Joseph Youssef Obagi

This appeal concerned the standing of a defendant to challenge a s. 38 order under the Bankruptcy and Insolvency Act (BIA).

Traders General Insurance Co. appealed the dismissal of its motion to set aside a s. 38 order that allowed the Carrolls to commence a bad faith action against Traders.

The Court of Appeal affirmed that a proposed defendant generally lacks standing to challenge a s. 38 order, except in limited circumstances like abuse of process or misrepresentation, which were not found here.

The court also addressed, obiter, arguments regarding whether the Carrolls were creditors and whether the bad faith claim was property of the bankrupt estate, concluding these were not determinative issues for the s. 38 order itself, but rather for the merits of the assigned action.

The appeal was dismissed.

The appellant, Kossay El-Khodr, appealed an application judge's order to release $385,000 from a trust to Northbridge Commercial Insurance Company.

The funds were held pending the outcome of a previous appeal (the "Assignment Appeal") concerning the assignment of statutory accident benefits (SABs) for future medical and rehabilitation expenses.

The appellant argued that the conditions for release in the Minutes of Settlement were not fully met because the Assignment Appeal did not grant an assignment of *all* medical and rehabilitation benefits.

The Court of Appeal dismissed the appeal, finding that the application judge correctly interpreted the Minutes of Settlement in the context of the Assignment Appeal, which had assigned the specific categories of benefits at issue, thereby satisfying the conditions for the release of funds to the respondent and preventing double recovery.

This is a costs endorsement following an appeal where the Court of Appeal allowed the appellant's appeal, setting aside a trial judge's order requiring the appellant to "top up" assigned benefits due to tax deductions.

The appellant was awarded partial indemnity costs for the appeal.

This endorsement specifically addresses the costs of a prior motion before the trial judge (the "top up motion"), for which the trial judge had made no costs order.

The Court of Appeal found the appellant entitled to costs for this motion, ordering the respondent to pay $10,000, reasoning that the unanticipated nature of the trial judge's order and the parties' failure to seek an advance tax ruling contributed to the litigation.

The appellant appealed a trial judge's order requiring her to "top up" assigned long-term disability benefits to account for income tax deductions, arguing procedural unfairness and misinterpretation of s. 267.8 of the Insurance Act.

The Court of Appeal found the "top up" order procedurally unfair as it was not requested by parties and misinterpreted the statutory trust and assignment provisions.

The court held that the assignment applies to net after-tax payments, and the respondent's insurer, as assignee, must bear the burden of addressing tax implications with the insurer and CRA.

The appeal was allowed, and the "top up" order was set aside.

The Court of Appeal for Ontario granted leave to appeal and allowed an appeal from the Divisional Court, restoring a motion judge's order to strike jury notices in two civil actions (tort and accident benefits) arising from a motor vehicle collision.

The motion judge had struck the jury notices due to significant delays in scheduling civil jury trials in Ottawa amidst the COVID-19 pandemic, ordering judge-alone trials in tranches.

The Divisional Court had overturned this, finding the motion judge's decision arbitrary due to insufficient evidence of prejudice beyond delay.

The Court of Appeal held that delay alone can constitute prejudice, that appellate courts should show deference to discretionary case management decisions, and that the motion judge had sufficient evidence of local conditions to justify the order.

The plaintiff, Denis Roy, was seriously injured in a 2004 motorcycle accident, suffering physical and psychological impairments.

His insurer, Primmum Insurance Co. (referred to as TD), initially paid attendant care benefits (ACBs) and housekeeping benefits (HKBs) but later reduced and terminated them.

Roy applied for a catastrophic impairment (CAT) determination in 2010, which TD contested for over three years before conceding in 2014.

Roy then sought retroactive ACBs and HKBs, plus statutory interest, from the date of the accident.

The court found that Roy was catastrophically impaired from the date of the accident, that the claimed retroactive ACBs were reasonable and necessary, and that TD was obligated to pay statutory interest due to its failure to comply with SABS obligations and its duty of good faith.

The plaintiffs brought a motion for court approval of a partial settlement in a medical negligence action involving a person under disability.

The court found the supplementary motion record insufficient, noting non-compliance with filing rules (exhibits on USB stick, unnumbered pages) and a lack of substantive evidence.

Specifically, counsel failed to provide the necessary analyses of liability issues and the merits of claims against the settling defendants, relying on solicitor-client privilege which the court previously clarified was not a barrier.

The motion was adjourned to allow the plaintiffs to deliver the requisite evidence.

The applicant, Kossay El-Khodr, sought the court's interpretation of minutes of settlement signed with Northbridge Commercial Insurance Company and Royal & Sun Alliance Insurance Company of Canada.

The dispute centered on the distribution of $385,000 in settlement funds, contingent on the outcome of a Court of Appeal decision regarding the assignment of statutory accident benefits.

El-Khodr argued that the Court of Appeal's decision, which granted Northbridge an assignment of specific future medical and rehabilitation benefits but not all, did not fully trigger the conditions for payment to Northbridge as per the minutes of settlement, or that the contract was frustrated.

The court applied principles of contractual interpretation, finding that Northbridge was wholly successful on the appeal as it obtained the specific assignments it had sought.

The court dismissed El-Khodr's arguments, concluding that the conditions in the minutes of settlement were met, and ordered the release of the $385,000 to Northbridge.

The court issued a costs endorsement following post-trial motions concerning the assignment of Long Term Disability (LTD) benefits, pre-judgment interest (PJI) rates, and tax treatment of LTD benefits.

The defendant sought partial indemnity costs for these motions, while the plaintiff argued for each party to bear their own costs, citing legal developments and novelty of arguments.

The court awarded the defendant $8,000 in partial indemnity costs for the PJI portion of Motion 1, finding the plaintiff's argument on PJI not novel.

For the assignment and tax treatment issues (Motion 1 and Motion 2), the court found both parties responsible for the lack of agreement and ordered them to bear their own costs.

The court also addressed costs for preserving the plaintiff's LTD rights, which were to be paid by Aviva on a full indemnity scale, with quantum to be resolved by the parties or fixed by the court.

The appellants, Ronald Patterson and his family, appealed the dismissal of their motions to strike the jury and declare a mistrial in a motor vehicle personal injury action.

During jury deliberations, a juror accessed extrinsic information (Fault Determination Rules) online and shared it.

The trial judge conducted an inquiry, issued a correcting charge, and dismissed the motions.

The Court of Appeal dismissed the appeal, affirming that the trial judge properly inquired into the extrinsic information and effectively addressed its prejudicial effect with a correcting charge, which the jury was presumed to have followed.

The court found no misapprehension of evidence or patent unreasonableness in the trial judge's decision.

Traders General Insurance Company brought an unsuccessful motion to strike an action, which was tantamount to a motion for summary judgment.

This decision addresses the costs of that motion.

The Plaintiffs sought full indemnity costs, alleging serious misconduct by Traders, while the Trustee in Bankruptcy sought partial indemnity costs.

The court found no fraud or misconduct amounting to contempt by Plaintiffs' counsel.

Considering the importance and difficulty of the motion, the court awarded the Plaintiffs partial indemnity costs of $25,438.16 and the Trustee in Bankruptcy partial indemnity costs of $7,262.33, both inclusive of disbursements and HST, payable by Traders within 21 days.

Paul Boone, a person under disability, and his parents, challenged the constitutionality of Rule 7.08 of the Rules of Civil Procedure and s. 5 of O. Reg. 195/04, arguing they compel disclosure of solicitor-client or litigation privileged information, thereby infringing s. 15(1) of the Charter.

The court dismissed both constitutional challenges, finding a lack of factual basis to support the assertions of discriminatory effect and concluding that the impugned provisions do not mandate or inevitably require the disclosure of privileged information.

The motion for approval of a partial settlement was adjourned for the plaintiffs to provide the necessary evidentiary support.

The appellant appealed a jury verdict awarding the respondent approximately $700,000 in damages for personal injuries arising from a motor vehicle accident.

The main issue at trial was whether the respondent's post-traumatic stress disorder was caused by the collision or by an earlier sexual assault.

The trial judge excluded surveillance video evidence and Facebook posts that the defence sought to introduce as substantive evidence of the respondent's functionality.

The Court of Appeal found that the trial judge erred in excluding the surveillance evidence by dealing with it as a whole rather than taking a discrete approach to each video excerpt, and by concluding that the evidence could only be admissible if it directly contradicted the respondent's testimony.

However, the Court found that even if the surveillance evidence were admissible, it was not so significant that it would have affected the jury's verdict on damages.

The appeal was dismissed.

Michelle Connolly applied to be appointed guardian of property for her adult son, Michael Taylor Connolly ("Taylor"), who was injured in a pedestrian vehicle accident in 2003 and is incapable of managing his property.

The court had previously found Taylor incapable and Michelle suitable, but required further evidence on the management plan for his significant settlement assets.

After hearing expert evidence from BMO Nesbitt Burns, the court approved Michelle's management plan, which involved investing the net settlement funds in a conservatively managed portfolio rather than a structured settlement, citing flexibility and protection against inflation as key benefits for Taylor's long-term needs.

The court also dispensed with the requirement for a security bond at this stage.

The defendant brought a motion under Rule 2.1 of the Rules of Civil Procedure to dismiss the plaintiff's action as frivolous, vexatious, or an abuse of process.

The plaintiff sought damages for mental stress due to a breach of an agreement of purchase and sale, alleging the defendant, a lawyer for the prospective purchaser, owed a duty of care to the plaintiff (vendor).

The court found no duty of care existed between the purchaser's lawyer and the vendor.

The action was deemed frivolous, vexatious, and an abuse of process, leading the court to initiate the Rule 2.1 dismissal procedure, stay the action, and direct the Registrar to issue notice and restrict further filings.

The appellants brought a motion seeking an order to carry the Court of Appeal's order of September 19, 2017 into operation.

The Court of Appeal determined that the motion could not properly be characterized as an order under Rule 59.06(1)(c).

The dispute underlying the motion arose from the terms of the Minutes of Settlement and involved a question of contractual interpretation, which the Court found was properly resolved through a proceeding in the Superior Court of Justice rather than through the appellate motion process.

The motion was dismissed with costs awarded to the respondents.

The appellants appealed a motion judge's order making permanent a temporary sealing order relating to psychometric testing documents that had been marked as exhibits during a 2012 personal injury trial.

The respondents sought to make the temporary sealing order permanent to protect the integrity of test procedures and materials.

The Court of Appeal allowed the appeal, finding that the motion judge erred in two respects: first, by attempting to seal documents that were no longer in the court's possession as of December 2017, and second, by failing to properly apply the Sierra Club/Dagenais/Mentuk test for confidentiality orders.

The court emphasized that the motion judge should have examined the specific documents and considered whether they were already in the public domain through trial evidence and reasons, and should have weighed the public interest in access to materials facilitating cross-examination of expert witnesses.

The defendants moved for summary judgment to dismiss the plaintiffs' claims as statute-barred, arguing the two-year limitation period under the Limitations Act, S.O. 2002, c. 24, Sched.

B, began when the minor plaintiff's father, Nizam Siddiqui, sent a notice letter holding himself out as litigation guardian.

The plaintiffs sought partial summary judgment, contending the limitation period did not run until a formal litigation guardian affidavit was filed or a proceeding commenced.

The court, applying statutory interpretation principles and considering the historical protection of minors, held that merely sending a notice letter was insufficient to trigger the limitation period under s. 6(b) of the Act.

The term "litigation guardian" is a term of art requiring formal appointment or commencement of a proceeding under the Rules of Civil Procedure.

The defendants' motion was dismissed, and the plaintiffs' request for partial summary judgment was granted.

The appellants sought to add three health care providers as defendants to a medical malpractice action more than two years after the original injury.

The motion judge dismissed the motion on the basis that the limitation period had expired.

The Court of Appeal allowed the appeal, finding that the motion judge applied the wrong test under the Limitations Act, 2002.

The court held that the motion judge failed to make proper findings of fact regarding when the appellants knew or ought reasonably to have known of their claims against the proposed defendants.

The court also found that the motion judge erred in treating lack of due diligence as a standalone ground for finding claims statute-barred.

The key distinction was that the claims against the proposed defendants differed from the claim against the original defendant, as they involved allegations that the health care providers failed to take immediate action once cauda equina syndrome was suspected, information that was only revealed during examinations for discovery in 2015.

The plaintiff was catastrophically injured in a motor vehicle accident and sued the defendants for damages.

The jury found the defendants 62% liable and awarded damages of approximately $2.6 million, including $2.2 million for future care costs.

The trial judge made a conditional assignment order of the plaintiff's future statutory accident benefits (SABs) to the defendants' insurers under section 267.8(12)(a)(ii) of the Insurance Act.

The plaintiff appealed, arguing that the assignment violated strict matching principles and was premature.

The Court of Appeal dismissed the appeal, affirming the conditional assignment order and rejecting the strict matching approach in favour of a "silo" approach.

The court also denied leave to appeal the trial judge's substantial reduction of the plaintiff's costs award, which was reduced from $795,616.09 to $375,000 due to the plaintiff's counsel's conduct regarding a settlement offer, the lack of material benefit in proceeding to trial, and conduct that unnecessarily extended the trial.