J. Lin

In a motor vehicle negligence action, the court addressed whether responding parties could file additional affidavit evidence as a sur-reply in response to the moving defendants’ reply evidence on a summary judgment motion.

The request required further amendments to a timetable that had already been revised multiple times through repeated case conferences.

Applying summary judgment burden principles for rear-end collisions and procedural fairness principles governing reply and sur-reply evidence, the court held the parties had already had a fair opportunity to put their best evidentiary record forward.

Emphasizing finality and proportionality, the court refused further evidentiary expansion and directed the matter to proceed on the existing schedule.

The plaintiffs' home was severely damaged by a fire while undergoing renovations.

The plaintiffs alleged the fire was caused by the spontaneous combustion of stain-soaked rags left by the defendant painting subcontractor, and sought to hold the general contractor vicariously liable.

The court found that the plaintiffs failed to prove the cause of the fire on a balance of probabilities, accepting the painter's evidence that he did not leave rags in the home and noting that electrical arcing could not be ruled out as a cause.

The court declined to draw an adverse inference against the defendants for failing to call another fire investigator.

The action was dismissed, though damages were assessed at $1,348,939.91 in the alternative.

The plaintiff sought an order striking the jury notice on the basis that jury trials were not currently available in Toronto.

The court found it would be premature to hear the motion before an expected court announcement regarding the availability of jury trials in January 2021.

The motion was scheduled to be heard on January 8, 2021, and a timetable for materials was established.