Darla A. Wilson

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.

The plaintiff brought a motion to amend her statement of claim to substitute the names of two individuals for 'John Doe' defendants who allegedly caused her severe burns during a cosmetic laser treatment.

One of the proposed defendants opposed the motion, arguing she did not treat the plaintiff and would suffer prejudice.

The court applied the 'litigation finger' test for misnomer, finding that the statement of claim clearly pointed to the proposed defendant as the intended target.

The court rejected the proposed defendant's denial of liability as irrelevant to a misnomer motion and found no actual prejudice.

The motion to amend was granted.

The defendant brought a consent motion in writing to adjourn a trial scheduled for October 5, 2020, arising from a 2012 motor vehicle accident.

The parties sought the adjournment because they had not held a pretrial conference and claimed scheduling conflicts prevented them from attending a pretrial date offered by the court in September.

The court dismissed the motion, noting that trial dates in Toronto are only adjourned in extenuating circumstances.

The court found the motion materials deficient and held that counsel's preference to schedule a pretrial after the trial date was not a compelling reason to adjourn a trial that had been fixed for over a year.

The plaintiff requested an urgent motion to strike the defendant's jury notice, arguing that the COVID-19 pandemic would cause a multi-year delay and that jurors taking public transit might be biased against the plaintiff in a claim against the Toronto Transit Commission.

The plaintiff also argued the case was too complex for a jury.

The court declined to schedule the urgent motion, noting that civil jury trials were proceeding in Toronto with social distancing measures, eliminating the delay argument.

The court found the bias argument to be pure speculation and held that any motion to strike based on complexity should be brought before the trial judge using the 'wait and see' approach.

The plaintiffs brought a Rule 7 motion for approval of a $140,000 tort settlement for a minor who suffered a fractured femur in a motor vehicle accident.

The court approved the settlement quantum but found the proposed legal fees and disbursements excessive.

The court reduced the lawyer's fees from $30,000 to $20,000, denied a disbursement for a nurse practitioner, reduced photocopying costs, and refused to approve payment of a chiropractic account from the tort settlement without further explanation.

The plaintiff's counsel sought removal as solicitor of record, and the plaintiff sought an adjournment of a breach of contract trial due to the plaintiff's failure to provide instructions or retain new counsel.

The defendant did not oppose the adjournment.

The court vacated the existing trial date and set a new peremptory trial date, emphasizing the plaintiff's responsibility to proceed with or without counsel, given the history of delays.

This endorsement addresses prejudgment interest, post-judgment interest, and costs following a trial where the Plaintiffs were awarded US$25,000,000.00.

The court determined the appropriate prejudgment interest rate based on the Plaintiffs' actual borrowing costs, the date for currency conversion from USD to CAD, and rejected the Insurer's arguments for tax adjustments.

The Plaintiffs were awarded partial indemnity costs and disbursements.

The Goldfinger law firm, solicitor for the plaintiff, brought a motion for removal as counsel of record and for a charging order against any settlement funds.

The plaintiff, Sahar Jadgharib, opposed the motion, disputing the contingency fee agreement and seeking an assessment of the account.

The court granted the solicitor's request for removal and a charging order, directing the plaintiff to seek an assessment of the account within 30 days and ordering that any settlement funds up to the amount of the charging order be paid into court.

The firm was also ordered to provide the plaintiff with her file.

The application for court approval of a $1.1 million accident benefits settlement for a catastrophically injured person under disability was denied.

The court raised serious concerns regarding the adequacy of the proposed settlement to meet the applicant's long-term needs, the absence of a comprehensive care plan, insufficient provisions for accessible accommodation and adequate personal care, and the quantum of legal fees requested without proper documentation.

The court mandated a conference with all parties, including the Public Guardian and Trustee, to address these deficiencies and develop a suitable care plan before any settlement approval.

This endorsement arises from a case conference concerning two wrongful dismissal claims.

The plaintiff, Sonya Sekulic, sought to compel the defendant, Sunwing Airlines, to comply with an outstanding undertaking from an examination for discovery, specifically to provide contact information for two former employees (Patrick Heinke and Gordon Kenny) who were directly involved in the dismissal events.

The defendant resisted, citing professional conduct rules and the individuals' desire for privacy.

The court ruled that the unqualified undertaking must be complied with, as the individuals possessed relevant information and might be called as witnesses.

The court dismissed the defendant's arguments regarding professional conduct rules.

The defendant was ordered to provide the contact information, provide translations of documents, and pay the plaintiff costs for the undertakings motion.

This application sought judicial approval for a $1.6 million settlement of a minor's accident benefits claim following a traumatic brain injury.

The court approved the settlement quantum but expressed concerns regarding the proposed structured settlement's adequacy for the minor's future needs, requesting a comprehensive treatment plan.

Additionally, the court reduced the applicant's counsel's requested legal fees from $240,000 to $150,000 plus HST, emphasizing the mandatory disclosure of dockets, disbursements, and retainer agreements in Rule 7.08 applications, particularly when the retainer is not a contingency agreement.

Following a case conference, the judge released an endorsement.

Counsel for both the plaintiff and defendant subsequently wrote to the court to correct certain dates regarding the delivery of the trial record, the fixing of pretrial and trial dates, and the service of expert reports and affidavits of documents.

The judge issued this endorsement to correct the dates and noted that documentation relied on by the plaintiff's experts should have been produced upon request.

The defendants requested a chambers appointment to discuss outstanding defence medical assessments and the rescheduling of a pretrial conference.

The assessments were cancelled due to the COVID-19 pandemic.

The court ordered the defence experts to conduct paper reviews or virtual assessments of the plaintiff so that their opinions would be available for the upcoming virtual pretrial conference.

The court also held that if the matter proceeds to trial, the plaintiff must make themselves available for in-person assessments by those experts, limited to areas absent from their initial reports.

The plaintiffs requested a chambers appointment to establish a timetable in a negligence claim arising from a death at a long-term care facility.

The plaintiffs sought to amend their statement of claim to include punitive damages after discovering care providers allegedly falsified notes.

The court ordered a timetable for the motion to amend, production of medical records, and examinations for discovery.

This endorsement addresses a Rule 7 motion for approval of a minor's settlement that has been significantly delayed and previously rejected due to deficient materials.

The court notes multiple instances of non-compliance and orders the plaintiff's counsel to file fresh motion materials by a specified date, along with an explanation for the prolonged delays between January 2019 and April 2020.

The quantum of the proposed settlement has not changed since 2018, and the court emphasizes the need for timely resolution.

This endorsement addresses a solicitor's unacceptable conduct in circumventing court approval for a minor's settlement.

The solicitor sought to dismiss a minor's claim without payment after a previous judge refused approval due to deficiencies and explicitly stated that approval was required even after the minor attained majority.

The solicitor ignored the court's order and obtained a consent dismissal, disbursing funds without judicial oversight.

The court found this a flagrant breach of Rule 7, disrespectful to the court process, and contrary to established case law requiring court approval for settlements entered into while a party is a minor, regardless of subsequent attainment of majority.

The defendant physician brought a Rule 21 motion to strike the claims of the infant plaintiffs (triplets) for "wrongful life." The claims arose from the physician's alleged negligence in prescribing a fertility drug to the mother, leading to multiple births and premature delivery, resulting in the triplets' serious disabilities.

The court, applying established Ontario jurisprudence, found no duty of care owed by the physician to unconceived children, as the alleged negligence occurred prior to conception.

The motion was granted, and the infant plaintiffs' claims were dismissed without leave to amend.

The plaintiffs brought a medical malpractice action against several physicians following the death of a 47-year-old woman who died in hospital from an unknown cause, potentially a pulmonary embolism, acute coronary syndrome, or complications from sepsis.

The plaintiffs alleged the defendant doctors failed to diagnose and treat a pulmonary embolism with full-dose anticoagulation.

The court found that the defendant internal medicine specialists and cardiologists met the standard of care, as their differential diagnoses and treatments were reasonable given the patient's complex presentation.

The court also found the plaintiffs failed to prove causation on a balance of probabilities.

The action was dismissed.

At a case management conference, the plaintiff sought an extension of time to serve expert reports because a pediatric neurologist required an MRI to finalize her opinion, and the MRI was delayed until December 2019.

The court granted the request and amended the timetable for the service of expert reports, setting new deadlines for the plaintiff's and defendants' reports.