Jeffrey Strype

Following the settlement of a tort action arising from a pedestrian struck by a transit bus, the parties disputed the quantum of costs payable to the plaintiff.

The defendant argued the pretrial judge lacked jurisdiction to fix costs and that costs should only be proportional to the $100,000 tort component of the settlement, excluding the $550,000 statutory accident benefits component.

The court declined to recuse itself, finding jurisdiction to fix costs.

The court held that costs should be assessed on the global $650,000 settlement because the defendant directly benefited from the accident benefits settlement by reducing its tort exposure.

The court fixed partial indemnity fees at $300,000, post-settlement fees at $20,000, and disbursements at $125,000, plus HST.

The plaintiffs brought a negligence claim against the school board, principal, and vice-principal for injuries sustained by the student plaintiff during a schoolyard assault by other students.

The plaintiffs alleged that the school failed to properly supervise the students and investigate prior incidents of bullying, which culminated in an assault that caused permanent tinnitus.

The court found that while the school breached the standard of care in failing to investigate a prior incident and losing an accident report, these breaches did not cause the assault, which was a sudden and unexpected event during a hidden game of tackle football.

The claim was dismissed as the plaintiffs failed to establish cause in fact.

In a medical malpractice action, the plaintiffs brought a motion seeking production of the instructing letter and communications between defence counsel and their expert witness.

The plaintiffs argued that a factual assumption the expert was asked to make regarding the onset time of the deceased's chest pain contradicted the defendant doctor's discovery evidence, suggesting improper coaching.

The court dismissed the motion, finding no evidence to support a reasonable suspicion that counsel improperly influenced the expert, and held that litigation privilege continued to protect the communications.

Following a failed motion by the defendants to have their trial costs paid by various litigation loan providers, the loan providers sought their costs of the motion.

The court declined to award costs to the loan providers, finding that the defendants' motion raised a novel issue regarding the enforcement of a costs award against a litigation loan provider and the requirement for court approval of litigation loan agreements.

Given the novelty of the issue, the court exercised its discretion to make no order as to costs.

Following a lengthy trial where the plaintiff was awarded $50,000 but the defendants obtained a costs award of over $3.4 million, the defendants moved to recover those costs from four non-party litigation loan providers who had advanced funds to the plaintiff.

The court declined to order costs against the non-parties, finding that while the loans carried exorbitant interest rates, providing them did not amount to an abuse of process under the 'person of straw' test or the court's inherent jurisdiction.

The court also noted that while litigation loans should be approved by the court in class proceedings, the statutory requirement to do so did not exist at the time the loans were made.

The plaintiff brought a motion to strike the jury notice in a personal injury action arising from a motor vehicle collision, citing delays caused by the COVID-19 pandemic.

The court considered the factors for striking a jury notice before trial, including local court resources, the age of the case, and prejudice to the parties.

The court found that the plaintiff failed to demonstrate a just cause or compelling reason to strike the jury notice at this time.

The motion was dismissed, with costs awarded to the defendant.

The plaintiffs successfully resisted a motion brought by the defendant to the counterclaim's insurer to remove the plaintiffs' lawyer for an alleged conflict of interest.

The plaintiffs sought costs on a substantial indemnity scale against the insurer and the insurer's lawyer personally.

The court declined to award costs against the lawyer personally, finding his conduct was not unreasonable or derelict.

However, the court awarded substantial indemnity costs directly against the non-party insurer, finding the motion was unnecessary, speculative, and caused needless expense to the plaintiff in preserving her choice of counsel.

Costs were fixed at $13,400 net of setoffs.