Joanna L. Nairn

A motion to reconsider an order by Justice Gloria Epstein dismissing an appeal for delay.

The appellant sought to challenge the dismissal, arguing inadequate notice and that the time for perfection should be extended.

The Court of Appeal upheld Epstein J.A.'s decision, finding no merit in the appellant's submissions and confirming that the entire history of the proceeding could be considered in assessing delay.

The appeal was properly dismissed for delay by the registrar.

The motion was dismissed with costs awarded to the respondent.

A client appealed a decision confirming an assessment officer's assessment of a lawyer's fees and disbursements at $125,602.83.

The lawyer had been retained under a contingency fee agreement that provided for hourly billing if the retainer was terminated.

After the solicitor-client relationship broke down, the client retained new counsel and later self-represented.

The client settled a claim against Food Basics for $30,000, with the settlement agreement providing that costs be paid directly to the lawyer.

The assessment officer rejected the client's argument that an undertaking limiting recovery to $50,000 applied, finding that the undertaking no longer governed once the client self-represented.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error and confirming the assessment officer's jurisdiction and reasoning.

This is a costs endorsement following an appeal to the Court of Appeal for Ontario.

The appellants, The Regional Municipality of Sudbury and The City of Greater Sudbury, appealed a judgment of the Superior Court of Justice dated November 17, 2015.

The appeal was unsuccessful.

The court awarded costs to the respondents in the amount of $95,000, inclusive of disbursements and all applicable taxes.

A tragic motor vehicle accident occurred on November 22, 2000, when a 20-year-old driver lost control of her vehicle on a snow-covered regional road during a winter storm and collided with an oncoming school bus, sustaining catastrophic injuries.

The plaintiff and her family sued the municipality for negligence, alleging failure to maintain the road in a reasonable state of repair under the Municipal Act.

At trial, the municipality was found 100% liable for approximately $12 million in damages.

On appeal, the municipality challenged the trial judge's findings regarding statutory defences under sections 284(1.2) and 284(1.3) of the Municipal Act and the trial judge's rejection of a contributory negligence claim.

The Court of Appeal upheld the trial judgment, finding that the municipality had actual or constructive knowledge of the risk of road refreezing and failed to take reasonable steps to prevent the hazardous conditions that caused the accident.

On appeal from a damages award of $532,000 in a trespass and nuisance case, the appellants challenged the trial judge's quantification of damages, arguing the respondents failed to establish a reasonable and reliable basis for the award and should receive only nominal damages.

The Court of Appeal upheld the trial judge's decision, finding no error in her approach to damages assessment despite imperfect record-keeping by the respondent.

The trial judge properly considered gaps in evidence, the impact of the recession, and made reasonable inferences about lost productivity caused by the appellants' conduct.

The client brought a motion to oppose the confirmation of a Report and Certificate of Assessment regarding his former solicitors' legal accounts.

The solicitors brought a cross-motion for judgment based on a settlement agreement where the defendant in the underlying action agreed to pay the assessed costs.

The court found no special circumstances that would deprive the assessment officer of jurisdiction and upheld the assessment officer's findings.

The client's motion was dismissed, and the solicitors' cross-motion was granted, resulting in a judgment for the assessed amount of $125,602.83.

The appellants, a police officer and the police services board, appealed a trial judgment finding them liable for negligent police investigation of the respondents regarding stolen auto parts.

The trial judge had determined the standard of care without relying on expert evidence and awarded substantial damages.

The Court of Appeal allowed the appeal, holding that the trial judge erred in departing from the general rule that expert evidence is required to establish the standard of care for a professional, as the investigation was technical and the police conduct was not egregious.

The Court also found the trial judge erred in formulating the standard of care and failing to consider the respondent's committal for trial.

The judgment was set aside except for an agreed award for damaged property.

Two consortia of law firms appealed a carriage dispute over a multi-billion dollar securities class action against Barrick Gold Corporation.

The motion judge awarded carriage to the Rochon consortium, preferring their broader claims and more extensive preparation over the Koskie consortium's streamlined approach.

The Court of Appeal dismissed the appeal, finding no error in principle in the motion judge's application of the Vitapharm factors.

The Court affirmed that the ultimate question on a carriage motion is which action is more likely to advance the interests of the class, and the motion judge's exercise of discretion in balancing the relevant factors is entitled to considerable deference.

The appellants appealed a trial decision finding that they had no interest in certain mining claims under an Option Agreement.

The appellants argued the agreement was an outright sale, while the respondent argued it was an option agreement requiring the appellants to fund development to earn their interest.

The Court of Appeal upheld the trial judge's interpretation, finding that the agreement was an option and that legal title reverted to the respondent because the appellants failed to fulfill their funding obligations.

The appellant was injured while working as a go-kart race director.

He had signed a waiver releasing the respondents from liability.

The motion judge granted summary judgment dismissing the action based on the waiver.

On appeal, the court found that the appellant was an employee covered under Part X of the Workplace Safety and Insurance Act.

The court held that it is contrary to public policy to allow individuals to contract out of the protections of Part X of the Act.

The appeal was allowed and the summary judgment was set aside.

The plaintiff sued his former family lawyer for professional negligence arising from the drafting of a marriage contract.

He alleged the solicitor failed to advise him about a potential 'downside' or catastrophic change clause that would have protected him if his wealth declined during the marriage.

After the marriage ended, the contract was enforced and the plaintiff paid substantial sums to his spouse, which he claimed constituted damages caused by negligent legal advice.

The court found the solicitor had adequately explained the operation of the Family Law Act and equalization and met the standard of care of a reasonably competent solicitor.

The court also held that even if negligence had been established, the plaintiff failed to prove causation or damages, including claims relating to lost investment opportunities.

The Court of Appeal for Ontario issued a costs endorsement following the appeals in Westerhof v. Gee Estate and McCallum v. Baker.

The court ordered that the costs of the appeal in McCallum v. Baker be awarded to the respondent, fixed in the amount of $60,000 inclusive of disbursements and applicable taxes.

The respondent, having been successful on the appeal, sought costs on a partial indemnity basis.

The appellant argued that no costs should be awarded because the appeal involved an issue of public importance, or alternatively, that costs should be reduced to reflect divided success on the issues.

The Court of Appeal rejected both arguments, finding the issue was not truly novel and declining to make a distributive costs award.

The respondent was awarded costs of $83,875.85.

The appellants appealed the dismissal of their medical malpractice action following the death of a 22-year-old man in hospital.

The deceased had been switched from morphine to Dilaudid by the respondent physician, and the appellants alleged the dosage was excessive and caused his death by opioid overdose.

The trial judge accepted the respondent's expert evidence that the dosage met the standard of care and that the cause of death was not an opioid overdose.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's approach to liability, standard of care, or causation.

The parties entered into an agreement where the respondent would solicit new customers for the appellant in exchange for a 5% commission.

After the appellant terminated the agreement, a dispute arose over whether commissions were owed for ongoing sales to customers brought in by the respondent.

The motion judge granted summary judgment to the respondent, finding the agreement required ongoing payments.

The Court of Appeal dismissed the appeal, upholding the motion judge's contractual interpretation, rejecting the defence of non est factum because the appellant failed to read the agreement, and finding no denial of procedural fairness regarding the appellant's equitable set-off claim.

Two personal injury appeals were heard together to determine the scope of Rule 53.03 of the Rules of Civil Procedure regarding expert witnesses.

The Court of Appeal held that Rule 53.03 does not apply to 'participant experts' (such as treating physicians) or 'non-party experts' who form opinions based on their observation of or participation in the events at issue, rather than being engaged by a party for the litigation.

In Westerhof, the trial judge's erroneous exclusion of such evidence warranted a new trial.

In McCallum, the trial judge correctly admitted the treating practitioners' opinion evidence.

The appellants appealed the dismissal of their action against a grocery store after the deceased was struck by another customer's overloaded shopping cart.

The appellants argued the store's safety policies were inadequate and that employees failed to intervene despite seeing the hazard.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the store's general safety policy was reasonable and did not require a standard of perfection.

The court also found it was reasonable for the trial judge to conclude that the store employees did not have a realistic opportunity to intervene in the seconds before the tragic accident occurred.

The appellant orthopedic surgeon appealed a trial judgment finding him liable for medical malpractice after the respondent developed compartment syndrome following the application of a full circumferential cast.

The trial judge had strongly criticized the appellant's counsel for reviewing and discussing draft reports with their expert witnesses, ruling that such practices were improper under the 2010 amendments to Rule 53.03.

The Court of Appeal held that the trial judge erred in law, confirming that consultation between counsel and expert witnesses is essential and protected by litigation privilege absent a factual foundation of improper influence.

The Court also found the trial judge erred by using expert reports not in evidence to contradict viva voce testimony.

However, the Court concluded these errors did not cause a substantial wrong or miscarriage of justice, as the respondent's expert evidence was overwhelmingly stronger.

The appeal was dismissed.