Jillian Van Allen

The plaintiff, a process serving and litigation loan company, brought a motion for substituted service on several unserved defendants who had defaulted on litigation loans.

Alternatively, the plaintiff sought a Norwich Order compelling the co-defendant, the lawyer who represented the unserved defendants and negotiated the loans, to disclose their addresses.

The court dismissed the request for substituted service as premature because the defendants' whereabouts were unknown.

However, the court granted the Norwich Order, finding that the clients' addresses were administrative information not protected by solicitor-client privilege, and ordered the lawyer to disclose them.

The applicant sought to change a final order regarding access to his five-year-old daughter, requesting immediate full-day unsupervised access.

The respondent opposed due to concerns about the applicant's alcohol use and parenting skills, proposing supervised access.

The court ordered a graduated resumption of access, starting with four hours weekly, increasing over time, with initial 30-minute supervision by the respondent at drop-off, and all visits to occur in a public place without the applicant driving the child.

The court emphasized the child's best interests and the applicant's past conduct.

The appellant appealed a motion judge's decision dismissing her negligence action as statute-barred under the Limitations Act, 2002.

The appellant was injured by a physiotherapist on August 12, 2011, but did not know his correct name at the time.

The motion judge found that the appellant could have reasonably discovered the physiotherapist's identity through due diligence more than two years before commencing the action.

The Court of Appeal upheld this decision, finding no error in the motion judge's conclusion that the appellant failed to exercise reasonable diligence, particularly after receiving a July 25, 2012 letter from Toronto Poly Clinic indicating that no one from that clinic had treated her on the date in question.

The appeal was dismissed with costs awarded to the respondent.

This decision addresses the costs arising from a successful motion brought by Lexfund Inc. The court fixed Lexfund's partial indemnity costs, payable by the Ferro defendants, in the amount of $22,477.94, inclusive of disbursements and HST.

No other costs orders were made.

Lexfund Inc. brought a motion seeking to extend a timetable for several actions, extend time to elect to proceed with counterclaims, and to proceed against the estate of Lucio Anthony Ferro.

These actions, primarily debt collection for litigation funding loans, had been administratively dismissed for delay.

The court considered Lexfund's explanations for delay, the lack of prejudice to the defendants regarding the principal debt, and the principles of justice and proportionality.

While acknowledging Lexfund's counsel's "sloppy practice," the court found no deliberate intention to abandon the files and that the litigation should proceed on its merits.

The court granted the extensions and permission to proceed against the estate, but imposed conditions to mitigate prejudice to the individual defendants regarding interest, setting a simple interest rate of 5% per annum and limiting the period for which interest could be charged.

The plaintiff, Pelivan Muscaj, brought a motion under Rule 37.14 to set aside a registrar's order dismissing his action for delay, issued due to failure to set the action down for trial by the deadline under Rule 48.14.

The court applied the four-part Reid factors (satisfactory explanation for delay, intention to prosecute, timeliness of motion, and prejudice to defendant) using a contextual approach.

The court found the plaintiff failed to provide a satisfactory explanation for the 17-month litigation delay and did not offer satisfactory evidence of a continuing intention to prosecute the action diligently.

Furthermore, the plaintiff did not demonstrate that the defendant would not suffer significant prejudice.

Consequently, the motion to set aside the dismissal was denied.

This endorsement addresses the costs arising from successful motions by the plaintiffs and the Gomez defendants to set aside a Registrar's order dismissing the action for delay.

The Danikas defendants had opposed setting aside the dismissal order against them and also opposed paying costs to the Gomez defendants.

The court ordered the Danikas defendants to pay $3,500 in costs to the plaintiffs (by consent) and $5,000 in costs to the Gomez defendants, finding the latter successful and that the "Reid factors" for setting aside the dismissal were satisfied.

The plaintiff brought a motion to extend the time for service of its Notice of Action and Statement of Claim nunc pro tunc to February 14, 2017, following a two-month delay.

The defendant insurer opposed, arguing prejudice due to the expiry of the policy's one-year limitation period and an inadequate explanation for the delay.

The court found the plaintiff provided a reasonable explanation (inadvertence and desire not to disrupt settlement negotiations) and successfully rebutted the presumption of prejudice, noting the insurer had early notice and access to information.

The court clarified that issuing a Notice of Action within the limitation period stops the limitation clock, mitigating prejudice from subsequent late service of the Statement of Claim.

The motion was granted, validating service and ordering the defendant to file a Statement of Defence.

The plaintiff brought a motion to add Wankiewicz as a defendant in an action for injuries caused by an off-leash dog.

Wankiewicz argued the claim was statute-barred by the two-year limitation period.

The court found the plaintiff acted with reasonable diligence, as the original defendant had admitted ownership of the dog in his statement of defence before withdrawing the admission over a year later.

The motion to add the defendant was granted, as the claim against her was not discoverable until the admission was withdrawn.

The appellant filed a notice of appeal seeking to set aside a decision of the Superior Court of Justice.

The lower court had issued five separate judgments in five different actions that were heard together but not consolidated.

The notice of appeal did not reflect the style of any of the five judgments, and no appeal from any individual judgment fell within the monetary jurisdiction of the Court of Appeal.

The court found it lacked jurisdiction to consolidate matters resulting in five separate judgments and transferred the matter to the Divisional Court, which possessed the appropriate monetary jurisdiction.

Angela Piccone and her husband sought an order to extend the time for service of their Statement of Claim on North Country Property Maintenance Inc. due to improper initial service by their previous lawyer.

North Country opposed, claiming prejudice from the delay.

The court granted the extension, finding that North Country and its insurer had early knowledge of the incident and claim, and the delay was not intentional.

The court determined that the extension would not cause unfair prejudice to North Country and would facilitate access to justice for the plaintiffs.

The defendant brought a motion for summary judgment to dismiss the plaintiff's personal injury claim arising from a motor vehicle accident, arguing it was statute-barred.

The intervener, the plaintiff's former counsel, opposed the motion, while the plaintiff took no position.

The court determined that the limitation period began to run when the plaintiff's injuries could reasonably qualify as "permanent serious impairment" under the Insurance Act, which was found to be upon receipt of an independent medical examination report in November 2010, or at the latest, when the first statement of claim was issued in December 2011.

As the action against the correct defendant was commenced in December 2014, it was outside the two-year limitation period.

The defendant's motion for summary judgment was granted, dismissing the plaintiff's claim.

The plaintiff moved to set aside a registrar's order dismissing the action for delay, made under Rule 48.14(1) for failing to set the action down for trial by a Master's deadline.

The court applied the four *Reid* factors: explanation for delay, inadvertence, promptness of motion, and prejudice to defendants.

The court found the plaintiff adequately explained the delay and that the failure to meet the deadline was due to inadvertence, not deliberate choice.

Although the motion was not brought promptly, the defendants admitted no actual prejudice.

The court distinguished *1196158 Ontario Inc. v. 6274013 Canada Ltd.* and found that finality should not override the plaintiff's right to a hearing on the merits given the lack of prejudice.

The motion was granted, and a new timetable was set, with costs awarded to the defendants.

The plaintiff brought a motion to set aside an administrative dismissal order, validate and extend time for service of the statement of claim on the deceased defendant David Smith, and obtain an order to continue against Smith's estate.

The court applied the tests from H.B. Fuller Company v. Rogers and MDM Plastics Ltd. v. Vincor International Inc. for setting aside dismissal orders.

Despite the plaintiff's lawyers' delays, the court found the failure to act was inadvertent and that the defendant would not suffer significant prejudice, particularly given the preservation of evidence and the likely nature of liability.

The motion to set aside the dismissal and extend service was granted, and the order to continue was adjourned.

Lexfund Inc. sought summary judgment against multiple defendants, including former clients and the estate of their lawyer, Lucio Anthony Ferro, for repayment of litigation loans.

The loans, designed to finance personal injury actions, were structured with high compound interest and a condition of no repayment if the civil action was unsuccessful.

The defendants argued Lexfund failed to comply with the Consumer Protection Act's disclosure requirements, specifically regarding timely and adequate information provided directly to borrowers.

The court found Lexfund in flagrant breach of the Act, noting that loan documents were signed in blank, completed documents were not sent to borrowers, and loan statements were misleading by showing periodic advances instead of a single lump sum.

Consequently, the court dismissed Lexfund's claim for compound interest, finding actual prejudice to the borrowers.

However, recognizing the borrowers benefited from the loans, the court ordered them to repay the principal with simple interest at 5% per annum.

Judgment was also granted against the Ferro defendants for the cumulative amount owing.

The plaintiff brought a motion to set aside a registrar's order dismissing the action for delay under Rule 48.14(1).

The action involved a referral fee dispute between a paralegal company and a lawyer, which had been consolidated from several small claims court actions.

The court applied the Reid factors and found that the plaintiff adequately explained the litigation delay, the missed deadline was due to counsel's inadvertence, and there was no prejudice to the defendant.

The motion was granted, the dismissal order was set aside, and a timetable was established, with costs awarded to the defendant.

The plaintiffs moved to set aside a registrar’s order dismissing their motor vehicle accident action as abandoned under Rule 48.15 of the Rules of Civil Procedure.

The court applied the four-factor test governing motions to set aside dismissal orders, including explanation for delay, inadvertence, promptness in bringing the motion, and prejudice to the defendants.

The court found repeated and unexplained litigation delays, inadequate explanations for missed deadlines, and a failure to bring the motion promptly after the dismissal came to counsel’s attention.

A presumption of prejudice arose because the limitation period had expired and important pre‑accident medical evidence was potentially unavailable due to late production of OHIP summaries.

Balancing the factors, the court held that the plaintiffs failed to satisfy the Reid criteria and declined to set aside the dismissal order.

The plaintiff moved to set aside a registrar’s dismissal of a personal injury action for abandonment under former Rule 48.15 of the Rules of Civil Procedure.

The claim arose from a bicycle collision with a vehicle door, but the issued statement of claim was never served and the action was administratively dismissed.

Applying the Reid factors and a contextual approach, the court held the delay largely resulted from counsel’s inadvertence and internal file management failures, and that the defendant’s insurer had early notice and preserved evidence.

The court found the plaintiff moved promptly after discovering the dismissal and that the defendant had not demonstrated sufficient prejudice to preclude restoration.

The action was reinstated on terms, including permission to use the defendant’s written statement as evidence if he could not be located and conditions regarding service and costs.

The plaintiff brought a motion under Rule 37.14 to set aside a registrar's order dismissing the action for delay.

The action arose from a slip and fall at a subway station.

The delay was largely attributed to communication issues, missing correspondence, and the plaintiff's former counsel's health issues.

Applying the Reid factors, the Master found that the delay was adequately explained, the failure to set down was inadvertent, and the defendant suffered no actual prejudice.

The motion was granted and the dismissal order was set aside.

A litigation funding company sued a personal injury lawyer and his firm to recover amounts advanced under several loan agreements used to fund litigation disbursements.

The dispute concerned the meaning of “transfer of the client’s file” in the contracts and whether such transfers triggered immediate repayment obligations.

The defendants argued the term was ambiguous and relied on an alleged side agreement that loans need not be repaid where settlements were under $50,000.

The court held the contracts were clear that repayment became due when client files were transferred to new counsel and rejected the alleged side agreement as not altering the written agreements.

Judgment was granted to the lender for the outstanding balances with interest and the defendants’ counterclaim was dismissed.