Erin H. Durant

The applicant, a figure skating coach, sought leave to appeal an arbitration decision that found the Universal Code of Conduct to Prevent and Address Maltreatment in Sport (UCCMS) applied retroactively to his historical conduct from 2005.

The arbitrator had determined that the UCCMS was designed to protect the sporting public rather than punish past behaviour, thus falling under the protection of the public exception to the presumption against retroactivity.

The Superior Court of Justice granted leave to appeal but dismissed the appeal, finding no error of law in the arbitrator's application of the exception or his interpretation of the contractual consent signed by the applicant.

The Law Society of Ontario brought a certiorari application to quash a youth court judge's order that rescinded prior orders granting the Law Society access to the respondent's youth record for a good character investigation.

The Superior Court granted the application, finding that the youth court judge exceeded his jurisdiction by reconsidering his own prior orders without a material change in circumstances.

The court also found that the youth court judge committed an error of law on the face of the record by incorrectly interpreting section 82 of the Youth Criminal Justice Act as an absolute prohibition on accessing and using a youth record after the completion of a sentence, failing to read it in harmony with section 119 which permits such access.

The defendant brought a motion under s. 137.1 of the Courts of Justice Act to dismiss the plaintiff's defamation action as a Strategic Lawsuit Against Public Participation (SLAPP).

The parties had a brief relationship, after which the defendant made public allegations in the gaming community and on social media that the plaintiff had sexually assaulted her and was a sexual predator.

The court found that while the expressions related to a matter of public interest, the plaintiff's defamation claim had substantial merit and there were grounds to defeat the defence of justification.

The court concluded that the harm suffered by the plaintiff was sufficiently serious that the public interest in permitting the action to proceed outweighed the public interest in protecting the defendant's expressions.

The motion was dismissed, with no costs awarded.

The Superior Court of Justice dismissed a civil action brought by Stephen Massey, purportedly also on behalf of his two daughters (J.M. and C.M.), against 31 defendants including the Children's Aid Society, the Office of the Children's Lawyer, various lawyers, and his ex-wife.

The claim, a collateral attack on prior family law proceedings that concluded in 2016, alleged child abuse and professional misconduct.

The court dismissed the action against Mr. Massey with prejudice due to his failure to attend case conferences, non-compliance with court orders, and the action being frivolous, vexatious, and an abuse of process, largely barred by the limitation period.

The claim on behalf of J.M. and C.M. was dismissed without prejudice, acknowledging potential discoverability issues and the uncertainty of their authorization.

The court imposed a leave requirement for Mr. Massey to initiate future proceedings against these defendants and awarded costs against him.

The infant plaintiff suffered a severe and permanent brachial plexus injury during birth after encountering shoulder dystocia.

The plaintiffs brought a medical negligence action against the delivering obstetrician, alleging he applied excessive downward traction.

The defendant argued the injury was caused by maternal propulsive forces.

The court found that the defendant breached the standard of care by applying more than gentle downward traction, which caused the injury.

The court awarded $811,564 in total damages, including non-pecuniary damages, future care costs, future loss of income, and Family Law Act damages for the family.

The plaintiff sought to amend her statement of claim to add TQ Landscapes as a defendant, alleging she slipped on ice in a parking lot.

TQ Landscapes argued the claim was statute-barred due to the expiration of the limitation period.

The court found the plaintiff subjectively discovered her claim against TQ Landscapes on March 5, 2019, when she received documents identifying TQ as the snow removal contractor.

However, the court was unable to determine the date a reasonable person would have discovered the claim, thus allowing the amendment but permitting TQ Landscapes to plead a limitation defence.

Following a jury trial for a motor vehicle accident claim, the plaintiffs were awarded $5,000, a fraction of the $1.5 million claimed.

The defendant had made a Rule 49 offer of $350,000 prior to trial.

The court considered the factors under Rule 57.01 and the impact of the Rule 49 offer.

The court fixed the plaintiffs' costs at $100,000 and the defendant's costs at $200,000, ordering the plaintiffs to pay the net costs of $100,000 to the defendant, less the amount of their judgment.

The defendant brought a threshold motion seeking a declaration that the plaintiff, Catherine McNamee's, claims for non-pecuniary general loss and health care expenses were barred under the Insurance Act, as her injuries did not meet the "permanent serious impairment of an important physical, mental or psychological function" threshold.

The court, after hearing evidence at trial, focused on the issue of causation.

The plaintiff had a significant pre-accident history of alcohol use disorder, depression, and chronic pain.

The court found Ms. McNamee's evidence regarding the severity of the accident and the resolution of her prior injuries to be unreliable.

Preferring the defendant's expert opinion, the court concluded that Ms. McNamee's injuries from the motor vehicle accident had resolved by Fall 2014 and that her subsequent decline in functioning and mental health issues were primarily due to unrelated life stressors and her pre-existing conditions, not the accident.

Therefore, the plaintiff failed to establish causation, and her claims did not meet the statutory threshold.

The defendant's motion was granted.

The defendant brought a threshold motion during a jury trial for a motor vehicle accident, seeking a declaration that the plaintiff's claims for non-pecuniary general damages and health care expenses were barred under the Insurance Act.

The plaintiff had a significant history of pre-existing neck and back pain.

The court found that the plaintiff failed to prove on a balance of probabilities that his current ailments were caused by the subject accident.

Furthermore, even if causation was established, the plaintiff failed to prove that his impairments substantially interfered with most of his usual activities of daily living.

The threshold motion was granted, barring the claims.

This endorsement rules on which questions regarding damages claims (future treatment costs, medication, income loss) for Catherine and John McNamee will be put to the jury.

The court found insufficient evidence to support several of the plaintiffs' claims for future care costs and income loss, declining to put those specific questions to the jury.

The ruling emphasizes the need for precise evidence and medical justification for future care costs and a clear evidentiary foundation for income loss claims to avoid speculation.

The Plaintiffs sought leave under s. 12 of the Evidence Act to call more than three expert witnesses at trial and an order to abridge time for service of their expert reports.

The Defendant opposed, citing late service and duplication of expert evidence.

The court applied factors for granting leave, emphasizing the "gatekeeper" role of the trial judge and the policy behind s. 12 of the Evidence Act, which applies to all experts offering opinion evidence, including participant experts.

The court found significant duplication among the proposed psychiatric, psychological, and occupational therapy experts and that several reports were served late without adequate justification.

The motion was largely denied, limiting the Plaintiffs to one expert per specialty for opinion evidence and restricting the scope of a physiotherapist's testimony to observations rather than future recommendations for litigation purposes.

The plaintiffs sold a retirement home and alleged that their lawyer and the purchaser's lawyer failed to ensure $109,000 was held in trust for tax liabilities.

The defendant lawyers moved for summary judgment, arguing the claims were statute-barred.

The court granted the motions, finding the plaintiffs failed to rebut the presumption of discoverability and had knowledge of the material facts more than two years before commencing the action.

The court also dismissed the fraudulent misrepresentation claim due to a lack of evidence.

The Third Party, a municipality, brought a motion for summary judgment to dismiss a Third Party Claim brought by the Defendant general contractor.

The claim arose from a municipal infrastructure project where a provisional item was deleted from the contract.

The parties had previously entered into a Global Settlement Agreement to resolve all outstanding claims.

The court found that the summary judgment process was appropriate as there were no credibility issues requiring a trial.

The court interpreted the Global Settlement Agreement and concluded that the specific claim was subsumed within the settlement, barring the Defendant from asserting further claims.

The motion for summary judgment was granted.

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 plaintiff, having succeeded in a wrongful dismissal summary judgment motion, sought costs against the corporate defendant.

The court assessed the reasonableness of the plaintiff's claimed legal fees and disbursements, considering factors such as hourly rates, delegation of work, and the necessity of certain tasks.

While acknowledging the plaintiff's entitlement to costs, the court found some claimed hours and hourly rates to be excessive, leading to a reduction in the total award.

The appellant commenced an action in small claims court for breach of contract and subsequently filed a duplicative claim in superior court with additional claims.

The trial judge struck out the entire superior court action as frivolous, vexatious, and an abuse of process under Rule 2.1, finding that the appellant had not followed proper procedure to transfer the small claims action and was attempting to litigate the same matters in two courts simultaneously.

The Court of Appeal upheld the dismissal, finding no error in the trial judge's decision.

This decision addresses a costs award and ancillary matters following a jury verdict in a personal injury action.

The jury found the defendants 62% liable, awarding substantial damages for pain and suffering, future care costs, and family law damages.

The court ruled on four key issues: ordering an assignment of accident benefits, limiting the McEwens' personal liability to insurance policy limits due to their bankruptcy, applying a 5% pre-judgment interest rate for non-pecuniary damages (finding the relevant statutory amendment not retrospective), and applying the new statutory deductible of $18,270.00 to the Family Law claim.

Despite the jury verdict exceeding some settlement offers, the court significantly reduced the plaintiffs' requested costs from $795,616.09 to $375,000, citing the plaintiffs' conduct, including late expert reports, changing their position on calling the plaintiff, and engaging in "sharp practice" by attempting to enforce a settlement offer while simultaneously initiating a bad faith claim against an insurer.

The plaintiff, Beate Nkunda-Batware, was awarded $418,330 by a jury in a motor vehicle personal injury action.

The defendants brought a threshold motion, arguing that the plaintiff's injuries did not meet the statutory exceptions under subsections 267.5(3) and (5) of the Insurance Act, requiring a "permanent, serious impairment of an important, physical, mental or psychological function." The court found that the plaintiff, a "thin skull" individual with a pre-existing predisposition to depression, suffered whiplash injuries that evolved into a chronic pain syndrome directly caused by the accident.

The court preferred the plaintiff's medical experts and concluded that the plaintiff's impairments were permanent and serious, substantially interfering with her employment and daily functioning.

The defendants' threshold motion was dismissed.

The plaintiffs in a medical malpractice action sought leave to amend their statement of claim to substitute two identified physicians for previously named fictitious “Doe” defendants after the expiry of the limitation period.

The court considered whether the substitution constituted correction of a misnomer under Rule 5.04(2) of the Rules of Civil Procedure and s. 21(2) of the Limitations Act, 2002.

Applying the “litigation finger” test, the court held the pleadings sufficiently identified the intended physicians through details of the hospital, department, treatment period, and alleged conduct.

The court found no material prejudice arising from the delay and determined that the plaintiffs had exercised reasonable diligence in attempting to identify the physicians through medical records and inquiries.

Leave to amend and substitute the physicians for the Doe defendants was granted.

Following settlement of an application brought by a condominium corporation to enforce compliance with condominium rules and compel sale of a unit, the only remaining issue was costs.

The corporation sought full indemnity costs exceeding $59,000.

The court reviewed the factors under Rule 57.01 of the Rules of Civil Procedure and s.131 of the Courts of Justice Act, noting the respondent’s prolonged non-compliance with the condominium’s declaration, rules, and by-laws despite repeated warnings.

While recognizing that full indemnity costs were appropriate in condominium enforcement proceedings where owners’ misconduct forces litigation, the court reduced certain claimed fees as excessive.

The court fixed costs on a full indemnity basis at $48,692.09 and ordered that unpaid costs be added to the unit’s common expenses and secured as a lien under the Condominium Act.