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 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.

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.

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.