Donna M. Crabtree

The applicants (Suncor/Auger) brought a motion to compel the third party (EllisDon) to properly answer discovery undertakings related to electronic documents from its "EdgeBuilder System" database.

EllisDon had produced a portable drive containing 37,899 documents but without unique identifiers or sufficient searchability for efficient litigation.

The court found EllisDon failed to meet e-discovery requirements, emphasizing the need for unique identifiers and co-operation in discovery planning as per the Sedona Canada Principles.

The motion was granted, ordering EllisDon to produce a revised, accessible, and searchable version of the portable drive with unique identifiers and to engage in discovery planning.

No costs were awarded due to the parties' mutual failure to engage in discovery planning earlier.

In this products liability motion arising from a fractured artificial hip stem, the plaintiffs sought refusals and undertakings following discovery of the corporate defendants.

The court held that electronically stored information in a database is discoverable and that the defendants could be ordered to run a broader query, but only within proportionate limits tied to the pleaded design, manufacturing, and failure-to-warn issues.

The court ordered disclosure of fracture incident data for specified similar models and time periods, required clarification of database filters, and directed limited follow-up inquiries regarding a technical article, product durability, and x-ray issues.

Broader requests concerning historical testing methodologies, supplier selection, and general training were refused as disproportionate or unsupported by the pleadings.

Following a motion decision dismissing a request to amend a statement of defence to add a cross‑claim against Ontario and Canada as statute‑barred, the court addressed Ontario’s claim for costs.

The unsuccessful party argued that Ontario acted opportunistically by waiting until after the limitation period expired to raise the limitation defence and submitted that each party should bear its own costs or that Ontario’s rates should be reduced.

The court rejected the allegation of opportunism and confirmed that costs for the Crown are assessed based on fairness and reasonableness rather than actual internal billing rates.

After considering the hours claimed, the applicable partial indemnity rate guidance, and comparative information regarding Canada’s costs settlement on the same motion, the court exercised its discretion to reduce the requested amount.

Costs were awarded to Ontario in the amount of $6,000 inclusive.

The defendants brought a motion seeking an order compelling the plaintiff to produce unredacted clinical notes and records of the plaintiff’s treating psychologist.

The plaintiff had produced the records with redactions relating to discussions about the litigation, mediation, and communications with counsel.

The court reviewed the unredacted notes and considered the governing principles for redaction under the Rules of Civil Procedure, including the requirement that relevant documents be produced in full subject to limited exceptions.

The court held that the redacted portions were irrelevant to the issues in the action and that disclosure would only embarrass or prejudice the plaintiff without assisting in resolving the dispute.

The motion to compel production was dismissed and costs were awarded to the plaintiff.

Supplementary reasons addressing an outstanding refusal arising from an examination for discovery in a civil action involving a leased vehicle.

The disputed question asked how profit was calculated by the dealership on a leased vehicle.

The court held that while the exact profit earned by the dealership was not directly relevant, the method of calculating profit was relevant to issues concerning ownership, control of the vehicle, and the financial relationships among the dealer, financing company, and manufacturer.

Given the surrounding evidence about the assignment of the lease and payments made, the answer was necessary to understand prior discovery evidence and documents produced.

The witness was therefore required to answer the question regarding how profit is calculated.

The Court of Appeal determined the costs of an appeal and cross-appeal.

Although success was divided, the respondent achieved much greater success by successfully defending against the main appeal on liability and succeeding on the cross-appeal.

The court fixed the respondent's costs at $40,000, inclusive of GST and disbursements, noting the complexity of the matter and the lengthy record.

The appellants, physicians found liable for medical malpractice for failing to diagnose the respondent's acromegaly, appealed the trial judge's awards for future income loss, future medication costs, and a $150,000 costs premium.

The Court of Appeal dismissed the appeal regarding damages, finding the trial judge reasonably relied on lay evidence and medical reports to establish future income loss, and correctly held the tortfeasors responsible for medication costs despite government program coverage.

The respondent's cross-appeal to apply the Rule 53.09 discount rate to future medication costs was allowed.

The Court also reduced the costs premium to $75,000, finding the trial judge erred by penalizing the appellants for their insurer's settlement policy, though a premium was still justified by the risk assumed and result achieved by the respondent's counsel.

The applicant sought to vary or revoke an arbitration order that denied her post-156 week income benefits, arguing there was new evidence and a material change in her circumstances.

The Director of Arbitrations dismissed the application, finding that the applicant could not claim a material change because she was not continuously disabled at the 156-week mark.

Furthermore, the new medical evidence post-dated the critical period by over four years, did not undermine the original factual findings, and would not have affected the outcome.

The appellant brought a motion to restore her appeal of an arbitration decision regarding accident benefits, arguing her former counsel withdrew the appeal without her authority.

In the alternative, she sought an extension of time to file a new appeal and an order for interim expenses to obtain a hearing transcript.

The Director of Arbitrations dismissed the motion, finding that the appellant was bound by her counsel's withdrawal of the appeal, which was clear and relied upon by the respondent.

The request for an extension of time was denied due to the significant delay of over three years and the resulting prejudice to the respondent.

The request for interim expenses was also denied, as transcripts are not formally required and the appellant failed to establish that the respondent should bear the cost at this stage.

Following the dismissal of the applicant's claims for further weekly income benefits, the parties sought an order for arbitration expenses.

The arbitrator found that the applicant had submitted false and misleading evidence regarding his post-accident earnings to both the insurer and the tribunal.

Due to this fraudulent conduct, which prolonged the hearing, the applicant was ordered to bear his own expenses and pay one-half of the insurer's arbitration expenses.

The applicant, a taxi driver, was injured in a motor vehicle accident and received weekly income benefits for approximately one year.

He disputed the insurer's termination of benefits, claiming a substantial inability to perform the essential tasks of his occupation due to reduced working hours, and later claiming he was continuously prevented from engaging in any suitable occupation.

The arbitrator found the applicant's self-reported post-accident income records lacked credibility, particularly when contradicted by surveillance evidence showing he worked longer hours and took more fares than recorded.

The arbitrator concluded the applicant was capable of working 12-hour shifts and did not suffer a substantial inability, except for a brief period following sinus surgery.

The claim for ongoing benefits was dismissed as the temporary disability did not meet the continuity requirement.

The insurer appealed an arbitration order finding that the insured's application for arbitration was not time-barred.

The insurer had terminated the insured's weekly income benefits and provided oral, but not written, notice of its decision.

The Director's Delegate dismissed the appeal, holding that under the Insurance Act and the Statutory Accident Benefits Schedule, an insurer must provide written notice of a refusal to pay benefits to trigger the two-year limitation period.

The Director's Delegate also rejected the insurer's argument that the insured was estopped from relying on the lack of written notice, finding insufficient evidence that the insurer continued to rely on any agreement to forgo written notice.

The Applicant sought arbitration for statutory accident benefits following a motor vehicle accident.

The Insurer raised a preliminary issue, arguing the application was time-barred because it was filed more than two years after a verbal refusal to pay benefits, and that the issue of ongoing entitlement had not been mediated.

The Arbitrator held that the limitation period under the Insurance Act and the Statutory Accident Benefits Schedule is only triggered by a clear, written notice of refusal, which the Insurer failed to provide.

The Arbitrator also exercised discretion to allow the arbitration to proceed despite the mediation occurring after the application was filed.

The preliminary motion was dismissed, and the Applicant was awarded expenses.

The applicant was injured in a motor vehicle accident and received statutory accident benefits from the insurer.

The insurer terminated weekly non-income benefits and housekeeping expenses, prompting the applicant to seek arbitration.

The arbitrator found that the applicant's accident-related injuries continuously prevented her from engaging in substantially all of her normal activities, entitling her to ongoing weekly non-income benefits.

The arbitrator also awarded ongoing housekeeping expenses, finding the insurer's termination of this benefit unreasonable, which justified a special award of $2,000.

The insurer was found entitled to repayment of collateral benefits received by the applicant from a private disability insurer.

The applicant, a self-employed real estate broker, was struck by a vehicle and claimed ongoing weekly income benefits and expenses under the Statutory Accident Benefits Schedule.

The insurer terminated benefits at the three-year mark, arguing she could return to work or engage in other suitable employment.

The arbitrator found that the alternative jobs proposed by the insurer were unsuitable given the applicant's age, lack of administrative skills, and pre-existing arthritis.

However, based on surveillance evidence showing the applicant working full days without apparent restriction by May 1995, the arbitrator concluded she was no longer substantially unable to perform her essential tasks after that date.

The arbitrator also calculated her pre-accident income to establish a maximum weekly benefit of $1,050, allowed deductions for post-accident income, and awarded partial housekeeping and full snow removal expenses.