David Visschedyk

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.

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.