Joseph Youssef Obagi

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.

Following substantial success on two applications and one motion brought by the insurer, the insureds sought partial indemnity costs of $64,222.72.

The insurer argued the amount was unreasonable and that the parties should bear their own costs or the amount should be significantly reduced.

The court found the issues were important and novel, justifying the insurer's pursuit of them, but held the insureds' claimed costs were excessive.

Applying principles of fairness, proportionality, and reasonableness, the court fixed the insureds' partial indemnity costs at $30,000 for fees, plus disbursements and costs of the submissions, for a total of $42,381.97.

The plaintiffs moved for a stay of a Divisional Court order that reinstated the defendants' jury notices, pending their motion for leave to appeal to the Court of Appeal.

The original motion judge had struck the jury notices due to COVID-19 delays in Ottawa, but the Divisional Court overturned this, finding the decision arbitrary.

Applying the RJR-MacDonald test and Sault Dock principles, the Court of Appeal granted the stay, finding a serious question to be tried regarding the Divisional Court's interference with the motion judge's discretion, irreparable harm to the plaintiffs if their scheduled judge-alone trial date was lost, and that the balance of convenience favoured the plaintiffs.

The defendants sought leave to appeal a motion judge's decision to strike their jury notice due to delays caused by the COVID-19 pandemic.

The Divisional Court refused leave, finding that the motion judge properly exercised their discretion in balancing the increased uncertainty of civil jury trials against the significant financial prejudice to the plaintiffs, who required extensive attendant care.

The court applied the recent framework from Louis v. Poitras and awarded costs to the plaintiffs.

The plaintiffs brought a motion during a damages trial to exclude the evidence of the defendants' expert physiatrist, Dr. Anthony Burns.

The plaintiffs argued the expert's evidence was unreliable, biased, and failed to meet the requirements of the Rules of Civil Procedure and the White Burgess test.

The court found that the expert relied heavily on a chronology prepared by defence counsel rather than source documents, failed to review the complete medical file, and altered his opinion without proper notice.

The court concluded the expert failed in his duty to provide fair, objective, and non-partisan evidence, and excluded his testimony in its entirety.

The defendants appealed a motion judge's decision to strike their jury notices in two related motor vehicle accident actions.

The motion judge had struck the jury notices solely due to anticipated delays caused by the Covid-19 pandemic, without relying on specific evidence regarding the length of the delay or its impact on the parties or the administration of justice.

The Divisional Court allowed the appeal, finding that while delay and the pandemic's impact on the administration of justice are valid considerations, striking a jury notice based on a general assertion of delay without specific, localized evidence is arbitrary.

The appeal was granted without prejudice to the plaintiffs renewing the motion with proper evidence.

Following a tornado that destroyed or damaged their homes, the insureds and their insurer, Desjardins, disagreed on the value of the losses.

Desjardins brought applications and a motion to stay the insureds' bad faith action pending the completion of the statutory appraisal process.

The court held that an insured's lawyer may act as their appraiser, as appraisers are advocates and need not be impartial, unlike the umpire.

The court also held that insureds may wait to submit a proof of loss based on actual repair costs rather than estimates, provided they act diligently.

The motion to stay the bad faith action was dismissed, as the insurer would suffer no prejudice from parallel proceedings.

The defendants brought a motion to compel the plaintiff to serve a further and better affidavit of documents, specifically seeking the production of her counsel's entire litigation file.

The defendants argued the file was relevant to quantifying damages, which they claimed was an essential element of the plaintiff's bad faith action against her insurer.

The court dismissed the motion, finding that a claim for punitive damages arising from a breach of the duty of good faith does not require proof of a distinct monetary loss.

Consequently, the requested documents were deemed irrelevant to the matters in issue.

The appellants appealed a trial judgment awarding the respondents over $2 million in damages arising from a motor vehicle accident where a pedestrian was struck.

The appellants argued the trial judge erred by discharging the jury mid-trial, refusing a mistrial, mishandling evidence of CPP disability benefits, and excluding surveillance videos.

The Court of Appeal dismissed the appeal, finding the trial judge had ample basis to discharge the jury due to scheduling issues and late disclosure of an umbrella insurance policy.

While the surveillance videos should have been admitted, their exclusion did not cause a miscarriage of justice given their minimal probative value.

The plaintiff was successful on a motion to strike a jury notice due to the COVID-19 pandemic.

The parties agreed that $15,000 represented partial indemnity costs for the motion.

The defendants argued that costs should be reserved to the trial judge or reduced due to the novel facts and mixed results.

The court rejected these arguments, finding the plaintiff was largely successful and the applicable legal test was well-settled despite the novel factual context.

Costs of $15,000 were awarded to the plaintiff payable forthwith.

The plaintiffs, who suffered catastrophic injuries in a motor vehicle accident, brought a motion to strike the jury notice due to the suspension of civil jury trials during the COVID-19 pandemic.

The defendants brought a cross-motion to adjourn the trial because the pandemic interfered with their ability to obtain responding medical reports.

The court granted the adjournment for six months to allow the defendants to obtain their medical assessments.

However, the court also struck the jury notice, finding that the indefinite delay of jury trials would cause undue financial prejudice to the plaintiffs, whose accident benefits were nearly exhausted.

The plaintiffs commenced a tort action and an accident benefits action arising from a 2013 motor vehicle accident.

The actions were ordered to be tried together before a jury in April 2020, but the trial was suspended due to the COVID-19 pandemic.

Facing indefinite delays for civil jury trials, the plaintiffs moved to strike the jury notices.

The court granted leave to bring the motion and struck the jury notices, finding that the real and substantial prejudice caused by the delay outweighed the defendants' substantive right to a jury trial.

The court concluded that justice would be better served by proceeding to trial in a timely manner before a judge alone.

The Court of Appeal previously awarded Traders General Insurance Company its costs of a panel review motion and invited written submissions on quantum.

Traders sought partial indemnity costs of $24,158.71, while the responding parties argued for $7,500 due to duplication of work from the initial motion.

The Court agreed there was some duplication and fixed costs at $15,000 inclusive of disbursements and taxes.

The applicants, who both required leg amputations following a motorcycle accident, sought funding for home modifications under the Statutory Accident Benefits Schedule.

The parties presented competing modification plans, with the applicants proposing a one-storey expansion and the respondent proposing a two-storey build.

The adjudicator found the applicants' plan to be reasonable and necessary, as it accommodated their wheelchair needs while preserving their pre-accident lifestyle and avoiding the safety risks of a two-storey design.

The adjudicator also awarded the applicants 25% of the value of a back-up generator under section 10 of Regulation 664, finding that the respondent unreasonably delayed its approval.

The plaintiff brought a motion to strike the defendants' jury notice in a motor vehicle accident claim, arguing prejudice due to the indefinite suspension of civil jury trials during the COVID-19 pandemic.

The court granted leave to hear the motion and took judicial notice of the fact that while a judge-alone trial could be scheduled in the near future, the timeline for resuming civil jury trials was unknown.

Balancing the substantive right to a jury trial against the need for a timely and affordable resolution, the court struck the jury notice but allowed the parties the option to return to court if a jury trial becomes available before the scheduled judge-alone trial.

The defendant brought a motion requesting that its summary judgment motion be heard before the plaintiff's motion for certification of a class proceeding regarding the calculation of long-term disability benefits.

The plaintiff opposed, arguing the motions should be heard together or certification first.

The court applied the factors from Canon v. Funds for Canada Foundation and determined that hearing both motions at the same time would be the fairest and most efficient manner of proceeding, avoiding potential delays and multiple appeals.

The defendant's motion was dismissed.

Traders General Insurance Company moved to review a single judge's decision denying it leave to appeal an order under the Bankruptcy and Insolvency Act.

The underlying dispute involved a bad faith claim assigned to the respondents by a discharged bankruptcy trustee following a motor vehicle accident judgment.

The Court of Appeal held that it had jurisdiction to review the single judge's decision because the judge had mistakenly declined jurisdiction by failing to address the merits of the leave motion.

Applying the Pine Tree Resorts test, the Court granted leave to appeal, finding that the proposed appeal raised prima facie meritorious issues of general importance to bankruptcy practice.

The applicant was injured in a motor vehicle accident and sought a catastrophic impairment designation under the Statutory Accident Benefits Schedule due to a mental or behavioural disorder.

The respondent insurer denied the designation.

The Tribunal found that the applicant suffered a Class 4 (marked) impairment in the domains of activities of daily living and adaptation to work or worklike settings, caused by an accident-related Somatic Symptom Disorder.

The Tribunal concluded the applicant was catastrophically impaired effective October 19, 2016.

The plaintiff brought a motion to compel the defendants to serve a further and better affidavit of documents in an action for punitive damages based on an alleged breach of the duty of good faith by her insurer.

The plaintiff argued that the defendants' Schedule 'B' improperly grouped privileged documents without listing them and omitted relevant communications between the insurer and the tortfeasors.

The court found that the plaintiff had satisfied the evidentiary burden to show relevant documents may have been omitted and ordered the defendants to produce a further and better affidavit of documents.

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.