James C. Simmons

The defendant brought a motion for leave to bring a motion after the action was set down for trial, seeking to compel the plaintiff to attend an independent neuropsychological examination.

The plaintiff opposed the motion, arguing that the defendant had sufficient time to arrange the assessment and that her condition was well-documented.

The court granted leave, finding that the plaintiff's late service of a new neuropsychological report constituted a substantial and unexpected change in circumstances.

Applying the factors for ordering a further medical examination, the court held that the defendant was entitled to respond to the plaintiff's expert report with a matching specialty report to ensure trial fairness.

The plaintiff was ordered to attend the examination, and the defendant was granted an extension of time to serve the resulting report.

Following dismissal of a motion seeking removal of the plaintiff’s counsel from the record and allegations impugning counsel’s professional integrity, the plaintiff sought costs of the motion.

The defendant argued the court was functus and that costs were disproportionate.

The court rejected those arguments, holding that the earlier endorsement expressly contemplated a later determination of costs.

Given that the motion alleged serious misconduct against opposing counsel without evidentiary foundation, the court held that substantial indemnity costs were warranted as a punitive response.

Costs were fixed on a substantial indemnity basis in the amount of $50,537.03.

The plaintiff sustained injuries in a motor vehicle collision with a train and commenced two separate actions.

She brought a motion to consolidate the two actions.

The defendant municipality and a third party opposed consolidation, arguing it would cause prejudice by exposing them to new crossclaims and affecting a limitation period defence.

The court declined to consolidate the actions due to the potential prejudice, but ordered that the two actions be tried together to avoid multiplicity of proceedings.

Following a successful application declaring that an insurer owed a duty to defend, the applicant sought costs of $23,228.50 on a substantial indemnity basis.

The respondent did not dispute the applicant’s responsibility to fund its own defence but challenged the number of hours claimed.

The court considered the principles governing costs under Rule 57 and the Court of Appeal guidance emphasizing fairness and reasonableness rather than full indemnification.

The court found some duplication of effort and reduced the claimed amount.

Costs were fixed at $20,000 inclusive of HST plus disbursements.

The applicant sought a declaration that the respondent insurer owed it a duty to defend and indemnify in a slip-and-fall action brought by customers allegedly injured in the applicant’s store.

The applicant had been named as an additional insured under a contractor’s commercial general liability policy covering janitorial operations.

The insurer refused to defend, arguing the pleadings alleged independent negligence by the occupier and that issue estoppel applied because earlier litigation had rejected contractual indemnity claims against the contractor.

The court held that issue estoppel did not apply because the earlier proceedings addressed contractual indemnity rather than the insurer’s duty to defend.

Applying the pleadings rule, the court concluded the factual allegations potentially fell within policy coverage because the incident arose from janitorial operations, thereby triggering the duty to defend.

The insurer was ordered to indemnify the applicant for defence costs incurred in the underlying action.