Jame Pedro

The defendant vehicle owner moved for summary judgment to determine whether her automobile insurer or the plaintiff's insurer was responsible for payment of a settlement arising from a motor vehicle accident.

The vehicle had been purchased by the moving party for her son, who was unlicensed, and left entirely in his possession and control.

The court found that the moving party gave express consent to possession and implied consent to operate the vehicle on the highway, as it was objectively and subjectively foreseeable that her son would drive it despite any prohibition.

Any driving prohibition was ineffective and unenforced.

The moving party was found vicariously liable under s. 192 of the Highway Traffic Act, and her insurer was ordered to pay the settlement.

The Court of Appeal for Ontario issued a costs endorsement following an allowed appeal.

The appellant sought $18,760 in partial indemnity costs for the proceeding below, having filed an offer to settle for dismissal of the motion without costs.

The respondents proposed $6,000.

The court considered the time spent by both parties and fixed costs at $15,000, all-inclusive, to be paid by the respondents to the appellant for the lower court proceedings.

The Estate of Ivo Lepan appealed a motion judge's order that found the Estate had waived non-pecuniary damages claims related to statutory accident benefits and tort settlements.

The Court of Appeal found that the motion judge misapprehended the pleading and counsel's statements, concluding that the Estate had only given up pecuniary claims related to those settlements, not non-pecuniary damages.

The court emphasized that the amendments to the Statement of Claim were intended to address the issue of counsel disqualification, not to waive broader non-pecuniary claims.

The appeal was allowed, and the litigation was directed to proceed on the merits.

The plaintiff brought a motion to strike the defendant's jury notice due to substantial delays in scheduling civil jury trials caused by the COVID-19 pandemic.

The action, arising from a 2006 motor vehicle accident, had been set down for trial since 2015.

The court granted the motion, finding that the anticipated delay of at least three more years for a jury trial constituted prejudice and that justice to the parties would be better served by proceeding with a judge-alone trial.

The plaintiff brought a motion to strike the defendants' jury notice in a personal injury action.

Due to the COVID-19 pandemic, civil jury trials in the Central East Region were suspended until well into 2022.

The court granted the motion, finding that the prejudice to the plaintiff caused by further delay outweighed the defendants' right to a jury trial, especially given the age of the case and previous adjournments.

At a case conference, plaintiff's counsel requested that the upcoming trial date be vacated because he had lost contact with his client and intended to bring a motion to be removed as solicitor of record.

The defendants opposed any further delay, noting they had held off bringing a motion to dismiss.

The court refused to vacate the trial date, directing that the defendants could bring their motion to dismiss at the outset of the trial, at which point plaintiff's counsel could explain his predicament to the trial judge.

This motion addressed whether the Defendants were obliged to provide "foundational information" for an expert report served to the Plaintiff, pursuant to an undertaking.

The Plaintiff sought various documents related to the expert's instructions, assumptions, facts relied upon, and materials provided, as well as prior drafts and correspondence.

The court ruled that serving an expert report at the discovery stage waives litigation privilege over the foundational information (instructions, assumptions, facts, and materials provided to the expert), making it immediately disclosable.

However, draft reports and communications between counsel and the expert remain privileged unless there are reasonable grounds to suspect interference with the expert's independence.

The Plaintiff was largely successful in obtaining the foundational information, and costs were awarded in their favour.

The defendants brought a motion to compel the plaintiff to attend and complete a defence neuropsychological examination.

The plaintiff, who suffered catastrophic impairment in a motor vehicle accident, had attempted the assessment on three occasions but was unable to complete it due to severe headaches, fatigue, and psychological distress.

The court dismissed the motion, finding that the plaintiff was not malingering and that compelling further testing would be futile and pose an undue risk of self-harm.

The court also adjourned the pre-trial to allow the defendants time to review newly filed expert reports.

A law firm (the Firm) sought an order for equitable subrogation to the Toronto-Dominion Bank's (TD) first mortgage interest.

The Firm had paid insurance proceeds to TD after erroneously disbursing them to the mortgagors, Yousefie and his spouse, without including TD as a co-payee, despite instructions.

The property had been sold under power of sale, and the Firm sought priority over TD's equitable mortgage and three other registered mortgagees in the surplus funds.

The court dismissed the Firm's motion, finding that the criteria for equitable subrogation were not met, as the Firm did not pay off the mortgage at the mortgagor's request with the intention of becoming a first mortgagee, nor did it fully discharge the mortgagors' obligation to TD.

Furthermore, the Firm had caused its own loss, TD was not unjustly enriched, and the Firm had alternate remedies.

Granting subrogation would prejudice the other mortgagees who had bargained for their priority.

The plaintiff, Sharon Mary Irvine, suffered a wrist fracture after falling on the defendants' property.

The fall occurred while she was attempting to step onto a rear porch with an unusually high step, exacerbated by the presence of the defendants' unrestrained pit bull, Tazzie, which was required to be leashed and muzzled under the Dog Owners' Liability Act.

The court found the defendants negligent under the Occupiers' Liability Act for the unsafe step height and for breaching the Dog Owners' Liability Act.

However, the plaintiff was found contributorily negligent (35%) because the high step was plain and obvious, it was daylight, and she had other options for entry or assistance.

Liability was apportioned 65% to the defendants and 35% to the plaintiff, with damages agreed at $31,500.