James Kennedy Nathan Fireman

At a case conference in a proposed class action regarding denied trip cancellation benefits due to COVID-19, the court determined the sequencing of a proposed Rule 21 motion by the defendant bank and the plaintiff's certification motion.

The court held that hearing the Rule 21 motion prior to certification would not substantially narrow the issues, as the substantive claims against the co-defendant insurer would remain identical.

Exercising its discretion under section 12 of the Class Proceedings Act, the court ordered the Rule 21 motion to be heard at the same time as the certification motion.

The defendants Xytex Corporation, Xytex Cryo International Inc., Mary Hartley, and Dr. James Todd Spradlin brought a motion to dismiss the action based on res judicata, arguing that the plaintiffs' identical action in Georgia had already been dismissed on the merits.

The plaintiffs opposed, contending the Georgia decision was not on the merits due to a procedural dismissal of their appeal.

The court found that the Georgia Superior Court's dismissal was a decision on the merits, and the subsequent procedural dismissal of the appeal did not negate its finality.

Applying the principles of res judicata, the court dismissed the plaintiffs' action in Ontario, finding no genuine issue requiring a trial and no special circumstances to permit re-litigation.

Following a jury verdict awarding the plaintiff damages for a motor vehicle accident, the defendants brought a threshold motion arguing the plaintiff's injuries did not meet the statutory exceptions under the Insurance Act.

The core issue was whether the accident caused the plaintiff's left knee injury, given his preexisting osteoarthritis.

The court preferred the plaintiff's expert evidence that the minor force of the accident converted his asymptomatic arthritis into symptomatic arthritis.

The court found the plaintiff met his burden of proof on causation for the knee injury, which satisfied the threshold requirements.

The defendants' motion was dismissed.

The moving defendants sought summary judgment dismissing a personal injury action arising from a motor vehicle collision.

The motion judge considered the enhanced summary judgment powers under Rule 20 of the Rules of Civil Procedure and applied the “full appreciation test” articulated in Combined Air Mechanical Services v. Flesch.

Evidence included affidavits, cross‑examinations, and a prior guilty plea by one defendant to disobeying a red traffic signal.

The court held that the plea and consistent witness evidence established that the responding driver entered the intersection against a red light and was solely responsible for the collision.

Finding no genuine issue requiring a trial and no real chance of success against the moving defendants, the court granted summary judgment dismissing the action against them.

The plaintiffs were involved in a motor vehicle accident and initially named the municipality as a defendant in their notice of action.

They subsequently filed a statement of claim and simultaneously filed a notice of discontinuance against the municipality.

After the limitation period expired, the plaintiffs sought to add the municipality back as a defendant, citing the discoverability principle upon learning that a dangerous shoulder drop-off may have contributed to the accident.

The motion judge declared the notice of discontinuance invalid but alternatively allowed the municipality to be added as a defendant.

The Court of Appeal held that the notice of discontinuance was valid, but upheld the motion judge's discretionary decision to add the municipality as a defendant based on the discoverability principle.