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.

The parties separated in 2016 after a short marriage.

The father had primary care and sole decision-making responsibility for their 9-year-old daughter for seven years following an incident where the mother surreptitiously removed the child to Winnipeg while experiencing mental health struggles.

The mother sought increased parenting time and joint decision-making responsibility.

The court found it was in the child's best interests to increase the mother's parenting time to 6 overnights out of 14 days, creating a shared parenting arrangement.

Due to high conflict and poor communication, the court ordered a parallel parenting regime where the parents must consult, but the mother has final say on health decisions and the father has final say on education and extra-curriculars.

The mother was also ordered to pay $12,136 in retroactive child support and ongoing set-off child support of $114 per month.

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 moving parties brought a motion for leave to appeal the order of Fitzpatrick J. dated April 6, 2021.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the responding party in the fixed amount of $5,000.

Following the dismissal of a class action concerning medical device implants, the Crown sought over $6.3 million in costs.

The plaintiff argued for no costs based on public interest and access to justice principles under the Class Proceedings Act, and sought costs for an unproven fraud allegation against a witness.

The court significantly reduced the Crown's costs to $385,000, noting the public interest nature of the case, the access to justice mandate, and the Crown's own contribution to the 20-year delay.

OHIP was ordered to pay 10% of the costs, with the remainder payable by the Law Foundation of Ontario.

The plaintiff brought a class action against the Crown alleging negligent regulation of Vitek Proplast temporomandibular joint (TMJ) implants by Health Canada.

The plaintiff claimed that the Crown owed a private law duty of care to the class members and breached that duty by failing to properly regulate the devices, issuing Notices of Compliance negligently, and failing to adequately warn the public or recall the devices.

Following a lengthy common issues trial, the Superior Court of Justice dismissed the action.

The court applied the Anns test and concluded that the Crown did not owe a private law duty of care to the class members, as there was insufficient proximity between the regulator and the unidentifiable group of potential implant recipients.

Furthermore, the court found that even if a duty of care existed, the Crown did not breach the applicable standard of care, as its regulatory actions and responses to the evolving scientific understanding of the implants' risks were reasonable and appropriate.

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.

The plaintiffs brought a motion to strike the statement of defence of the defendant dentist for failure to comply with a production order and for obstruction of production and discovery by his former solicitors.

The court found that the plaintiffs and the co-defendant had conflated the production obligations of the defendant with those of his former law firm, which had previously represented both defendants on a joint retainer.

The court held that the defendant had belatedly complied with his obligations and could not be held responsible for the failings of the former law firm.

The motion to strike the defence was dismissed.

Following the dismissal of the defendant's motion for leave to appeal, the court received written submissions on costs.

The successful parties, the plaintiff and the subrogated plaintiff (OHIP), were awarded costs on a partial indemnity basis, fixed at $2,500 each, payable by the defendant.

In a medical malpractice action against two oral surgeons, the plaintiffs moved to remove one defendant's counsel based on a conflict arising from the firm's prior joint representation of both defendants.

Although the former client had earlier given a waiver, the court held that a later agreement that counsel would not act adversely to his immediate interests modified that consent.

Applying the duty of loyalty to former and current clients, and emphasizing public confidence in the administration of justice, the court found it would be difficult if not impossible to conduct the trial without a substantial risk of adversity, compromised process, or mistrial.

The motion was granted and counsel was removed, with new counsel to be retained and a new trial date fixed.

In this procedural endorsement in a civil action, the moving parties were directed to advise the court on unresolved trial-management matters.

The court sought clarification on the applicable governing law for liability, limitation period, and damages, including whether Ontario or Quebec law applied, and how any Quebec law would be introduced into evidence.

The court also required the parties to advise whether a limitations-based dismissal motion would be renewed and whether any other motions were anticipated.

Updated witness lists and time estimates for examinations were also ordered.

Following an earlier order expunging a creditor’s claim in bankruptcy, the bankrupt sought costs against the creditor.

The court held that costs should follow the cause and found no reason to depart from that principle.

The court allowed the bankrupt’s claimed disbursements for transcripts, copying, commissioners’ fees, and travel, as well as legal fees incurred from prior counsel in connection with the expungement motion.

The creditor was ordered to pay the total amount of the claimed costs.

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.