Grant David Bodnaryk

The defendants/moving parties brought a motion seeking an order compelling the plaintiff to answer outstanding undertakings and certain refusals given at his examination for discovery.

The defendants were substantially successful on the motion, obtaining compliance on five of eleven requests and having relief denied on three requests.

The court awarded partial indemnity costs to the defendants in the amount of $4,302.13, payable within 30 days.

The court considered the defendants' substantial success, the reasonableness of the legal fees and rates, and the proportionality of the award in fixing costs.

The appellants, Orllyn Loney and Yvonne Prouty, appealed the dismissal of their motion to amend their statement of claim to correctly name the driver and owner of a tractor-trailer (Michael George Alexander Mills and 564242 Ontario Limited, also known as Liftlock) as defendants, replacing "John Doe" and "ABC Corporation".

The motion was brought almost ten years after the accident and over three years after the action was set down for trial.

The motion judge denied leave, finding no sudden change in circumstances and non-compensable prejudice due to the lengthy, unexplained delay.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding error in her exercise of discretion.

The court emphasized the importance of adhering to limitation periods and the actual prejudice caused by the delay, including the loss of timely discovery opportunities for the proposed defendants.

The defendants brought motions for leave to file a jury notice and to compel answers to undertakings, while the plaintiff brought a motion for answers to refusals.

The action arose from a motor vehicle accident and was initially commenced under the ordinary procedure, moved to the simplified procedure, and then moved back to the ordinary procedure due to the anticipated length of the trial.

The court granted the defendants leave to file a jury notice, finding the change in procedure constituted a substantial change in circumstances.

The court also ordered the plaintiff to answer an outstanding undertaking regarding her EI file but dismissed the plaintiff's motion regarding refusals.

Costs of $9,000 on a substantial indemnity basis were awarded to the defendants.

The plaintiffs sought leave to amend their statement of claim to substitute "John Doe" and "ABC Corporation" with specific names (Michael George Alexander Mills and 564242 Ontario Limited) on the basis of misnomer, and also sought leave to bring this motion after the action was set down for trial.

The court dismissed the motion, finding that the plaintiffs had not provided a reasonable explanation for the extraordinary delay in identifying the correct defendants and bringing the motion, and that the proposed defendants would suffer non-compensable prejudice due to the lengthy delay.

The plaintiff sought an extension of time to serve a Statement of Claim, filed in 2017 for a 2015 motor vehicle accident.

The court dismissed the motion, finding the delay of over five years to be extreme and inexcusable.

The plaintiff's explanations, including inability to locate parties, a negligent associate, and COVID-19, were deemed without merit.

The court found actual and presumed prejudice to the defendants due to the passage of time, loss of evidence, and compromised ability to investigate and bring third-party claims.

The decision emphasized counsel's ultimate responsibility for prosecuting the action.

The moving party brought a motion for leave to appeal an order of Boswell J. dated September 1, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties in the amount of $1,500.

The defendants brought a motion to impose a discovery plan in a Simplified Rules motor vehicle accident claim.

The parties disagreed on whether the plaintiff should be required to produce certain medical and employment records prior to oral examinations, and who should bear the upfront cost of obtaining them.

The court ordered the plaintiff to use her best efforts to obtain and disclose the disputed productions prior to discoveries, finding them relevant and proportionate.

The court also held that under Rule 76.03, the plaintiff is presumptively required to obtain and disclose these documents at her own expense.

The defendants brought a motion for an order requiring the plaintiff to produce all materials and a transcript from her Canada Pension Plan (CPP) disability benefit application hearing.

The plaintiff had applied to convert her CPP retirement pension to a disability pension, but the application was dismissed because she missed the 15-month window, and the substantive merits of her disability were never adjudicated.

The court dismissed the motion, finding that the requested documents were irrelevant to the issue decided by the tribunal and that the request amounted to a fishing expedition.

The court also noted that the plaintiff had already produced approximately 1,200 pages of medical records from her CPP file, making further production disproportionate.

This is a costs decision on appeal from a trial judgment concerning liability for damages arising from an accident.

The appellants sought to challenge the trial judge's costs award.

The Court of Appeal determined that liability should be apportioned two-thirds to Safranyos and one-third to Hamilton.

The court made a Sanderson order requiring Safranyos to pay one-third of McHugh's costs of trial and appeal, but declined to impose such an order against Hamilton, as Hamilton made no arguments relating to McHugh's liability at trial or on appeal.

A motor vehicle collision occurred at an intersection in Hamilton when a vehicle operated by Ms. Safranyos failed to yield the right-of-way and was struck by a vehicle operated by Mr. McHugh, who had consumed alcohol and was speeding.

The trial judge found all three defendants liable: Ms. Safranyos at 50%, Mr. McHugh at 25%, and the City of Hamilton at 25%.

The City appealed on grounds that the trial judge misapplied the non-repair standard and improperly used adverse inferences.

Mr. McHugh appealed on grounds that the trial judge erred in finding he could have avoided the collision and misused evidence regarding his intoxication.

The Court of Appeal dismissed the City's appeal but allowed Mr. McHugh's appeal, finding the trial judge committed palpable and overriding errors in her factual findings and legal analysis regarding Mr. McHugh's liability.

In a voir dire during a personal injury jury trial arising from a motor vehicle accident, the court ruled on the admissibility of expert evidence from three of the plaintiff's proposed medical experts.

The court permitted a chiropractor and an orthopedic surgeon to testify within their specific scopes of practice regarding musculoskeletal issues and trigger points, but precluded them from diagnosing the plaintiff's swallowing disorder (achalasia) or providing threshold opinions on that impairment.

A second chiropractor was entirely excluded from testifying due to clear bias, partisan methodology, and opining outside his area of expertise.

The plaintiff brought a motion under Rule 48.04 of the Rules of Civil Procedure for leave to conduct examinations for discovery of the defendant after the trial record had been filed.

The plaintiff argued that discovery was not conducted earlier due to a belief that liability would not be contested, or alternatively, due to inadvertence.

The court applied the flexible approach from BNL Entertainment Inc. v. Ricketts, finding that a brief discovery would not delay the scheduled trial or prejudice the defendant.

The motion was granted, but no costs were awarded as the motion was necessitated by the plaintiff's counsel.

The appellant, a secondary insurer, paid for a claimant's expensive prescription drug after the respondent, the primary insurer, denied coverage.

The appellant later sued the respondent for reimbursement.

The motion judge found the appellant's claim was partially statute-barred because it was discovered when the appellant first learned of the denial in October 2009.

The Court of Appeal reversed, holding that the appellant could not have reasonably discovered its claim until the respondent finally produced the policy wording in September 2011.

The appeal was allowed and the respondent was ordered to fully reimburse the appellant.

The defendant brought motions for security for costs in two related motor vehicle accident actions commenced by spouses.

Although the plaintiffs had moved to Ghana and were therefore ordinarily resident outside Ontario, they proposed transferring the actions to Small Claims Court.

The court held that if the actions were transferred, security for costs would not be available because the Small Claims Court lacks jurisdiction to order it.

The decision on the motions was therefore reserved for 120 days to allow the plaintiffs to pursue transfer of the actions.

The appellant appealed an order bifurcating the trial of liability and damages, arguing that bifurcation cannot occur without consent when a valid jury notice exists.

The respondent municipality cross-appealed the motion judge's refusal to strike the jury notice, arguing that section 108 of the Courts of Justice Act prohibits jury trials when a municipality is a party.

The Divisional Court granted leave for the cross-appeal and held that the rules and statute operate to prohibit the filing of a jury notice where a municipality is named.

The court allowed the cross-appeal, set aside the jury notice as a nullity, and consequently dismissed the appellant's appeal regarding bifurcation.

The plaintiff insurer sought summary judgment against the defendant insurer for equitable contribution and unjust enrichment regarding the costs of a life-saving drug, Soliris, paid on behalf of a mutual insured.

The defendant had initially denied coverage improperly.

The court found that the defendant was unjustly enriched and obligated to pay 90% of the drug costs as the primary insurer.

However, the court held that the plaintiff discovered the claim in October 2009, meaning claims for payments made more than two years before the action was commenced on April 4, 2012, were statute-barred.

Applying the principle that a new cause of action arises with each monthly payment, the court ordered the defendant to reimburse the plaintiff for all payments made after April 4, 2010.

The defendant sought leave to appeal an interlocutory order that bifurcated the trial into liability and damages phases.

The moving party argued that the bifurcation order conflicted with appellate jurisprudence, specifically the rule that a trial cannot be bifurcated without consent when a valid jury notice is in place.

The court found that there was a conflicting decision and good reason to doubt the correctness of the bifurcation order, satisfying the test for leave to appeal.

The motion for leave to appeal was granted.

The appellants appealed a Master's order dismissing their motion to extend the time for service of a Statement of Claim arising from a fatal motor vehicle accident.

The Master had found that the defendants would be prejudiced by the delay.

The Divisional Court allowed the appeal, finding that the Master erred in law by concluding that a co-defendant's right to claim contribution and indemnity was lost due to the expiry of a limitation period, and by failing to hold the defendants to their evidentiary obligation to demonstrate actual prejudice caused by the delay in service.

The appellants were granted leave to serve the Statement of Claim.

The applicant sought a declaration that the respondent’s automobile insurer was solely responsible for defending and indemnifying him in a personal injury action arising from an accident during the unloading of equipment from a tow truck.

The court considered whether the applicant qualified as an “occupant” of the vehicle under the garage automobile policy and whether the exclusion clause in the applicant’s home insurance policy applied.

Applying the purposive approach reflected in appellate authorities interpreting the use or operation of an automobile, the court held that assisting in unloading the truck constituted an ordinary use of the vehicle and the applicant was therefore an “occupant” for insurance purposes.

However, the court found that unresolved factual issues remained regarding the applicability of the home insurance exclusion.

The application was therefore allowed in part, with the remaining coverage issue to be determined after the trial of the underlying action.