John J. Adair

A trial management conference was held to determine the procedures for an upcoming trial regarding an estate application.

The court directed that the trial proceed as a hybrid hearing, with most participants attending in person and one witness testifying virtually.

The court also issued procedural directions regarding the use of CaseLines, the marking of exhibits, and the preparation of a joint document brief.

This decision addresses a request by the respondent (defendant in the original action) to limit the scope of a new trial on liability and damages, which had been ordered by the Court of Appeal in a prior decision.

The court dismissed the request, emphasizing that the evidence and issues were complex, interrelated, and interdependent.

Limiting the trial to specific issues would risk artificial credibility assessments and unreliable fact-finding.

The defendant, Dr. Saad, sought a declaratory order that evidence he would provide in support of a renewed motion to stay the action would be inadmissible in a pending contempt proceeding against him, relying on the s. 13 Charter right against self-incrimination.

The Plaintiffs opposed, arguing the evidence was not compelled and the proceedings were not "other proceedings." The court dismissed Dr. Saad's motion, holding that his evidence on the stay motion was not statutorily compelled, and therefore s. 13 of the Charter was not engaged.

The court clarified that the proper time to seek use immunity would be at the contempt hearing itself.

The appellants appealed the dismissal of their medical malpractice action against an obstetrician following a catastrophic birth injury.

The infant suffered acute near-total oxygen deprivation prior to birth, resulting in severe permanent brain damage.

At trial, the judge dismissed the action, finding no breach of the standard of care and no causation.

On appeal, the Court of Appeal found the trial judge's reasons were legally inadequate regarding causation and one of the standard of care issues (the failure to complete the delivery with Kielland forceps).

The reasons failed to explain critical findings, preventing meaningful appellate review.

The appeal was allowed and a new trial ordered on all issues of liability and damages.

The moving parties brought a motion for leave to appeal the order of Penny J. dated January 28, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties in the fixed amount of $5,000.

The defendants and plaintiffs both brought motions for leave to appeal an order regarding the admissibility of evidence in a civil contempt proceeding.

The Divisional Court granted leave to appeal on four issues concerning the application of sections 7 and 13 of the Canadian Charter of Rights and Freedoms to evidence compelled pursuant to a Mareva order and undertakings.

The court directed that the defendant be the appellant and the plaintiffs be the cross-appellants.

The plaintiffs brought a motion for contempt against the defendants, alleging they breached a Mareva injunction by using frozen assets to pay for living and legal expenses.

In response, the defendants brought several procedural motions.

Dr. Saad moved to strike compelled evidence from the plaintiffs' contempt motion record, arguing it violated his Charter rights against self-incrimination.

The court dismissed this motion, finding that a contempt motion is not 'other proceedings' under s. 13 and that ss. 7 and 11(c) did not apply to previously compelled evidence.

Dr. Saad also moved under Rule 21 to exclude prior judicial rulings made in the civil action from the contempt motion.

The court granted this motion, holding that findings made on a civil standard are inadmissible in a quasi-criminal contempt proceeding.

The plaintiffs moved to compel the defendants to answer undertakings and produce documents.

The court ordered Dr. Saad to answer undertakings but ruled the answers could not be used in the contempt motion, and declined to order further document production that would conscript the defendants to assist in their own prosecution.

The court also limited the plaintiffs' disclosure obligations to the alleged breach, refusing broad discovery on the underlying fraud.

Finally, the court dismissed Mohammed's motion to stay the contempt proceedings pending his appeal on jurisdiction.

The defendant moved to strike a new action for unjust enrichment as an abuse of process, arguing the plaintiff should have sought leave to add her to an existing related action.

The plaintiff cross-moved to consolidate the actions.

The defendant also moved to stay the action or strike the plaintiff's affidavit because the plaintiff spoke to his counsel during a break in a virtual cross-examination.

The court dismissed the motion to strike, finding the new action was not an abuse of process as it involved a new party.

The court allowed the consolidation motion.

While the court found a breach of cross-examination rules occurred during the virtual break, it held that staying the action or striking the affidavit was a disproportionate remedy given the innocuous nature of the discussion.

Following a judgment on the merits, the successful defendant sought costs on a substantial indemnity basis due to the plaintiffs' and a non-party's vexatious conduct.

The court agreed that substantial indemnity costs were warranted, but reduced the requested amount by $15,000 to sanction the defendant's own witness for frustrating an examination.

Costs were fixed at $39,803.89, payable jointly and severally by the plaintiffs and the non-party.

Following the dismissal of the plaintiffs' action for specific performance due to egregious litigation misconduct, the defendant brought a motion seeking forfeiture of a $200,000 deposit and an order making the non-party principal of one of the plaintiffs personally liable for costs.

The court found that the plaintiffs' destruction and concealment of evidence made it impossible to determine who was at fault for the failed real estate transaction, warranting an adverse inference that the plaintiffs were not ready, willing, and able to close.

The court ordered the deposit forfeited to the defendant and held the non-party principal jointly and severally liable for costs due to his abusive litigation conduct, including the concealment of a related lawsuit between the plaintiffs.

The applicant was injured in a motor vehicle accident and sought pre- and post-104 week income replacement benefits (IRBs), which the respondent insurer denied.

The Tribunal found that the applicant suffered a substantial inability to perform the essential tasks of his pre-accident employment as a sheet metal fabricator and airplane mechanic due to ongoing pain from a right leg fracture.

Furthermore, the Tribunal concluded that the applicant met the more stringent post-104 week test, as his chronic pain and physical limitations resulted in a complete inability to engage in suitable employment.

The Tribunal also ordered a 10% award against the insurer under s. 10 of O. Reg. 664, finding that the insurer unreasonably withheld benefits by failing to adjust the claim after receiving compelling medical reports supporting the applicant's ongoing impairments.

The respondent father brought a motion seeking the recusal of the case management judge, alleging bias.

The judge had previously found the father engaged in severe parental alienation and ordered reintegration therapy, which the father repeatedly delayed and undermined.

Following a Divisional Court ruling that stayed other contested motions pending the recusal motion, the judge voluntarily withdrew from the case.

The judge issued a lengthy endorsement detailing the father's history of alienation, deception, and manipulation, explaining that his withdrawal was necessary to prevent the father from using the recusal motion to further delay proceedings and harm the children.

The appellant father appealed a case management judge's decision to adjourn a contested motion brought by the Office of the Children's Lawyer until a recusal motion could be heard.

The case management judge had determined the recusal motion was too long to be heard during COVID-19 protocols, resulting in legal paralysis for the family.

The Divisional Court allowed the appeal, finding the situation inappropriately left the children in limbo, and directed the Regional Senior Judge to appoint a temporary case management judge until the recusal motion is decided.

The applicant sought leave to appeal regarding the scheduling and hearing of a recusal motion and outstanding motions by the Office of the Children's Lawyer.

The Divisional Court granted leave to appeal, ordered the appeal to be expedited, and permitted the appeal to be heard in Toronto or another region to secure an earlier date.

Costs were reserved to the panel hearing the appeal.

The applicant, NJS Midtown Portfolio Inc., sought a court order directing the respondent, CMLS Financial Ltd., to consent to the sale of a mortgaged property and provide a partial discharge of the mortgage, or alternatively, a full discharge upon payment of the principal and accrued interest.

NJS had entered into an agreement of purchase and sale for one of three properties secured by a closed, 10-year mortgage with CMLS, which was insured by CMHC and part of a Mortgage-Backed Securities program.

CMLS refused consent, citing contractual terms, CMHC policy obligations, and the non-prepayable nature of the mortgage.

The court dismissed NJS's application, finding no contractual, statutory, common law, or equitable basis for the requested discharge, and that CMLS's withholding of consent was reasonable given its commercial interests and obligations to CMHC and MBS investors.

The appellant appealed the dismissal of his motion opposing the confirmation of an Assessment Officer's report regarding his former solicitor's accounts.

He argued the Assessment Officer lacked jurisdiction over a contingency fee agreement, the retainer violated the Solicitors Act, and the assessment should have awaited the outcome of his negligence action against the solicitor.

The Court of Appeal dismissed the appeal, finding the motion judge properly conducted his own analysis of the contingency fee agreement and confirmed the report, the statutory compliance argument was raised too late, and there was no basis to delay the assessment.

The applicant sought an interim Mareva injunction against the respondents and several related entities, alleging breaches of a co-owners agreement, a distribution order, and misappropriation of funds in a real estate development project.

The respondents brought a cross-motion for the release of occupancy fees.

The court dismissed the applicant's motion for a Mareva injunction, finding that the applicant failed to establish a strong prima facie case, a real risk of asset dissipation, or irreparable harm, and that the undertaking as to damages was insufficient.

The court granted the respondents' motion for the release of occupancy fees.

This is a costs endorsement following an appeal.

The Court of Appeal for Ontario addressed costs for both the appeal and the underlying summary judgment motion.

The parties agreed to no costs for the appeal due to divided success.

For the summary judgment motion, the court declined to award costs to the primary appellants (Bistricer) or respondents (Rubner), citing reasons such as new arguments on appeal and divided success.

However, the litigation guardian for Eda Rubner, who was aligned with the original applicants, was awarded partial recovery of costs for the summary judgment motion.

A pedestrian struck by a vehicle in 2008 received statutory accident benefits for attendant care and housekeeping until the insurer terminated them in 2010.

In 2015, after receiving a catastrophic impairment designation, the claimant reapplied for benefits.

The Tribunal and Divisional Court found the claim was out of time based on a two-year limitation period.

The Court of Appeal allowed the appeal, finding that the limitation period was subject to the rule of discoverability and was not a hard limitation period.

The court held that applying a hard limitation period would be contrary to the consumer protection purposes of the Statutory Accident Benefits Schedule and would produce an absurd result by barring claims before the claimant was eligible to make them.

The plaintiff, a truck driver operating a tractor-trailer as an independent contractor in Florida, was struck by an underinsured vehicle with only $20,000 in coverage.

He sought underinsured motorist coverage under two insurance policies: his personal automobile policy with AllState and the fleet coverage through ACE INA for the commercial vehicle.

Both policies contained optional Family Protection Coverage endorsements for underinsured vehicle coverage.

The motion judge granted summary judgment in favor of the plaintiff, finding that AllState was obliged to provide underinsured coverage while ACE INA was not.

AllState appealed, and the plaintiff cross-appealed the ACE INA decision.

The Court of Appeal allowed AllState's appeal and dismissed the cross-appeal, holding that neither insurer was obliged to provide underinsured coverage for the heavy commercial vehicle operated by the plaintiff.