David Visschedyk

The applicant sought accident benefits following a motor vehicle accident.

The respondent held the applicant within the Minor Injury Guideline (MIG) and denied treatment plans for psychological services and a neurological assessment.

The Tribunal found that the applicant failed to demonstrate that her injuries warranted removal from the MIG, as there was insufficient medical evidence of a pre-existing condition or functional impairment precluding recovery within the MIG limit.

The treatment plans were therefore not payable beyond the $3,500 limit.

The respondent's request for costs was denied.

The plaintiffs, Manubhai Lallub Patel and Manjula Patel, brought a motion to set aside a Registrar's Order dismissing their action as abandoned, issued on February 28, 2014.

The action, commenced in 2013 following a 2011 collision, was never served on the defendants.

The plaintiffs' former counsel, Alpesh Patel, deliberately did not advance the litigation and later fabricated settlement documents, leading to a fraud charge against him.

The court applied the four Reid factors (explanation of delay, inadvertence, promptness of motion, and prejudice to defendants) in a contextual approach.

The court found that the plaintiffs failed to provide a reasonable explanation for the delay, as they did not even know the action had been commenced, and their former counsel's conduct was deliberate, not inadvertent.

While the motion was brought promptly after the dismissal order came to the plaintiffs' attention, the defendants demonstrated significant actual prejudice due to the loss of key medical evidence (OHIP summaries) and the inability to conduct timely independent medical assessments over a 12-year period.

The court also emphasized the principle of finality and the fact that the plaintiffs are pursuing remedies against their former solicitor.

Consequently, the motion to set aside the dismissal order was dismissed.

The plaintiff alleged false imprisonment and injuries sustained after leaving a Canadian Tire store.

The defendants sought summary judgment on liability for false imprisonment and remoteness of damages.

The court found the defendants liable for false imprisonment, establishing a limited "shopkeeper's privilege" in Canadian common law for temporary detention to investigate theft, but ruled that the defendants exceeded its parameters by detaining the plaintiff to delete video footage.

However, the court found the plaintiff's claimed injuries sustained after leaving the store were too remote, applying an objective standard of foreseeability for a person of ordinary fortitude.

The Court of Appeal for Ontario issued a costs endorsement following the appeals in Westerhof v. Gee Estate and McCallum v. Baker.

The court ordered that the costs of the appeal in McCallum v. Baker be awarded to the respondent, fixed in the amount of $60,000 inclusive of disbursements and applicable taxes.

Two personal injury appeals were heard together to determine the scope of Rule 53.03 of the Rules of Civil Procedure regarding expert witnesses.

The Court of Appeal held that Rule 53.03 does not apply to 'participant experts' (such as treating physicians) or 'non-party experts' who form opinions based on their observation of or participation in the events at issue, rather than being engaged by a party for the litigation.

In Westerhof, the trial judge's erroneous exclusion of such evidence warranted a new trial.

In McCallum, the trial judge correctly admitted the treating practitioners' opinion evidence.

The plaintiff moved for leave to amend his statement of claim to substitute the actual owner and property manager of premises where a trip and fall occurred, after the limitation period had expired.

The court held the case was one of misnomer, not the addition of new parties, because the pleading clearly identified the incident, location, date, and alleged liability of the owner, occupier, and manager at the relevant time.

Applying the Court of Appeal's misnomer jurisprudence, the court found a reasonable person reviewing the claim would have understood the intended defendants were the owner and manager in place on the accident date.

The court further held there was no basis to exercise residual discretion to refuse the correction because there was no actual prejudice, no significant delay, and prompt notice followed shortly after expiry of the limitation period.

Following a jury verdict finding the plaintiff 100% liable for injuries arising from a motor vehicle collision, the successful defendants sought substantial costs.

The court applied the reasonableness and proportionality principles governing costs awards under the Rules of Civil Procedure and appellate guidance.

While the defendants were entitled to partial indemnity costs because they succeeded at trial, the court reduced the quantum significantly due to excessive and duplicative claims, unnecessary prolongation of the proceedings by the defendants, and improper inclusion of certain items such as voluntary mediation costs.

Arguments by the plaintiff that costs should be denied due to hardship, alleged disclosure failures, or Rule 49 offer acceptance were rejected.

The court fixed a reduced costs award reflecting fairness and proportionality.

The appellant appealed a jury award of $114,216.44 arising from a motor vehicle collision, arguing the trial judge made several errors including admitting a WSIB statement of claim, failing to strike the jury due to improper cross-examination, and providing an inadequate jury charge.

The respondents cross-appealed the trial judge's costs award regarding disbursements incurred after a Rule 49 settlement offer.

The Court of Appeal dismissed both the appeal and cross-appeal, finding no substantial wrong or miscarriage of justice in the trial's conduct and insufficient evidence on the record to prove an error in the costs award.

The appellant sued his insurance broker in negligence for failing to offer optional income replacement benefits.

The trial judge found the broker breached its duty of care but dismissed the action because the appellant failed to prove causation, specifically that he would have purchased the coverage if offered.

On appeal, the appellant argued that in cases of insurance broker negligence, the insured does not need to prove causation.

The Court of Appeal rejected this argument, holding that the normal rules of negligence apply and causation remains a question of fact.

Finding no palpable and overriding error in the trial judge's factual conclusions, the appeal was dismissed.

In a class proceeding arising from a major propane facility explosion, the plaintiffs sought to amend their statement of claim and certify claims against additional defendants associated with the ownership and leasing of the facility property.

The court considered whether the proposed amended pleading satisfied the s. 5(1)(a) requirement of the Class Proceedings Act by disclosing a reasonable cause of action.

Claims in strict liability and nuisance against the property-owning defendants were struck because the pleadings failed to meet the legal prerequisites and improperly characterized the alleged nuisance.

Negligence claims under the Occupiers’ Liability Act were also dismissed because the alleged damages occurred off the premises and the statute only applies to persons entering the premises.

However, the court held that the plaintiffs had properly pleaded a viable common law negligence claim based on the defendants’ alleged rights of control and failure to intervene in unsafe operations.

Certification against the remaining defendants proceeded solely on the basis of the common law negligence cause of action.

In a certified class proceeding arising from explosions at a propane facility, class counsel moved for an order restraining an insurer and its counsel from communicating directly with class members during the court‑approved opt‑out period.

The insurer’s counsel had sent letters stating the insurer would opt insured class members out of the class action and pursue their claims through a subrogated action.

The court held the communications were misleading, interfered with the solicitor‑client relationship between class counsel and class members, and violated the Rules of Professional Conduct.

The court reaffirmed that insureds retain control of litigation until fully indemnified for both insured and uninsured losses.

An order was made prohibiting the insurer and its counsel from communicating with affected class members without court approval or consent of class counsel during the opt‑out period.

The appellant appealed the dismissal of his action under Rules 20 and 21 of the Rules of Civil Procedure.

At trial, the appellant had amended his pleading to abandon all claims except for the pecuniary value of the alleged loss of an interdependent relationship (his marriage) following an accident.

The Court of Appeal upheld the motion judge's decision to strike the pleading under Rule 21, finding that the amended pleading contained virtually no material facts regarding the injuries, how they caused the marriage breakdown, or the associated economic loss.

The appeal was dismissed with costs.

The appellant appealed the trial judge's decision regarding liability under a lease and the dismissal of its counterclaim.

The Court of Appeal allowed the appeal, finding that the appellant had no liability for matters predating the 1999 lease and that there was no evidence of the cost to remove partitions erected during the lease term.

The court also found that the trial judge erred by dismissing the counterclaim without analysis, and ordered a new trial on the counterclaim.

The main action was dismissed.

The appellant appealed a trial judgment regarding liability under a commercial lease and the dismissal of its counterclaim.

The Court of Appeal allowed the appeal, finding that the appellant had no liability for matters predating the 1999 lease under the assignment of lease.

The court also found no evidence of the cost to remove partitions erected by the appellant.

The main action was dismissed.

The court also allowed the appeal regarding the counterclaim, ordering a new trial because the trial judge provided no analysis on liability or damages.

An addendum was later released confirming the result despite counsel's correction regarding evidence of partition removal costs.