Helen A. Rady

The insurer applied for a determination of whether s. 45 of the Statutory Accident Benefits Schedule requires an insured to identify a single accident when applying for a catastrophic impairment designation.

The insured had been involved in three motor vehicle accidents and submitted a single OCF‑19 application claiming catastrophic impairment based on the cumulative effects of all three accidents.

The court interpreted the legislation and regulatory scheme and concluded that the catastrophic impairment determination must be anchored to a single identified accident.

However, the insured may still rely on the cumulative impact of prior accidents where the specified accident represents the tipping point leading to catastrophic impairment.

The court therefore granted the application in part and declared that the application must specify one accident.

The plaintiff sought leave to file a statement of claim after failing to do so within the 30‑day period following issuance of a notice of action.

The underlying action alleged damages for wrongful arrest, prosecution, and incarceration arising from charges that resulted in an acquittal.

The court held that issuing the notice of action within the limitation period tolled the limitation period and that the failure to file the statement of claim in time was an irregularity caused by solicitor inadvertence.

Applying the test from Nugent v. Cook, the court found the delay resulted from inadvertence and caused no prejudice to the defendant.

Leave was granted to issue the statement of claim and extend time for service.

The defendants brought a motion to adjourn a scheduled trial in a professional negligence action arising from legal and accounting advice provided in connection with a corporate reorganization that allegedly caused adverse tax consequences.

The defendants argued that the plaintiffs’ damages theory had expanded late in the litigation to include business losses, requiring a responsive expert report and further discovery.

Applying Rule 52.02 and the factors set out in Ariston Realty Corp. v. Elcarim, the court held that proceeding without the defendants’ damages expert would be fundamentally unfair.

A brief adjournment was available and no non-compensable prejudice to the plaintiffs was established.

The interests of justice therefore required that the trial be adjourned.

Following dismissal of a motion for an interim injunction, the successful defendants sought substantial indemnity costs of $26,270.93 for the interlocutory proceeding.

The court acknowledged the general presumption that the successful party is entitled to costs and that interlocutory costs are ordinarily payable forthwith.

However, given that the underlying dispute raised a serious issue to be tried concerning alleged use of a protected confectionery recipe and related marketing practices, the court concluded that the justice of the case warranted a different approach.

Costs of the motion were therefore reserved to the trial judge, who would be better positioned to assess entitlement in the context of the full record.

The plaintiff sought an interlocutory injunction restraining the defendants from using the term “mint smoothie” to describe a chocolate confection, alleging trademark infringement and passing off under the Trademarks Act.

The court accepted that there was a serious issue to be tried given the parties’ relationship, the defendants’ marketing references to family recipes, and the existence of a registered trademark.

However, the plaintiff failed to demonstrate irreparable harm as required by the RJR‑MacDonald test.

Evidence of marketplace confusion was largely hearsay and insufficient, and any potential damages could be quantified.

The balance of convenience also favoured the defendants because the disputed product represented a significant portion of their sales.

The motion for an interlocutory injunction was dismissed.

The accused brought two applications: one seeking a variation of bail conditions based on an alleged material change in circumstances, and another seeking further disclosure from the Crown.

The disclosure request targeted confidential informant files, occurrence reports, redacted officer notes, and additional police notebook entries.

The court reviewed the law governing informer privilege and disclosure obligations under Stinchcombe, emphasizing that informer privilege is near-absolute and cannot be balanced against other interests except where innocence is at stake.

The court held that the requested informant materials were protected by privilege and that additional materials sought were either irrelevant or outside the investigative file relied upon for the search warrants.

Finding that disclosure had been provided in a reasonably timely and adequate manner, the court concluded that no material change in circumstances justified varying the accused’s bail.

Following a jury trial in a personal injury action where the defendants were found not liable, the defendants sought costs of the proceeding.

The plaintiffs argued that costs should be reduced due to impecuniosity, excessive preparation time, inclusion of disbursements for unused experts and surveillance, and the derivative nature of a Family Law Act claim.

The court held that disbursements for unused experts may still be recoverable if reasonably incurred in preparation for trial, but reduced the defendants’ claim by excluding preparation related to two aborted trials.

The court also considered the plaintiff’s financial hardship as a discretionary factor.

Balancing Rule 57.01 considerations, the court awarded reduced costs to the defendants.

Following dismissal of the defendants’ motion for summary judgment seeking to strike a motor vehicle accident claim as statute-barred, the plaintiffs sought costs on a substantial indemnity basis.

The motion had raised a novel issue concerning the interaction between discoverability and the plaintiffs’ admitted knowledge of the two‑year limitation period prior to its expiry.

The court held that the defendants were justified in bringing the motion given the claim’s lengthy procedural history and the legal uncertainty surrounding the limitation issue.

While the plaintiffs were entitled to costs as the successful party, the court found the hours claimed excessive and rejected substantial indemnity.

Costs were fixed at a reduced amount that was fair and reasonable to the unsuccessful party.

Following the granting of summary judgment in favour of a bank against a defendant borrower, the court considered submissions on costs.

The successful plaintiff sought costs of the action and the summary judgment motion on a partial indemnity basis totaling $21,991.01 inclusive of disbursements and HST.

The defendant accepted that costs were payable but argued the amount was excessive due to the absence of discoveries or cross-examinations and suggested a reduced amount.

The court held that the amount sought was reasonable, noting the need to prepare for several pleaded defences and the lack of duplication of effort in counsel’s work.

Applying the criteria under Rule 57.01, the court awarded the full amount requested.

The Crown sought a ruling on the admissibility of a 911 call and a police statement made by the accused’s spouse concerning a stabbing incident.

Because the couple married after the events but before trial, the spouse was incompetent to testify for the Crown under s. 4(1) of the Canada Evidence Act.

The Crown argued the statements should be admitted under the principled exception to the hearsay rule on the basis of necessity and reliability.

Applying the framework from Hawkins and Couture, the court held that the spousal incompetency rule must remain analytically distinct from hearsay analysis and that admitting the statements would undermine the rule’s underlying rationale of protecting marital harmony and preventing conscription of a spouse into the prosecution.

The proposed evidence was therefore inadmissible.

The defendant police officer brought a motion for summary judgment dismissing a claim arising from a traffic stop.

The self-represented plaintiff alleged that statutory laws such as the Highway Traffic Act did not apply to him because he had not sworn allegiance to the Crown and claimed to be a “human being” rather than a legal person.

The court found the arguments resembled organized pseudolegal commercial argument (OPCA) concepts, including claims of immunity from statute and dual-persona theories.

Relying on authorities including Meads v. Meads and R. v. Klundert, the court held individuals cannot choose whether statutory law applies to them and that such arguments are legally baseless.

Finding no genuine issue requiring a trial, the court granted summary judgment dismissing the action.

The Attorney General sought forfeiture of a residential property under Part III of the Civil Remedies Act, 2001 on the basis that it had been used as a commercial marijuana grow operation.

The respondent had previously pleaded guilty to production of marijuana under the Controlled Drugs and Substances Act and received a fine in criminal proceedings where the property restraint order was lifted and no forfeiture was pursued.

The court found on a balance of probabilities that the property had been used as an instrument of unlawful activity generating profit and that the respondent was not a responsible owner.

However, applying the “interests of justice” exception under the Civil Remedies Act, the court held that forfeiture would be unfair in light of the circumstances surrounding the plea bargain and the respondent’s reasonable belief that his home would not later be subject to forfeiture.

The application for forfeiture was therefore dismissed.

In a proposed class action alleging a price‑fixing conspiracy in the optical disc drive (ODD) market contrary to common law and s. 45 of the Competition Act, the plaintiff sought leave to amend the claim to add eighteen additional corporate defendants.

The defendants opposed the amendment on the basis that limitation periods under the Limitations Act and s. 36(4) of the Competition Act had expired.

The court held that at the pleadings amendment stage it was inappropriate to make definitive findings on discoverability or the expiry of limitation periods where the evidentiary record was incomplete.

Although the plaintiff’s evidence regarding due diligence was thin, the court concluded it would be unfair to refuse the amendment solely on the deficient record.

The motion was adjourned to permit the plaintiff to file additional evidence addressing discoverability and diligence.

The Crown applied under s. 37 of the Canada Evidence Act to prohibit disclosure of counselling notes and patient records seized from the accused during a search warrant execution, arguing disclosure would encroach on the privacy interests of complainants who had shared intimate personal information.

The accused opposed the application, asserting the records were his own work product necessary for the operation of his practice and for making full answer and defence.

The court held that s. 37 was intended to apply to information generated by the state or third parties, not to materials created and owned by the accused.

Relying on principles concerning ownership of medical records articulated by the Supreme Court of Canada, the court concluded the physical records belonged to the creator.

The application to prohibit disclosure was dismissed and the accused was entitled to the return of the seized materials.

The accused was charged with assault and manslaughter in relation to the death of his infant son, who suffered catastrophic brain injuries consistent with violent shaking or acceleration-deceleration trauma.

The Crown’s case was circumstantial and relied on medical evidence, witness testimony, admissions made to acquaintances, and evidence of post-offence conduct.

Expert evidence established that the injuries were non-accidental and occurred within a narrow time window during which the accused was caring for the infant.

Additional circumstantial evidence included prior rough handling of the infant, incriminating statements to a former partner, and flight from the jurisdiction after the incident.

Considering the cumulative effect of the evidence, the court concluded that the only reasonable inference was that the accused inflicted the injuries causing death.

The applicant sought a declaration that a proposed class action brought by a tobacco growers’ marketing board against a tobacco manufacturer was not barred as a released claim under a comprehensive settlement agreement resolving governmental claims relating to tobacco smuggling and unpaid taxes.

The respondents argued that the class action fell within the broad release provisions and that the marketing board was effectively a Crown entity bound by the agreement.

The court applied principles of contractual interpretation governing releases, including contextual interpretation and the rule that general release language is limited to matters within the parties’ contemplation at the time of execution.

It concluded that the settlement agreement addressed governmental tax‑related claims arising from smuggling and did not extend to private claims by growers for price differentials.

The class proceeding was therefore not a released claim by a releasing entity.

The applicant sought a declaration that its gas storage lease was the only valid instrument permitting storage of gas under certain lands after the Court of Appeal held that the respondent’s gas storage lease had terminated but its earlier oil and gas lease remained valid.

The respondent argued that the oil and gas lease, as amended by a unit operation agreement, granted continuing gas storage rights.

The court applied principles of commercial contractual interpretation and considered the relationship between multiple agreements governing the same subject matter.

It held that the later gas storage lease, which contained an entire agreement clause and broader storage provisions, was intended to replace any storage rights that may have existed under the earlier oil and gas lease.

The application was granted and the respondent was found not to possess storage rights under the earlier lease.

In a personal injury action arising from a motor vehicle accident, the defendant brought a motion seeking permission for the insurer’s claims adjuster to attend the plaintiff’s examination for discovery as an observer.

The plaintiff opposed the request, arguing that the insurer was a non-party and that the adjuster’s presence would increase the stress of the discovery process.

The court reviewed principles governing the attendance of non-parties at discoveries and concluded that the categories permitting attendance were not exhaustive and that the court retained discretion to allow attendance where appropriate.

Given the rational reasons advanced by the adjuster and the lack of evidence demonstrating prejudice or intimidation to the plaintiff, the court permitted the adjuster to attend as an observer only.

No costs were awarded.

The defendants brought a motion under Rule 30.04 of the Rules of Civil Procedure seeking production of documents referenced in the plaintiffs’ statement of claim.

The plaintiffs opposed production, arguing the defendants had not shown the documents were necessary to plead a defence.

The court reviewed the history and purpose of Rule 30.04(2) and held that documents specifically referred to in pleadings are incorporated into those pleadings and must be produced for inspection upon request.

The court rejected the argument that necessity for pleading is a precondition to inspection and emphasized the Rules’ objective of full disclosure and avoidance of trial by ambush.

The motion was granted and the defendants’ time to deliver a statement of defence was extended to ten days after delivery of the requested documents.

The accused brought a Charter motion arguing that his arrest for murder was unlawful because police lacked reasonable and probable grounds.

He sought exclusion of evidence obtained incident to arrest under s. 24(2) of the Canadian Charter of Rights and Freedoms.

The court reviewed the information available to police at the time, including reports from family members, alarming text messages, and investigative steps linking the accused to the missing person.

Applying the principles governing lawful arrest and the threshold of reasonable and probable grounds, the court held that the officers acted reasonably and in good faith in rapidly evolving circumstances.

The court concluded that the grounds for arrest met the legal standard and that the evidence obtained incident to arrest was admissible.