Ian M. Mair

In this slip and fall action, one defendant sought leave at a case conference to bring a partial summary judgment motion on duty of care and limitation issues.

The plaintiff opposed the request on the basis that the action would continue against other defendants, the moving defendant would still be a trial witness, and credibility and expert issues remained live.

The court held the proposed motion was not appropriate because it would delay trial scheduling, was unlikely to be materially more cost-effective than trial, and risked inconsistent findings on issues intertwined with the main action.

The request to proceed by summary judgment was therefore refused.

This appeal concerned a dog bite injury where the appellants sued the dog owners and the landlords of the property.

The motion judge granted summary judgment to the landlords (Crisols), dismissing the action against them, based on an interpretation of the Dog Owners' Liability Act (DOLA) s. 3(1) that it entirely ousted the Occupiers' Liability Act (OLA) for non-dog owners when a bite occurs on the dog owner's premises.

The Court of Appeal found the motion judge erred in this interpretation, clarifying that DOLA s. 3(1) only determines the liability of the dog owner under DOLA, not precluding OLA or common law claims against other parties.

However, the Court of Appeal upheld the summary judgment dismissal against the landlords on the alternative ground that there was no genuine issue for trial regarding their liability under the OLA or common law, as absentee landlords who had no prior knowledge of the dog's temperament and no responsibility for the dog or its behaviour, and where the injury was not causally linked to any failure in property maintenance or repair.

The TEC defendants brought a motion to admit evidence from the criminal trial of Christopher Husbands (who committed a mass shooting at the Eaton Centre) into the upcoming civil trial, and to strike the plaintiffs' jury notices.

The defendants argued the evidence was necessary to establish Husbands' mindset and the spontaneity of his actions.

The court dismissed the motion, finding that Husbands' specific mindset and reasons for the shooting were not relevant to the core issue of whether the defendants breached their duty of care regarding security under the Occupiers' Liability Act.

As the criminal evidence was not admitted, the court also declined to strike the jury notices, finding that a jury is capable of handling the anticipated expert evidence on security standards.

Capital Sewer Servicing Inc. appealed a Superior Court decision that found it liable to indemnify and defend Crosslinx Transit Solutions Constructors under a subcontract.

The dispute arose from property damage claims by third parties during a light rail transit project.

Capital argued that Crosslinx, by undertaking to provide wrap-up insurance, had assumed the risk of such damages, and that the "hold harmless" clause did not include a duty to defend.

The Court of Appeal dismissed the appeal, affirming that a covenant to insure does not, as a matter of law, automatically transfer risk.

The court emphasized that contractual intent is derived from a holistic reading of the agreement, and found the subcontract's express indemnity provisions, coupled with the mutual intent clause, clearly imposed the obligation on Capital.

The "hold harmless" provision was also found to include a duty to defend, given the broad definition of "Claims" in the contract.

The plaintiffs appealed case conference orders directing that the defendants' liability be determined by summary judgment motions involving viva voce cross-examination of five expert witnesses.

The Divisional Court held that while a case conference judge has jurisdiction to make orders involving powers under Rule 20.04, such jurisdiction should be exercised sparingly.

The court found the case conference judge erred in principle by making the orders without an evidentiary record and by inverting the proper analysis.

The appeal was allowed, the orders were set aside, and the liability case against the Eaton Centre defendants was directed to proceed to trial.

A case conference was held to schedule summary judgment motions brought by the Toronto Police Services Board and the Eaton Centre defendants.

The plaintiffs opposed the motions and sought a 14 to 17-day hearing to accommodate viva voce cross-examination of experts, arguing for a trial instead.

The court rejected the plaintiffs' proposed schedule as contrary to the purpose of summary judgment, which is meant to be a faster process.

The court scheduled a 6-day hearing for May 2021 and set a timetable for the exchange of materials and cross-examinations.

The defendants, the Toronto Police Services Board and the Eaton Centre, sought to schedule summary judgment motions to determine their liability in four related civil actions arising from a 2012 shooting at the Toronto Eaton Centre.

The plaintiffs opposed the motions, arguing they were entitled to a full jury trial on all issues.

The court held that there is no absolute right to a civil trial and that a summary judgment process is a legitimate alternative.

Finding that the liability issues would likely turn on legal concepts and expert evidence rather than disputed facts, the court directed that the summary judgment motions be scheduled.

The plaintiff brought a motion to strike the jury and proceed judge-alone after defence counsel referred to the plaintiff's case as a 'cash grab' during closing submissions.

The plaintiff argued the comment was inflammatory and implied dishonesty.

The defendants opposed the motion and argued the plaintiff also made emotional appeals using analogies.

The court found the 'cash grab' comment was prejudicial but concluded a correcting instruction would be sufficient to cure the prejudice.

The motion to strike the jury was dismissed, and the court declined to give correcting instructions regarding the plaintiff's analogies.

The defendants brought a motion for leave under s. 12 of the Evidence Act to call more than three expert witnesses, specifically seeking to file a report from a second physiatrist.

The plaintiff opposed the motion on the basis that the second physiatrist would provide redundant evidence identical to that of the defendants' first physiatrist.

The court denied leave, finding that calling multiple experts with the same specialty incurs unnecessary expense and is not necessary to assist the trier of fact.

The defendants brought a threshold motion following a jury trial, arguing the plaintiff did not sustain a permanent and serious impairment of an important physical, mental or psychological function from a 2014 motor vehicle accident.

The plaintiff suffered chronic pain that prevented her from pursuing a career as a police officer, leading the jury to award $175,000 for loss of future income and $65,000 for pain and suffering.

The court applied the Meyer v. Bright test and found the plaintiff's chronic pain constituted a permanent, serious impairment of an important function, dismissing the defendants' motion.

The defendants brought a motion in the middle of a jury trial for leave to file a new expert report from a vocational rehabilitation expert.

The plaintiff opposed the motion, arguing it would be highly prejudicial as she had already closed her case and her experts had testified.

The court dismissed the motion, finding that allowing the late report would be unfair and prejudicial, an adjournment was impossible due to the jury, and the defendants had long known the basis of the plaintiff's future income loss claim.