John Bruce Jarvis Legge

The appellants appealed the dismissal of their motion for leave to amend their dental malpractice claim.

The motion judge found the proposed amendments constituted new, statute-barred claims, causing non-compensable prejudice to the respondent.

The Court of Appeal upheld the motion judge's decision, finding no error in the conclusion that the amendments created a new claim and that the finding of actual prejudice due to the expired limitation period was entitled to deference.

The appeal was dismissed with costs.

This is a costs endorsement following the dismissal of an appeal and cross-appeal in a class proceeding.

The court outlines the disposition of costs, including payments between the Law Foundation of Ontario, the Attorney General of Canada, and the Ontario Health Insurance Plan.

The original appeal by Kathryn Anne Taylor was dismissed, leading to this costs decision.

The appellant, representative plaintiff in a class action concerning defective temporomandibular joint (TMJ) implants, appealed the dismissal of her action following a trial of common issues.

She alleged the Canadian government (Health and Welfare Canada, HWC) owed a duty of care to regulate and warn about the devices.

The Court of Appeal upheld the trial judge's finding that no private law duty of care was owed by HWC, either through the legislative scheme or through interactions with class members, and found no palpable and overriding error in the trial judge's factual findings regarding the approval status of the devices.

The Attorney General's cross-appeal on costs was granted leave but dismissed, with the court affirming the trial judge's discretion in awarding costs, particularly considering the public interest nature of the case and the Class Proceedings Fund.

The plaintiff brought a motion under Rule 60.12 to strike the defendant's Statement of Defence in a class action, alleging failure to produce documents.

Mid-motion, the plaintiff changed the requested relief to an order for specific further productions and examinations.

The Master found that the plaintiff's mid-motion change in position and late-filed materials prevented the defendant from properly responding.

The Master also concluded that granting the proposed order risked jeopardizing a fixed 17-week trial date, and a Master lacks authority under Rule 37.02(2)(b) to make orders that would effectively adjourn a judge's fixed trial date.

Consequently, the motion was adjourned sine die, and the parties were directed to attend before Justice Firestone for directions regarding the trial date and the relief sought.

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, a high school student, sued her coach, principal, and school board for negligence after sustaining a knee injury during track and field practice.

The court found that the defendants met the standard of care of a careful and prudent parent, and that the plaintiff's current physical condition and occupational aspirations were not causally related to the injury.

The plaintiff's claim was dismissed.

In bankruptcy proceedings, the bankrupt sought to have a motion to expunge a creditor’s claim heard prior to the hearing of his discharge application.

The creditor opposed and raised several procedural objections, including service of an unsworn affidavit and requests for document production and viva voce evidence.

The court held that the earlier registrar’s order requiring the expungement motion to be determined first had not been appealed and remained binding.

The preliminary objections were rejected and the court issued procedural directions governing pleadings, delivery of further materials, and cross‑examinations prior to scheduling the hearing of the expungement motion.

Following the dismissal of a motion seeking the judge’s recusal in a bankruptcy proceeding, the court determined the appropriate costs award.

The self-represented bankrupt sought compensation for time spent responding to the recusal motion.

Applying the principles from Fong v. Chan, the court held that a self-represented litigant may recover costs only where an opportunity cost from forgone remunerative work is demonstrated.

As the self-represented party failed to establish any specific lost income, compensation for time was refused, though documented expenses and limited assistance from former counsel were allowed.

Allegations that the self-represented party misled the court or concealed patent-related financial interests were not resolved and were found irrelevant to the recusal motion.

The moving party sought an order requiring the judge to recuse himself on the basis of a reasonable apprehension of bias and to set aside a prior endorsement.

The motion relied on comments made in earlier reasons, the refusal of an adjournment at a case conference, directions regarding document production, and alleged comments about a prior registrar’s order.

Applying the objective test for reasonable apprehension of bias articulated in Wewaykum Indian Band v. Canada and R. v. S. (R.D.), the court held that none of the alleged circumstances would lead an informed and reasonable person to conclude that the judge would not decide the matter fairly.

The court emphasized that adverse findings, scheduling decisions, and case management directions do not establish bias when grounded in the evidence and procedural context.

The motion for recusal and to set aside the earlier endorsement was dismissed.

Following dismissal of a motion to annul a bankruptcy, the court determined the appropriate costs award.

The bankrupt sought full indemnity costs based on unproven allegations of fraud, while the opposing party argued for minimal costs in the cause.

The court held that the motion to annul lacked any realistic basis due to extreme delay and that costs should be payable within 30 days.

However, because no findings were made on the fraud allegations, the court awarded costs on a partial indemnity basis.

The court fixed costs at $10,000 inclusive of HST after considering the factors under Rule 57.01 and the allocation of work between the annulment motion and a separate expungement motion.

A creditor and former spouse brought a motion under s. 181(1) of the Bankruptcy and Insolvency Act to annul a bankruptcy more than a decade after the alleged fraudulent conduct giving rise to the request was known.

The moving party relied on earlier family court findings that the bankrupt had diverted income and engaged in deceit prior to the bankruptcy.

The court held that applications to annul a bankruptcy must be brought with diligence once the relevant facts are known.

Given a delay of at least twelve years and the absence of any satisfactory explanation, the motion was fatally late.

The court also noted potential prejudice arising from the long passage of time and questioned the practical purpose of the application.

A family law motion addressed the interim handling of disputed section 7 expenses held in trust by the respondent’s counsel pending a scheduled trial concerning the termination of child support for an adult child.

The applicant intended to seek dismissal or stay of the respondent’s motion to change for alleged non-compliance with a prior court order requiring continued payment of child support and post‑secondary costs.

The court considered the potential prejudice to both parties, noting the possibility that the respondent had substantially overpaid child support and might be unable to recover any overpayment if the funds were released.

Finding the respondent’s proposed alternatives reasonable and fair, the court ordered that the disputed funds remain in counsel’s trust account pending the outcome of the trial.

Costs were awarded to the respondent in the amount of $3,500, payable after judgment following the hearing.