Jonathan B. Schrieder

The court dismissed a motion to strike the jury notice following closing arguments in a negligence trial arising from a motor vehicle accident.

The plaintiffs objected to 19 statements made by defence counsel in his closing address, alleging they were inflammatory, invited improper reasoning, misstated the law, and appealed to emotion.

The court found some statements objectionable but determined that corrective jury instructions were sufficient to remedy any prejudice, making discharge of the jury unnecessary.

The jury subsequently found the defendants liable in negligence, apportioning liability at 93% to one defendant and 7% to the other.

Three consolidated civil actions arose from a motor vehicle accident on April 22, 2016, near Stouffville, Ontario, involving three vehicles.

The defendant Rae argued he owed no duty of care to the plaintiffs.

The court ruled on the duty of care issue at the close of the plaintiffs' case, finding that Rae owed a duty of care to all plaintiffs as a driver to other users of the roadway.

The court applied established jurisprudence recognizing the duty of care owed by drivers to other road users and rejected Rae's arguments based on the distinction between nonfeasance and misfeasance, finding that driving is a heavily regulated activity and that the duty of care exists regardless of whether specific statutory obligations apply to the particular conduct alleged.

The court considered a motion by the defendant to compel the plaintiff to attend two defence medicals and to permit late service of expert reports in a motor vehicle accident case.

The court found the defendant's explanation for delay unreasonable and dismissed the motion, except for allowing late service of a neurology report, as the plaintiff did not oppose that part.

The court emphasized the importance of timely expert report exchange and the consequences of litigation strategy that delays compliance with the rules.

The plaintiff sought leave to amend her statement of claim to include a declaration of catastrophic impairment and claims for punitive, aggravated, and exemplary damages, and to compel the defendant to produce redacted adjuster's log notes with explanations.

The defendant opposed the amendments, arguing they were new claims barred by the April 1, 2016 amendment to the Insurance Act, which directs statutory accident benefit disputes to the Licence Appeal Tribunal (LAT).

The court dismissed the request to amend the statement of claim, finding the proposed amendments constituted new claims not implicit in the original pleading.

However, the court granted the request for the production of redacted adjuster's log notes, along with explanations for each redaction, as the defendant had previously undertaken to produce them.

The applicant, common-law partner of the deceased, moved for summary judgment to set aside the deceased's 2017 Will and validate a 1991 Will, alleging the 2017 Will was signed under suspicious circumstances due to the deceased's severe dementia.

The respondent, the deceased's son, sought to propound the 2017 Will.

The court found overwhelming evidence of the deceased's incapacity at the time of execution, despite no finding of undue influence, and granted the applicant's motion, setting aside the 2017 Will and associated Powers of Attorney.

The plaintiff, Chantale Abbott-Keith, appealed a Certificate of Assessment of Costs issued by an Assessment Officer, which significantly reduced her claimed party-and-party costs from two settled motor vehicle accident actions and awarded costs of the assessment against her.

The appeal raised grounds including the Assessment Officer's failure to conduct a line-by-line analysis, breach of natural justice and procedural fairness by not properly considering the plaintiff's objections under Rule 58.10, and errors in applying proportionality and reducing disbursements.

The court found that the Assessment Officer erred in interpreting Rule 58.10(1) regarding the timing of objections and fundamentally misconstrued her role in the reconsideration process, thereby denying the plaintiff a fair hearing.

The appeal was granted, the Certificate of Assessment of Costs was quashed, and the matter was remitted back to the same Assessment Officer for a proper hearing of objections.

The appellant Economical Insurance appealed a motion judge's determination of the priority in which three insurance policies would respond to a motor vehicle accident claim.

The driver was covered under the vehicle owner's State Farm automobile policy, the owner's State Farm personal liability umbrella policy, and the driver's own Economical automobile policy.

The motion judge ordered that the State Farm auto policy respond first, followed by the Economical auto policy, and then the State Farm umbrella policy.

Economical argued that the umbrella policy was an owner's first loss policy under section 277(1) of the Insurance Act and should respond before the Economical policy, or alternatively, that both policies should respond rateably under section 277(2).

The Court of Appeal dismissed the appeal, holding that the umbrella policy was not an owner's first loss policy as defined by the Act and that section 277(2) did not apply to the Economical policy.