plaintiff represented by a litigation guardian.

The court was required to determine the reasonableness of the contingency fee agreement under s. 24 of the Solicitors Act following direction from the Court of Appeal that fairness and reasonableness be assessed separately.

Considering the complexity of the liability issues, the catastrophic damages, the litigation risk including potential contributory negligence, and the substantial work performed, the court held the 25% contingency fee reasonable.

The court emphasized that the assessment of contingency fees focuses on recovery achieved rather than docketed time alone.

The contingency fee agreement and proposed legal fees were approved.

The applicant, previously declared a vexatious litigant under s. 140 of the Courts of Justice Act, sought leave to proceed with an appeal from a jury verdict in a negligence action arising from a fire investigation and also sought rescission of the vexatious litigant orders.

The court reviewed the extensive litigation history and repeated unsuccessful attempts by the applicant to obtain similar relief before multiple judges.

The court held that leave could not be granted because the appeal had already been dismissed for delay and the materials disclosed no reasonable grounds to proceed.

The court further found no basis to rescind the vexatious litigant orders, noting the applicant’s continued pattern of relitigating decided matters and failing to comply with costs orders.

The application was dismissed and costs were awarded to the respondents.

The plaintiff brought a motion to amend his amended Statement of Claim to add additional defendants, including all trustees or former trustees of a First Nation trust, the trust itself, and the Band Council.

The underlying action alleged breach of fiduciary duty, improper exercise of discretion, and conflict of interest arising from the denial of trust funding for the plaintiff’s business proposal.

The court held that the proposed amendments largely consisted of evidentiary material, repetitive or irrelevant allegations, and claims against entities not capable of being sued.

The court also found that the limitation period had expired for adding additional parties and that permitting the amendments would cause prejudice and further delay a long‑standing action already set down for trial.

The motion to amend was dismissed.