Jonathan Adam Brian Schwartzman

This costs endorsement follows a four-week jury trial concerning a motor vehicle accident, where the plaintiff's jury awards for general damages and past loss of income were reduced to zero due to the statutory deductible and collateral accident benefits under the Insurance Act.

The defendant, deemed the successful party, sought substantial indemnity costs totaling over $400,000.

The plaintiff argued for a modest award, citing the defendant's late admission of liability and the jury's initial verdict.

The court, exercising its broad discretion under the Courts of Justice Act and Rule 57.01, declined to award substantial indemnity costs, finding no reprehensible conduct by the plaintiff.

However, it also rejected a "modest" award, concluding that partial indemnity was appropriate.

The court meticulously adjusted the defendant's claimed fees and disbursements, disallowing certain items like surveillance costs and excessive expert fees, ultimately awarding the defendant $131,980.35 in partial indemnity costs.

The court also dismissed the defendant's request for production of the plaintiff's adverse costs insurance policy, affirming its irrelevance and that Rule 30.02 does not apply when the law firm, not a party, is the policyholder.

This endorsement addresses case management issues in a long-standing action arising from a farm visit in 2005, particularly concerning the minor plaintiff Samuel Simpson who suffered significant cognitive and physical issues.

The court convened a case conference to establish a timetable for the delivery of expert reports, emphasizing the unacceptable delays in the case.

The judge ordered expedited efforts to obtain an MRI for the minor plaintiff and set specific deadlines for the service of expert reports on damages and liability for all plaintiffs and the defence.

The court also raised concerns about the minor plaintiff's representation after he turns 18 and directed counsel to make inquiries regarding a future litigation guardian.

The third party insurer, CAA, brought a motion for summary judgment to determine if the defendant driver, Jeffrey Sorto Torres, was in possession of his father's (Victor Sorto Rivera) vehicle with or without consent at the time of a motor vehicle accident.

The determination would affect Victor's vicarious liability under the Highway Traffic Act and Wawanesa Mutual Insurance Company's uninsured motorist coverage.

The court found that Victor had given implied consent for Jeffrey to possess the vehicle, primarily due to Jeffrey being left in charge of the household and his autistic brother, and the accessibility of car keys.

Consequently, CAA's motion for summary judgment to dismiss the action against Victor Rivera was dismissed.

A third party moved for summary judgment dismissing a contribution and indemnity claim on the basis that it was statute‑barred under the Limitations Act, 2002.

The defendant argued the claim was only discoverable when an invoice revealed that it had supplied the oil tank involved in the loss.

The court held that s. 18 of the Limitations Act deems the claim for contribution and indemnity to arise when the defendant was served with the statement of claim, triggering a two‑year limitation period.

The defendant knew or ought to have known the identity of its tank supplier at that time and failed to exercise due diligence.

The third party claim was therefore commenced outside the limitation period and was dismissed on summary judgment.

The litigation guardian for a minor plaintiff brought a motion seeking to be replaced by the Office of the Children’s Lawyer as litigation guardian.

The moving party argued that the potential costs consequences of an upcoming summary judgment motion created a conflict of interest and justified the substitution.

The court held that concern over possible personal costs liability did not constitute an adverse interest within the meaning of the Rules of Civil Procedure.

The court further emphasized that the Children’s Lawyer is a litigation guardian of last resort and should not replace a capable and financially able parent absent evidence of true conflict or inability to act.

The motion was dismissed.