James Evan Sterling Allin

The plaintiff, Marnic Geldhof, brought a motion to compel a representative of the defendant Economical Mutual Insurance to reattend an examination for discovery and answer refused questions.

The defendants resisted, claiming litigation/settlement privilege over the information.

The core issue was whether communications, including a "without prejudice" letter, lost their privilege when the plaintiff alleged they formed a contract.

The court held that the plaintiff was entitled to question the defendant's representative about communications related to the terms and existence of the alleged contract, but general investigative notes and file contents remained privileged.

The motion was partially granted.

The applicants sought costs of $18,000 on a partial indemnity basis, or alternatively no costs, following an application where they were largely successful in being removed as trustees of a Henson trust but unsuccessful in seeking directions to sell a farm.

The respondent sought partial indemnity costs of $30,555.90 payable by the applicants from their shares of the estate.

The court found there was divided success and ordered that no costs be awarded.

The applicants, estate trustees of Norman Zock's estate and trustees of the Henson Trust for Stephen Wayne Zock, sought removal as trustees of the Discretionary Trust and court direction to sell the family farm held in the Norman Zock Farm Trust.

The respondent beneficiary, Stephen Wayne Zock, opposed the farm sale and requested that one trustee (Norma) continue.

The court granted Norma Lynn Pierce's removal as trustee of the Discretionary Trust after passing accounts, but declined to remove Gary Zock, imposing specific conditions for his temporary continuation as trustee.

The court also denied the request to sell the farm, finding that the preconditions for sale, specifically Stephen's incapacity to manage personal care or inability to maintain the home to a habitable standard, were not met based on the evidence presented.

The plaintiff, a former retail sales representative, brought an action for wrongful dismissal and mental distress under simplified procedure.

The action settled on the first day of trial for $35,000 in damages.

The parties could not agree on costs, leading to this endorsement.

The plaintiff sought substantial indemnity costs based on Rule 49.10, claiming the settlement was a "judgment as favourable." The court rejected this, finding Rule 49.10 inapplicable as the offer was accepted before trial and no judgment was rendered.

The court fixed costs on a partial indemnity basis, considering factors under Rule 57.01, including the principle of indemnity, complexity, amount recovered, proportionality, and the defendant's late acceptance of the offer.

The court reduced the plaintiff's claimed fees and disbursements, particularly for photocopying and time spent on the costs issue itself, and awarded $21,244 in total costs.

The plaintiffs sought summary judgment against Stewart Title Guaranty Company for $223,555.74, alleging coverage under their title insurance policy due to structural defects in their home that violated the Ontario Building Code and rendered the property unmarketable.

The court found that while the property's title was unmarketable under Covered Title Risk (CTR) clause 19, coverage was excluded by exclusion clause 7, which pertained to structures not built in accordance with applicable building codes.

The court also found no coverage under CTR clause 20, as there was no evidence of a governmental authority forcing remedial work.

Consequently, the plaintiffs' motion for summary judgment against Stewart Title was dismissed.

The defendants moved to dismiss the plaintiffs' action for inordinate and inexcusable delay, spanning 22 years.

The litigation arose from a business partnership dissolution and minority shareholder dispute from 1993, involving allegations of oppression, breach of fiduciary duty, and fraudulent manipulation of accounts.

The court applied the Langenecker v. Sauvé test under Rule 24.01, finding the delay inordinate and inexcusable, particularly due to the plaintiffs' failure to advance the case and the loss of their entire file, including critical financial documentation and the death of the primary plaintiff and key accountants.

The court concluded that a fair trial was no longer possible due to both presumed and actual prejudice to the defendants.

The plaintiffs' action was dismissed for delay.

On a motion by a defendant in the main action and plaintiff in a companion contribution and indemnity action, the court considered whether two construction-related proceedings arising from a leaky warehouse roof should be tried together or consecutively.

Applying the Rule 6.01 gateway criteria and the factors identified in 1014864 Ontario Ltd. v. 1721789 Ontario Inc., the court found the actions arose from the same factual matrix, involved overlapping causation issues, and created a real risk of inconsistent factual findings if heard separately.

The court declined consolidation but ordered that the actions be tried one immediately following the other, with the main action proceeding first and common witnesses to be examined once subject to the trial judge's direction.

Costs were left for further written submissions.

Following a trial regarding the closure of a church and distribution of its assets, the court determined the distribution of funds held in court to selected charities and assessed costs.

The court awarded the respondents substantial indemnity costs of $60,000 due to the reprehensible conduct of one of the applicants, who was found in breach of trust.

The court ordered $20,000 of the costs to be paid from the funds held in court, with the remaining $40,000 apportioned between the applicants, holding the primary litigator responsible for the substantial indemnity portion.

The applicant sought statutory accident benefits, including caregiver benefits and medical expenses, alleging that a 1994 motor vehicle accident caused a disc herniation in 1996.

The arbitrator found that the applicant's evidence regarding the onset of her disability was unsupported by contemporary medical documentation, which indicated the disability began at the time of the herniation, more than two years after the accident.

Furthermore, expert medical evidence failed to establish a causal link between the 1994 accident and the 1996 disc herniation.

All claims for benefits, expenses, and a special award were denied.

The insurer requested a correction to a previous arbitration order regarding the calculation of Loss of Earning Capacity (LEC) benefits.

The arbitrator found jurisdiction under the Statutory Powers and Procedure Act and the Dispute Resolution Practice Code to correct the technical calculation error, which had failed to deduct UI, CPP, and income tax from the pre-accident income.

The LEC benefits were recalculated and reduced accordingly.

The arbitrator also determined that the insured was entitled to her expenses of the arbitration process, as she was largely successful in establishing her entitlement to the LEC benefit and the insurer had not made an offer to settle.

Following a settlement of disputed claims for statutory accident benefits, the applicant sought an assessment of his legal expenses.

The insurer agreed the applicant was entitled to expenses but disputed the amount, specifically the hourly rate of the senior counsel, the rate and hours of the law clerk, and certain disbursements including accountant's reports.

The arbitrator allowed the senior counsel's rate of $150 per hour, the law clerk's rate of $45 per hour, and most of the disbursements, awarding a total of $19,449.35 in fees and disbursements.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits.

The parties disputed the calculation of income replacement benefits (IRBs) and loss of earning capacity benefits (LECBs).

The arbitrator held that the employer's CPP contributions should not be included in the applicant's income for calculating IRBs.

The arbitrator also found that the insurer was entitled to assess the applicant's LECBs based on the Residual Earning Capacity Designated Assessment Centre (REC DAC) report, as it carries more weight than independent medical reports at this stage.

Finally, the arbitrator ruled that the insurer could not deduct prior disability payments made by another insurer, as the settlement agreement only permitted the deduction of the new settlement funds.

The applicant was injured in a motor vehicle accident and claimed statutory accident benefits, including a loss of earning capacity (LEC) benefit, housekeeping expenses, and shop assistant expenses.

The arbitrator determined the applicant's pre-accident earning capacity based on her reported income and unreported tips, and found she had no residual earning capacity due to a mild to moderate brain injury.

The claim for a shop assistant was dismissed as an unreasonable rehabilitation expense, while the claim for housekeeping expenses was allowed.

The applicant's request for a special award was dismissed.

In a dispute over statutory accident benefits, the parties sought preliminary rulings on the production of documents.

The arbitrator ordered the insurer to produce draft reports and clinical notes of IME and DAC assessors, finding that such statutorily mandated assessments are not protected by litigation privilege.

The arbitrator also ordered the insurer to produce its complete accident benefits file, including adjusters' notes and reserve information, up to the date the applicant applied for mediation, applying the dominant purpose test.

The insurer was further ordered to produce all surveillance evidence if it intended to rely on any part of it.

The applicant's requests for the insurer's policy manuals and legal opinions were denied.

Finally, the applicant's Canada Pension Plan file was ordered produced as it was relevant to her medical condition.

The applicant was injured in a motor vehicle accident and claimed accident benefits.

The parties entered into a settlement agreement, but a dispute arose over the interpretation of a term regarding ongoing payment for a shop assistant and housekeeping expenses.

The arbitrator held that the settlement agreement implicitly required the applicant to demonstrate continuing entitlement to the benefits and to provide reasonable verification of her expenses, rather than providing a 'blank cheque' for life.

The insurer sought production of a transcript of the applicant's examination for discovery from a related civil action.

The applicant refused consent, relying on the implied undertaking rule.

The arbitrator held that under Rule 30.1.01 of the Rules of Civil Procedure, only a court has the authority to grant relief from the implied undertaking rule.

The arbitrator concluded that the tribunal lacked jurisdiction to order the production of the transcript, and the insurer's request was denied.

The applicant sought expenses following an arbitration decision that awarded her income replacement benefits.

The insurer disputed the amounts claimed for legal fees and accountants' services as excessive.

The arbitrator assessed the legal fees based on a reasonable ratio of preparation time to hearing time, allowing 24 hours at $125 per hour for the original bill.

The supplementary legal bill was reduced as excessive.

The arbitrator also reduced the claimed disbursements for two accounting firms, noting that one accountant did not testify and part of their report dealt with matters not in dispute.

The applicant was awarded a total of $6,427.07 in expenses.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits.

A dispute arose regarding the calculation of her income replacement benefits.

The arbitrator held that draws taken from the family business, which were declared as dividends for tax purposes, formed part of the applicant's regular remuneration and should be included in her gross annual income.

The arbitrator also held that unemployment insurance premiums should not be deducted from her gross annual income because she was exempt from paying them as a joint owner of the business.

The Applicant was injured in a motor vehicle accident and applied for arbitration following a dispute over income replacement benefits.

Shortly before the hearing, the parties negotiated a settlement.

The Insurer subsequently refused to pay the Applicant's legal fees, arguing they were not part of the settlement and that the settlement was void for mistake, uncertainty, and failure to comply with the Settlement Regulation.

The Arbitrator found that the correspondence clearly established an objective agreement to pay expenses, including legal fees.

The Arbitrator held that the Insurer could not rely on its own failure to provide the required settlement disclosure notice to invalidate the agreement.

The settlement was declared binding, and the Insurer was ordered to pay a $7,500 special award for unreasonably delaying payment and attempting to evade the settlement.

The applicant was injured in a motor vehicle accident and claimed ongoing weekly and lump sum education disability benefits under the Statutory Accident Benefits Schedule.

She argued that her back injuries prevented her from pursuing her intended career as a nurse, constituting a substantial inability to continue her education.

The arbitrator held that the Schedule does not compensate for loss of future career opportunity and found she was able to continue her post-secondary education in other fields.

However, the arbitrator found she suffered a partial inability to carry on a normal life for a limited period due to restrictions on her mobility activities, awarding weekly benefits for that closed period.