James Leslie Vigmond

This decision concerns the interpretation of a contingency fee retainer agreement between Aylmer Meat Packers Inc. and Richard Walter Clare (the "Client") and their former law firm, Harrison Pensa LLP ("HP").

The court found that HP was not entitled to a contingency fee on a judgment obtained by the Client on appeal after new counsel was retained.

The agreement only entitled HP to a contingency fee on damages recovered prior to or at trial.

The court also rejected HP’s claim for compensation under quantum meruit, holding that the enforceable agreement governed the parties’ rights and obligations.

The defendant brought a motion seeking to compel the plaintiff to attend a second psychiatric medical examination and to extend the time for serving the expert report.

The court dismissed the motion, finding that a change in counsel and dissatisfaction with a previously retained expert's communication style at a prior trial were not sufficient reasons to order a further examination.

The court emphasized that trial fairness did not require a new examination, especially given the potential for delay to the impending trial date.

The respondent, Harrison Pensa LLP, brought a motion to transfer an application from Toronto to London.

The application concerned a dispute over a contingency fee agreement between Aylmer Meat Packers Inc. and Richard Walter Clare (applicants) and Harrison Pensa LLP.

The court considered the factors under Rule 13.1.02(2) of the Rules of Civil Procedure, finding a significant connection to London, where the contingency fee agreement was drafted and the related trial took place.

The court determined that London was a "significantly better" venue and granted the motion to transfer the proceeding to London.

The appellant, Leslie J. O’Connor, appealed a trial judge's decision to discharge a jury and render judgment in favour of the respondent, Peter St. Marthe, following a motor vehicle accident.

The appeal centered on whether the trial judge erred in ruling that counsel improperly elicited inadmissible opinion evidence from a non-party expert (Dr. Mussett) regarding the respondent's ability to work, and whether the judge erred in discharging the jury.

The Court of Appeal upheld the trial judge's decision, finding Dr. Mussett's opinion on employability was inadmissible as it went beyond the scope of his original assessment and was highly prejudicial.

The court also found no error in discharging the jury, given the significant impact of the inadmissible evidence and the trial judge's assessment of trial fairness.

The plaintiff suffered a traumatic brain injury after being hit by a golf ball hit by the defendant.

The plaintiff brought a motion to increase the damages claimed and to strike the jury notice due to anticipated trial delays caused by the COVID-19 pandemic.

The court granted the amendment to damages on consent.

However, the court dismissed the motion to strike the jury notice, adopting a 'wait and see' approach to determine if the region's new civil trial protocol could accommodate urgent civil jury trials, without prejudice to the plaintiff's right to renew the motion later.

In a medical malpractice action, the defendant brought a motion to disqualify the plaintiffs' expert epidemiologist, Dr. Michael Freeman.

The court granted the motion, finding that Dr. Freeman lacked specialized knowledge in the specific medical areas (metabolics and neurology) relevant to the causation question.

His "comparative risk" methodology was deemed outside the mainstream study of epidemiology for specific causation, and his reports indicated a lack of objectivity by primarily critiquing other experts rather than offering independent analysis within his own expertise.

The court also noted that his proposed evidence was not necessary, as the plaintiffs' other expert covered the same points.

The defendant in a medical malpractice action brought a motion at the outset of trial to strike the plaintiffs' jury notice.

The defendant argued that the complex scientific evidence relating to the minor plaintiff's rare metabolic disorder and the issue of causation made the case unsuitable for a jury.

Applying the principles from Kempf v. Nguyen, the court declined to strike the jury notice prior to trial, opting instead for the preferred 'wait and see' approach.

The motion was dismissed with leave to renew after the evidence is completed.

The defendant brought a motion to transfer the action from Barrie to Toronto, arguing that all parties, the motor vehicle accident, and the plaintiff's medical treatment were predominantly located in Toronto, with no substantial connection to Barrie other than the plaintiffs' counsel's practice location.

The plaintiffs opposed, asserting that remaining in Barrie would avoid significant delays and be more cost-effective.

The court granted the transfer, finding that Toronto was a significantly better venue based on a holistic application of the factors under Rule 13.1.02(2)(b) of the Rules of Civil Procedure, emphasizing the convenience of parties and witnesses, the location of events and damages, and the local community's interest.

The appellant appealed a costs award following a jury trial for a motor vehicle accident.

The trial judge had added notional pre-judgment interest to the jury's general damages award before applying the statutory deductible, which resulted in the plaintiff beating the defendant's offer to settle and triggering the costs consequences of Rule 49.10.

The Court of Appeal dismissed the appeal, confirming that notional pre-judgment interest should be added to the general damages award for the purpose of determining whether a judgment is more favourable than an offer to settle.

The Court also found no error in the trial judge's holistic consideration of the offers to settle under Rule 49.13.

The plaintiffs brought a motion for leave to amend their statement of claim to add a corporate defendant alleged to own the property where an ATV accident occurred.

The proposed amendment was sought after the expiry of the two‑year limitation period under the Limitations Act, 2002.

The court considered whether the discoverability rule under s. 5 of the Act postponed the running of the limitation period because the plaintiffs did not know, and could not reasonably have known through due diligence, that the accident occurred on land owned by the proposed defendant.

The court found the plaintiffs had undertaken significant investigative steps after the accident and reasonably believed another party owned the land until survey evidence disclosed otherwise.

The court concluded that a letter from defence counsel denying ownership constituted the triggering event requiring renewed diligence and that the plaintiffs acted within two years of that event.

Leave was therefore granted to add the proposed defendant, without prejudice to it to plead a limitation defence.

The plaintiff brought a motion to strike two paragraphs from the defendants' Statement of Defence in an action for professional negligence against his insurance brokers.

The impugned paragraphs pleaded statistical data regarding the percentage of Ontario motorists who opted for $1,000,000 in third-party liability coverage.

The court found that the statistical data was not a material fact necessary for the defence and violated Rule 25.06(1) by pleading evidence rather than facts.

The motion was granted and the paragraphs were struck.

The appellants appealed a jury verdict in a fatal motor vehicle accident action, arguing the trial judge erred in his instructions on the duty of a driver entering a highway, failed to instruct the jury on the range of damages for loss of guidance, care, and companionship, and that the damages awarded were excessive.

The Court of Appeal dismissed the appeal, noting the appellants' failure to object to the jury charge at trial.

The Court held that while the damages awarded were high, they were not so inordinately high as to warrant appellate intervention.

The appellants appealed a trial judge's decision to invoke Rule 52.08 of the Rules of Civil Procedure to overturn a jury's finding of negligence against the respondent doctor.

The jury had found that the respondent's delay in transferring the appellant to another facility caused his paraplegia.

The Court of Appeal upheld the trial judge's decision, finding that while the respondent breached the standard of care by delaying the transfer, the appellants failed to adduce any expert evidence proving that an earlier transfer would have resulted in a timely diagnosis and surgery to prevent the paralysis.

The appeal was dismissed.

The appellant appealed an order refusing leave to amend her Statement of Claim to add her insurer as a defendant.

The proposed amendment sought a determination of catastrophic impairment.

The motion judge held that while multiple applications for catastrophic impairment are not strictly precluded under s. 40(4) of the Statutory Accident Benefits Schedule, a subsequent application under the same sub-paragraph requires evidence of a material change in circumstances.

Finding no such change, the motion judge refused the amendment.

The Court of Appeal agreed with the motion judge's interpretation and found no error in her decision to refuse the amendment based on the record before her.

The appeal was dismissed.

The Ontario Trial Lawyers Association (OTLA) brought a motion for leave to intervene as a friend of the court in an application for judicial review concerning the interpretation of catastrophic impairment.

The applicant opposed the motion, arguing OTLA's interest was indirect and the case involved straightforward statutory interpretation.

The court granted the motion, finding that OTLA had expertise, could provide a broader perspective on the legislative scheme, and its participation would not prejudice the parties.

Leave to intervene was granted subject to conditions.

The insured was left with quadriplegia following an automobile accident in Jamaica caused by an underinsured motorist.

The insured sought coverage under the underinsured motorist endorsement of their standard Ontario Automobile Policy.

The insurer denied coverage, relying on the territorial limitation in the main policy.

The motion judge found the endorsement ambiguous and ruled in favour of the insured.

On appeal, the Court of Appeal held that the endorsement clearly incorporated the territorial limitation of the main policy.

The appeal was allowed, and the court declared that the endorsement did not provide coverage for the accident in Jamaica.

The appellant appealed the trial judge's decision that he had not established a permanent and serious impairment of an important physical, mental or psychological function resulting from a motor vehicle accident under s. 267.5(5) of the Insurance Act.

The appellant argued the trial judge erred in her consideration of future events.

The Court of Appeal dismissed the appeal, finding that the trial judge did consider future events but properly concluded the evidence was mere conjecture, and her conclusion that the statutory threshold was not met was supported by the evidence.

The appellant appealed a trial judgment finding that the respondent suffered a 'serious impairment' under s. 267.5(5)(b) of the Insurance Act following a motor vehicle accident.

The appellant argued that the trial judge misapplied the threshold test by relying on a previous appellate endorsement that allegedly lowered the standard to only require an effect on the enjoyment of life.

The Court of Appeal clarified that its previous endorsement did not modify the established test, which requires a substantial interference with the ability to perform usual daily activities or regular employment.

Finding no error in the trial judge's application of the law or appreciation of the evidence, the appeal was dismissed.

The plaintiff was seriously injured when her bicycle collided with a tow truck driven by an employee in the course of his employment.

The tow truck was owned by the employer.

The employer claimed 'protected defendant' status under s. 267.5 of the Insurance Act, which limits the liability of motor vehicle owners.

The Court of Appeal held that while the employer was protected in its capacity as the vehicle's owner, it was not protected from vicarious liability in its capacity as the driver's employer.

The appeal was dismissed.

The respondent was injured in a motor vehicle accident and settled her damages for over $2.5 million.

The at-fault driver had $300,000 in third-party limits and a $1,000,000 personal liability umbrella policy.

The respondent's insurer sought to deduct both amounts from her $500,000 OPCF 44R Family Protection Endorsement.

The Court of Appeal held that the umbrella policy did not constitute 'motor vehicle liability insurance' under the endorsement's definition.

Therefore, the insurer could only deduct the $300,000 third-party limits, entitling the respondent to $200,000.