David Francis MacDonald

The plaintiff sued a fitness instructor and gym for injuries sustained when an air-filled medicine ball bounced and hit her in the chin during a 'slam ball' exercise.

The plaintiff alleged the instructor was negligent for providing a bouncing ball without proper instruction or warning.

The court found that the instructor met the standard of care, having provided adequate verbal and visual instructions, and that using an air-filled ball was consistent with industry standards.

The action was dismissed, with the court concluding the plaintiff was the author of her own misfortune.

The parties were unable to agree on costs following a motion where the plaintiffs were granted leave to amend their statement of claim to increase damages and ordered the defendant to answer undertakings, but the balance of the motion was dismissed.

The court found that the defendant was the overall successful party as the plaintiffs were unsuccessful on the most contentious issues.

Taking into account the divided success and the late stage at which the motion was brought, the court awarded the defendant costs of $8,000 on a partial indemnity basis.

The plaintiffs sought an adjournment of a fixed 32-day jury trial, scheduled to commence on May 16, 2022, due to their intention to appeal a prior order that dismissed their request to add a punitive damages claim and denied leave for a further affidavit of documents.

The court denied the adjournment, emphasizing that the action, stemming from a 2014 incident, had been set down for trial twice and counsel had previously certified readiness.

The judge found no extenuating circumstances to justify adjourning a long-booked trial, noting the plaintiffs' delay in seeking amendments and pursuing an appeal.

The plaintiffs brought a motion seeking various forms of interlocutory relief, including compelling discovery, amending their statement of claim to increase damages and add punitive damages, and abridging time for an expert report.

The court granted leave to increase compensatory damages from $4 million to $7 million and ordered the defendant to answer two specific undertakings.

However, the court denied leave for a further affidavit of documents and for adding a punitive damages claim, citing significant delay and presumed prejudice.

The request to abridge time for an expert report was deferred to the trial judge.

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.

The plaintiff, Anupam Dhar, was awarded damages of $365,000 after a motor vehicle accident trial.

This decision addresses the costs.

Dhar sought partial indemnity costs up to his Rule 49 offer ($350,000) and substantial indemnity costs thereafter, as the judgment was more favourable.

The defendants, McGuinness, argued against Rule 49 consequences due to the complex liability apportionment (10% McGuinness, 90% unidentified motorist, but McGuinness 100% liable to Dhar due to insurance regulation).

The court found Dhar entitled to costs, applying Rule 49 consequences, but reduced the quantum of fees due to excessive time spent by plaintiff's counsel.

The plaintiffs and defendant settled a motor vehicle accident claim for $732,835 just prior to trial, leaving costs to be determined by the court.

The plaintiffs sought partial indemnity costs of approximately $572,000, while the defendant proposed approximately $394,000.

The court noted that liability was clear from the outset, yet the defendant failed to admit liability and delayed making an offer to settle until two weeks before trial, unnecessarily increasing the plaintiffs' costs.

After adjusting for excessive hourly rates for students/clerks and some excessive preparation time, the court fixed the plaintiffs' partial indemnity costs at $310,000 plus HST for fees and $160,000 inclusive of HST for disbursements.

The defendants, William and Mary Wade, sought an extension of time to bring a motion for summary judgment to dismiss the action against them, alleging that trees on their property obstructed visibility at an intersection where a serious motor vehicle collision occurred.

The plaintiffs, the Greens, opposed the extension.

The court dismissed the Wades' motion, finding substantial delay without satisfactory explanation, significant prejudice to the plaintiffs, and a risk of inconsistent factual findings if the summary judgment motion proceeded.

The court emphasized that the novel legal question of a private property owner's duty of care to motorists on adjacent roadways is best determined at a full trial, aligning with principles of proportionality, timeliness, and affordability.

The defendant sought leave to appeal an order dismissing his motion for summary judgment in a personal injury action arising from a motor vehicle accident.

The motions judge had declined to grant partial summary judgment or hold a mini-trial, finding that the defendant's role could not be severed from the continuing narrative of the accident without risking inconsistent findings of fact.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's application of the Hryniak framework and no issue of general importance warranting an appeal.

The appellants appealed a decision regarding whether a leasing company's insurer is protected by the $1 million liability cap under s. 267.12 of the Insurance Act for bodily injury or death arising from the use of a leased motor vehicle.

The Court of Appeal agreed with the application judge that s. 267.12 precludes a lessee from coverage under a lessor's insurance policy beyond the qualified $1 million cap.

The appeal was dismissed.

The applicants sought a determination of whether a lessee of a leased vehicle could access the lessor’s insurance coverage beyond the statutory $1 million cap under s. 267.12 of the Insurance Act following a motor vehicle accident.

They argued that a legislative gap existed between the 2006 amendments to the Insurance Act limiting lessor liability and the later approval of the OEF 110 endorsement restricting coverage for lessees, allowing lessees to access the lessor’s insurance as unnamed insureds during the interim.

The court rejected this argument, holding that s. 267.12 must be interpreted in light of the legislative purpose of protecting lessors and their insurers by capping exposure.

Interpreting the statute to permit lessees to access excess or umbrella policies would undermine the legislative scheme.

The court further held that the excess and umbrella policies at issue did not provide coverage to the lessee based on their wording and the fact that the lessor was not a named insured under the relevant policies.

The application was dismissed.

Following a 21‑day personal injury trial concerning municipal liability for road conditions and signage, the successful plaintiffs sought partial indemnity costs exceeding $1,045,000.

The court considered the complexity of the litigation, the extensive expert evidence, and the reasonableness of the fees and disbursements claimed.

Applying the principle that costs must be fair and reasonable for the unsuccessful party to pay rather than fully reflective of the successful party’s expenditures, the court concluded that the amounts claimed exceeded reasonable expectations.

Significant reductions were made to both fees and disbursements.

Costs were fixed at $406,000 in fees and $200,000 in disbursements, plus applicable taxes.

The plaintiffs brought a negligence action against a municipality arising from a single‑vehicle collision on a rural road curve that caused catastrophic injuries to a young driver.

The court considered whether the municipality breached its duty under s. 44 of the Municipal Act to keep the roadway in a reasonable state of repair, focusing primarily on inadequate warning signage and the absence of an advisory speed sign for a sharp curve.

Expert evidence established that proper signage, including a 40 km/h advisory speed tab and additional warning devices required by the Ontario Traffic Manual, should have been installed.

The municipality had not conducted any evaluation of the signage following amalgamation and allowed substandard signage to remain in place for years.

The court found the municipality liable for failing to maintain the road in a reasonable state of repair, but also held the driver contributorily negligent for failing to sufficiently reduce speed in snowy conditions.

The appellants appealed a trial judge's finding that the appellant driver was partially liable in negligence for a motor vehicle accident.

The trial judge found that the appellant driver failed to slow his vehicle sufficiently after observing the respondents' vehicle enter his lane under icy conditions, which increased the speed of impact.

The Court of Appeal dismissed the appeal, holding that the trial judge's finding was supported by the evidence, as the appellant had put his foot back on the accelerator instead of continuing to slow down.