Joseph Youssef Obagi

The appellant appealed a jury verdict dismissing her negligence action against the respondent homeowners after she slipped and fell on their staircase.

The appellant argued the trial judge erred in excluding the first set of expert slip resistance testing, resulting in a miscarriage of justice.

The Court of Appeal found no error in the trial judge's gatekeeping decision under the White Burgess framework, as the excluded testing differed materially from the actual conditions.

Even if the exclusion were erroneous, no miscarriage of justice resulted because the tampering theory was still advanced at trial through other evidence and the jury's verdict turned on the credibility of the parties.

The appellant, a housing corporation, appealed a motion judge's decision striking its claims against a manufacturer and seller of a defective toilet flushing system.

The appellant sought damages for excess water costs resulting from system failure.

The Court of Appeal upheld the motion judge's decision, holding that: (1) the manufacturer could not be sued under the Sale of Goods Act as it was not a seller in privity with the purchaser; and (2) the claim in negligence was for pure economic loss, which is not recoverable in tort absent exceptional circumstances not present here.

The court confirmed that such disputes are customarily dealt with by contract, not tort.

The decision addresses three mid-trial motions in a solicitor’s negligence action.

The plaintiffs sought leave to admit late-served expert reports and to call Ms. Tara Sweeney as a participant expert.

The defendant sought to limit the plaintiffs’ claim to damages arising from an alleged improvident settlement and objected to the plaintiffs calling multiple experts on the same issue.

The court held that the plaintiffs are precluded from advancing any theory of liability beyond the improvident settlement claim, denied leave to rely on the late-served expert reports, found Ms. Sweeney is not a participant or non-party expert, and permitted the plaintiffs to call both Mr. Will and Ms. Maitland-Carter as experts on Mr. Cardill’s standard of care, but not both Mr. Will and Ms. Sweeney on Mr. Good’s standard of care.

The plaintiffs brought a mid-trial motion seeking to prevent the defendant, John Cardill, from relitigating whether their former solicitor, Donald Good, breached the standard of care in settling their personal injury actions.

The plaintiffs argued that this issue had already been determined in a prior costs assessment by Justice Hackland.

The court reviewed the doctrine of abuse of process and concluded that it did not apply in this case, as Mr. Cardill was not a party to the prior proceeding and it would be unfair to bar him from making a full defence.

The motion was dismissed.

This decision addresses whether Anne Meehan, a plaintiff in the action, is competent to testify at trial.

The court held a voir dire to determine her testimonial competence, considering her ability to understand the nature of an oath or solemn affirmation and her capacity to communicate evidence.

Despite inconsistencies and some cognitive limitations, the court found that Ms. Meehan demonstrated the necessary capacities to perceive, recollect, and communicate, and ruled that she may testify on a promise to tell the truth.

This ruling addresses whether Anne Meehan, a plaintiff, is competent to testify at trial.

The court reviews medical assessments of Ms. Meehan’s capacity, the statutory requirements under the Ontario Evidence Act, and the parties’ arguments regarding the necessity and form of a competency examination.

The court concludes that a voir dire is required to determine Ms. Meehan’s competency, as mandated by section 18(2) of the Evidence Act, and clarifies that such an examination need not occur in a formal courtroom setting.

The plaintiff, Shawn Balla, brought a motion to lift the stay of his action imposed by section 17 of the Crown Liability and Proceedings Act.

The motion was heard on January 7, 2025.

The court found that Balla met the test for leave under subsection 17(7) of the Act, establishing both good faith and a reasonable possibility of success in his claim of bad faith against certain defendants.

The court granted leave against those defendants who wrote "responsive" on the Health Care Observation Forms, allowing the action to proceed against them, and provided directions for further disclosure and amendment of the statement of claim.

The defendants, two insurance companies, brought a motion under Rule 6.01 to have two bad faith actions heard together or one immediately after the other without a jury.

The plaintiffs opposed the motion, citing significant delay and distinct legal issues.

The court dismissed the motion, finding that the defendants' delay in bringing the motion was unacceptable and prejudicial to the plaintiffs, particularly given that one action was already scheduled for trial.

The court also noted that the issues, while related, were sufficiently discrete to proceed separately, and a decision in the more advanced action might resolve or narrow the other.

The Court of Appeal for Ontario issued a costs endorsement following its August 15, 2024 decision.

The parties resolved the costs of the appeal and underlying prejudgment interest motions by consent.

The respondent agreed to pay the appellants an all-inclusive amount of $60,000 for appeal and motion costs.

The appellants appealed a trial judge's prejudgment interest order, arguing errors in applying statutory rates and discretion under the Courts of Justice Act.

The Court of Appeal found the trial judge erred by misapplying the presumptive 5% rate for non-pecuniary damages, misconstruing the purpose of non-pecuniary damages, and misinterpreting "market interest rates" by equating them with statutory prejudgment rates.

The trial judge also improperly rejected evidence of the insurer's and appellants' actual investment returns.

The appeal was allowed, and the prejudgment interest rate for both non-pecuniary and past pecuniary damages was increased to 8.46%.

This was a refusals motion brought by the plaintiff within a larger motion by the defendants to amend their statement of defence and potentially withdraw an admission in a bad faith action.

The plaintiff sought production of a letter from counsel relied upon by a witness for factual assertions in an affidavit, and an answer regarding communications with a companion bad faith action.

The court granted the refusals motion, ordering the production of the letter (with redactions for privileged portions, noting waiver of privilege for facts relied upon) and the answer to the question, finding them relevant to the main motion.

The defendants brought a motion seeking an assessment of the plaintiff, Ruth Campbell, to determine her capacity to testify at trial due to advancing dementia, and for disclosure of a capacity assessment report obtained by the plaintiffs.

The court granted the assessment for the purpose of determining her ability to testify, but strictly limited the use of the resulting report to a voir dire on her testimonial capacity, prohibiting its use for substantive issues of liability or damages.

The court also ruled that the plaintiffs' capacity assessment report, obtained to determine the need for a litigation guardian, was protected by solicitor-client and litigation privilege and not subject to disclosure.

The defendants brought a motion seeking a ruling that serving a subpoena on a doctor would allow them to receive the doctor's entire clinical notes and records without the doctor being sworn or called as a witness.

The plaintiffs opposed this.

The court dismissed the defendants' motion, holding that Rule 53.04(1) of the Rules of Civil Procedure requires a witness's attendance and testimony at trial, and that a subpoena cannot be used to bypass established discovery processes or to obtain documentary disclosure without the witness being subject to cross-examination.

The court emphasized that such a practice would lead to "trial by ambush" and discourage early settlement.

The defendants brought a motion for leave to admit an expert report from Dr. Armstrong concerning the plaintiff's life expectancy in a personal injury action.

The court found that while the defendants provided a reasonable explanation for the late delivery of the report and that the plaintiffs were not prejudiced by the delay, the report itself was inadmissible.

The report failed to comply with Rule 53.03(2.1)6 by not providing a methodology or listing all relied-upon documents.

Furthermore, its probative value was deemed very low due to the expert's inappropriate analytical approach (life insurance vs. annuity) and use of general population statistics without proper explanation.

Finally, Dr. Armstrong was not qualified to provide a medical diagnosis as he had not been a member of the College of Physicians and Surgeons since 2010.

The motion for leave was dismissed, and the report was ruled inadmissible.

The Ottawa Community Housing Corporation (OCHC) sued Sloan Valve Company and Wolseley Canada Inc. for damages related to the alleged failure of the Flushmate System, asserting claims for breach of warranty under the Sale of Goods Act, negligence, and negligent misrepresentation.

The defendants brought a Rule 21 motion to strike OCHC's claims for breach of implied warranty against Sloan and negligence against both defendants, arguing that implied warranties under the Sale of Goods Act require privity of contract and that pure economic loss from non-dangerous, shoddy goods is not recoverable in negligence.

The court granted the defendants' motion, striking both the implied warranty claim against Sloan and the negligence claims against both defendants, affirming that privity is required for implied warranties under the SGA and that economic loss for non-dangerous goods is not recoverable in negligence.

OCHC was granted leave to amend its pleading regarding negligent misrepresentation.

The defendant Metrolinx brought a motion seeking an order to compel the injured plaintiff, J.E., to attend an in-person psychiatric assessment.

Metrolinx argued this was necessary to respond to evidence regarding J.E.'s psychiatric conditions, including a recent schizophrenia diagnosis.

The plaintiffs opposed, arguing their pleadings did not attribute the recent psychiatric conditions to the incident and that their expert, a neuropsychologist, could address the diagnoses.

The court dismissed Metrolinx's motion, finding that Metrolinx had not established the necessity of the in-person assessment to level the playing field, especially since their own psychiatrist had already provided a paper review report addressing causation.

The court emphasized that the plaintiff's pleadings did not allege the 2017 incident caused the 2023 psychiatric conditions and that the role of treating healthcare professionals as participant experts is limited by the court's gatekeeper function.

The defendant, Kevin Rix, brought a motion to compel the plaintiff, Louise Charron-Rix, to attend a defence orthopaedic assessment and to extend the time for serving the resulting report.

The court dismissed the motion, finding that the defendant's request was made too late, three years after the plaintiff's initial expert report and just two months before trial.

The court emphasized the prejudice to the plaintiff and the risk of delaying the trial, noting that the updated medical records did not disclose new diagnoses justifying a late assessment and that the defendant had not previously asserted the necessity of such an examination.

The defendant brought a motion to set the prejudgment interest rate on non-pecuniary damages awarded to the plaintiffs by a jury at 1.3% instead of the prescribed 5%.

The plaintiffs cross-moved, seeking an 8.46% rate for both non-pecuniary and past pecuniary damages.

The court granted the defendant's motion, reducing the prejudgment interest on non-pecuniary damages to 1.3%, citing low prevailing prejudgment interest rates and the future loss component of the award.

The plaintiffs' cross-motion was dismissed, with the court maintaining the default 0.8% rate for past pecuniary damages, rejecting the plaintiffs' arguments for a higher rate based on their investment returns or the defendant's insurer's returns.

This endorsement addresses a request from the parties to schedule a 20-day judge-alone trial in two non-consecutive, two-week tranches to secure earlier trial dates.

The court, acting as the local administrative judge for civil cases, granted the request.

The decision acknowledged the general preference for continuous trials but found the non-continuous format warranted due to significant delays in the case (partially administrative and pandemic-related) and the consent of all parties.

The court emphasized the need to avoid further deterioration of evidence and provide closure to the plaintiff, who had been involved in litigation for many years.

The Court of Appeal for Ontario issued supplementary reasons to its earlier judgment in Nemchin v. Green, 2021 ONCA 238, which had allowed the appellant's appeal regarding the "top-up" of long-term disability benefits assigned to the respondent's insurer, Aviva.

This addendum addresses the treatment of potential tax refunds from Sun Life's remittances and the allocation of expenses related to pursuing such refunds.

The court clarified that while Aviva is not compelled to seek tax refunds or cease tax deductions, if Aviva chooses not to pursue a tax refund, it must reimburse the appellant's reasonable expenses for bringing such an application, as Aviva would ultimately receive the benefit of any tax refunds.