Elizabeth A. Quigley

The appellant appealed a jury verdict dismissing her negligence action against the respondent homeowners after she slipped and fell on their staircase.

The appellant argued the trial judge erred in excluding the first set of expert slip resistance testing, resulting in a miscarriage of justice.

The Court of Appeal found no error in the trial judge's gatekeeping decision under the White Burgess framework, as the excluded testing differed materially from the actual conditions.

Even if the exclusion were erroneous, no miscarriage of justice resulted because the tampering theory was still advanced at trial through other evidence and the jury's verdict turned on the credibility of the parties.

The appellant, a housing corporation, appealed a motion judge's decision striking its claims against a manufacturer and seller of a defective toilet flushing system.

The appellant sought damages for excess water costs resulting from system failure.

The Court of Appeal upheld the motion judge's decision, holding that: (1) the manufacturer could not be sued under the Sale of Goods Act as it was not a seller in privity with the purchaser; and (2) the claim in negligence was for pure economic loss, which is not recoverable in tort absent exceptional circumstances not present here.

The court confirmed that such disputes are customarily dealt with by contract, not tort.

The Court of Appeal for Ontario issued a costs endorsement following its August 15, 2024 decision.

The parties resolved the costs of the appeal and underlying prejudgment interest motions by consent.

The respondent agreed to pay the appellants an all-inclusive amount of $60,000 for appeal and motion costs.

The appellants appealed a trial judge's prejudgment interest order, arguing errors in applying statutory rates and discretion under the Courts of Justice Act.

The Court of Appeal found the trial judge erred by misapplying the presumptive 5% rate for non-pecuniary damages, misconstruing the purpose of non-pecuniary damages, and misinterpreting "market interest rates" by equating them with statutory prejudgment rates.

The trial judge also improperly rejected evidence of the insurer's and appellants' actual investment returns.

The appeal was allowed, and the prejudgment interest rate for both non-pecuniary and past pecuniary damages was increased to 8.46%.

The Ottawa Community Housing Corporation (OCHC) sued Sloan Valve Company and Wolseley Canada Inc. for damages related to the alleged failure of the Flushmate System, asserting claims for breach of warranty under the Sale of Goods Act, negligence, and negligent misrepresentation.

The defendants brought a Rule 21 motion to strike OCHC's claims for breach of implied warranty against Sloan and negligence against both defendants, arguing that implied warranties under the Sale of Goods Act require privity of contract and that pure economic loss from non-dangerous, shoddy goods is not recoverable in negligence.

The court granted the defendants' motion, striking both the implied warranty claim against Sloan and the negligence claims against both defendants, affirming that privity is required for implied warranties under the SGA and that economic loss for non-dangerous goods is not recoverable in negligence.

OCHC was granted leave to amend its pleading regarding negligent misrepresentation.

The defendant brought a motion to set the prejudgment interest rate on non-pecuniary damages awarded to the plaintiffs by a jury at 1.3% instead of the prescribed 5%.

The plaintiffs cross-moved, seeking an 8.46% rate for both non-pecuniary and past pecuniary damages.

The court granted the defendant's motion, reducing the prejudgment interest on non-pecuniary damages to 1.3%, citing low prevailing prejudgment interest rates and the future loss component of the award.

The plaintiffs' cross-motion was dismissed, with the court maintaining the default 0.8% rate for past pecuniary damages, rejecting the plaintiffs' arguments for a higher rate based on their investment returns or the defendant's insurer's returns.

The Court of Appeal for Ontario issued supplementary reasons to its earlier judgment in Nemchin v. Green, 2021 ONCA 238, which had allowed the appellant's appeal regarding the "top-up" of long-term disability benefits assigned to the respondent's insurer, Aviva.

This addendum addresses the treatment of potential tax refunds from Sun Life's remittances and the allocation of expenses related to pursuing such refunds.

The court clarified that while Aviva is not compelled to seek tax refunds or cease tax deductions, if Aviva chooses not to pursue a tax refund, it must reimburse the appellant's reasonable expenses for bringing such an application, as Aviva would ultimately receive the benefit of any tax refunds.

The appellant, Kossay El-Khodr, appealed an application judge's order to release $385,000 from a trust to Northbridge Commercial Insurance Company.

The funds were held pending the outcome of a previous appeal (the "Assignment Appeal") concerning the assignment of statutory accident benefits (SABs) for future medical and rehabilitation expenses.

The appellant argued that the conditions for release in the Minutes of Settlement were not fully met because the Assignment Appeal did not grant an assignment of *all* medical and rehabilitation benefits.

The Court of Appeal dismissed the appeal, finding that the application judge correctly interpreted the Minutes of Settlement in the context of the Assignment Appeal, which had assigned the specific categories of benefits at issue, thereby satisfying the conditions for the release of funds to the respondent and preventing double recovery.

This is a costs endorsement following an appeal where the Court of Appeal allowed the appellant's appeal, setting aside a trial judge's order requiring the appellant to "top up" assigned benefits due to tax deductions.

The appellant was awarded partial indemnity costs for the appeal.

This endorsement specifically addresses the costs of a prior motion before the trial judge (the "top up motion"), for which the trial judge had made no costs order.

The Court of Appeal found the appellant entitled to costs for this motion, ordering the respondent to pay $10,000, reasoning that the unanticipated nature of the trial judge's order and the parties' failure to seek an advance tax ruling contributed to the litigation.

The appellant appealed a trial judge's order requiring her to "top up" assigned long-term disability benefits to account for income tax deductions, arguing procedural unfairness and misinterpretation of s. 267.8 of the Insurance Act.

The Court of Appeal found the "top up" order procedurally unfair as it was not requested by parties and misinterpreted the statutory trust and assignment provisions.

The court held that the assignment applies to net after-tax payments, and the respondent's insurer, as assignee, must bear the burden of addressing tax implications with the insurer and CRA.

The appeal was allowed, and the "top up" order was set aside.

The Court of Appeal for Ontario granted leave to appeal and allowed an appeal from the Divisional Court, restoring a motion judge's order to strike jury notices in two civil actions (tort and accident benefits) arising from a motor vehicle collision.

The motion judge had struck the jury notices due to significant delays in scheduling civil jury trials in Ottawa amidst the COVID-19 pandemic, ordering judge-alone trials in tranches.

The Divisional Court had overturned this, finding the motion judge's decision arbitrary due to insufficient evidence of prejudice beyond delay.

The Court of Appeal held that delay alone can constitute prejudice, that appellate courts should show deference to discretionary case management decisions, and that the motion judge had sufficient evidence of local conditions to justify the order.

The defendant brought a motion requesting that its summary judgment motion be heard before the plaintiff's motion for certification of a class proceeding regarding the calculation of long-term disability benefits.

The plaintiff opposed, arguing the motions should be heard together or certification first.

The court applied the factors from Canon v. Funds for Canada Foundation and determined that hearing both motions at the same time would be the fairest and most efficient manner of proceeding, avoiding potential delays and multiple appeals.

The defendant's motion was dismissed.

The appellant appealed a jury verdict awarding the respondent approximately $700,000 in damages for personal injuries arising from a motor vehicle accident.

The main issue at trial was whether the respondent's post-traumatic stress disorder was caused by the collision or by an earlier sexual assault.

The trial judge excluded surveillance video evidence and Facebook posts that the defence sought to introduce as substantive evidence of the respondent's functionality.

The Court of Appeal found that the trial judge erred in excluding the surveillance evidence by dealing with it as a whole rather than taking a discrete approach to each video excerpt, and by concluding that the evidence could only be admissible if it directly contradicted the respondent's testimony.

However, the Court found that even if the surveillance evidence were admissible, it was not so significant that it would have affected the jury's verdict on damages.

The appeal was dismissed.

The appellants sought to add three health care providers as defendants to a medical malpractice action more than two years after the original injury.

The motion judge dismissed the motion on the basis that the limitation period had expired.

The Court of Appeal allowed the appeal, finding that the motion judge applied the wrong test under the Limitations Act, 2002.

The court held that the motion judge failed to make proper findings of fact regarding when the appellants knew or ought reasonably to have known of their claims against the proposed defendants.

The court also found that the motion judge erred in treating lack of due diligence as a standalone ground for finding claims statute-barred.

The key distinction was that the claims against the proposed defendants differed from the claim against the original defendant, as they involved allegations that the health care providers failed to take immediate action once cauda equina syndrome was suspected, information that was only revealed during examinations for discovery in 2015.

The plaintiff was catastrophically injured in a motor vehicle accident and sued the defendants for damages.

The jury found the defendants 62% liable and awarded damages of approximately $2.6 million, including $2.2 million for future care costs.

The trial judge made a conditional assignment order of the plaintiff's future statutory accident benefits (SABs) to the defendants' insurers under section 267.8(12)(a)(ii) of the Insurance Act.

The plaintiff appealed, arguing that the assignment violated strict matching principles and was premature.

The Court of Appeal dismissed the appeal, affirming the conditional assignment order and rejecting the strict matching approach in favour of a "silo" approach.

The court also denied leave to appeal the trial judge's substantial reduction of the plaintiff's costs award, which was reduced from $795,616.09 to $375,000 due to the plaintiff's counsel's conduct regarding a settlement offer, the lack of material benefit in proceeding to trial, and conduct that unnecessarily extended the trial.

The respondent brought an unsuccessful motion for reconsideration in writing.

The court awarded costs to the responding parties, rejecting the moving party's argument that costs should be modest because the motion was made in writing.

The court found that the 18.6 hours spent by counsel responding to the motion was reasonable, as the motion required a review of materials filed on the appeal and arguments made at the hearing.

Costs were fixed at $8,249, inclusive of disbursements and HST.

The moving party sought an order to withdraw the Court of Appeal's reasons for decision dated September 19, 2017, and to grant a rehearing before a five-judge panel, or alternatively, to stay the decision pending determination of related appeals.

The moving party argued that the Court had effectively overruled Bannon v. Hagerman Estate without notice and had addressed a new issue regarding the Ontario Drug Benefit Program that was not raised by the parties.

The Court dismissed the motion, finding that it had not overruled Bannon but rather distinguished it on its facts, and that the Ontario Drug Benefit Program issue had been squarely addressed by both parties during the appeal.

This is a costs endorsement following a successful appeal by the defendants.

The appellants sought partial indemnity costs of $56,676.40, which reflected their full indemnity rate.

The respondent argued for a significant reduction, contending that the court's decision had changed the legal landscape in personal injury litigation.

The court reduced the costs award to $30,000 inclusive of disbursements and HST, reflecting a partial indemnity rate and accounting for the complexity of the issues involved.

Appeal from a jury trial judgment in a catastrophic motor vehicle accident case.

The appellants challenged five rulings by the trial judge regarding prejudgment interest, assignment of statutory accident benefits (SABs), and treatment of collateral benefits.

The Court of Appeal allowed the appeal in part, reducing the prejudgment interest rate from 5% to 2.5%, amending the retirement age for income replacement benefit assignment from age 60 to age 64, and ordering assignment of future SABs for medication, assistive devices, and professional services.

The court declined to order assignment of drug benefits after age 65 due to the Ontario Drug Benefit Program, but found the trial judge erred in treating this as a contingency rather than a certainty.

Intact Insurance Company brought an application seeking a declaration on the interpretation of s. 44(1) of the Statutory Accident Benefits Schedule (SABS), specifically whether an insured is required to sign any consent form dictated by the insurer for a s. 44 examination.

The respondent, Anne Beaudry, argued that such consent forms must be "reasonable and justifiable." The court found that any required consent form must be "reasonable," based on the language of s. 44, the insurer's duty of utmost good faith, and the Unfair and Deceptive Practices Regulation.

The court dismissed Intact's request to unilaterally dictate consent terms, emphasizing the need for reasonableness and negotiation.