Joseph Youssef Obagi

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.

Following the dismissal of the applicant's application, the successful respondent sought costs.

The respondent requested costs of $13,612.53, which was approximately twice the amount it had set out in its Form 57B costs outline delivered prior to the decision.

The court held that a party cannot seek costs exceeding the amount in its costs outline, as doing so would undermine the purpose of the rule requiring parties to commit to their costs positions.

The respondent's costs were limited to the amount requested in its costs outline.

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.

In an action regarding entitlement to catastrophic impairment benefits, the defendant insurer sought an order permitting its counsel to communicate with three of the plaintiff's former treating occupational therapists prior to calling them as witnesses at trial.

The insurer had retained two of the therapists to conduct section 42 assessments.

The court granted leave to bring the late motion but dismissed it on the merits.

The court held that the therapists owed a duty of confidentiality to the plaintiff arising from their therapeutic relationship, which was not waived by the plaintiff's participation in the section 42 assessments or by the limited consent forms he had signed.

Following a jury trial in a personal injury action where the plaintiff was awarded $698,112.58 in damages, the court determined the plaintiff's entitlement to costs.

The parties agreed on most rates and disbursements but disputed the senior counsel's hourly rate for 2017 and 2018, and whether the costs should reflect the net recovery after an assignment of collateral benefits.

The court fixed senior counsel's rate at $375 per hour, declined to reduce costs based on the uncertain future of collateral benefits, and awarded the plaintiff partial indemnity costs totaling $466,185.76.

Following a trial where the plaintiffs were awarded damages for a motor vehicle accident, the defendant brought a motion for a conditional assignment order of the plaintiff's Statutory Accident Benefits (SABS).

The parties disagreed on the effective date of the assignment.

The court held that the effective date of the assignment is the date of the reasons for judgment, but the assignment is conditional upon and triggered by the payment of the judgment in full.

In a post-trial ruling following a motor vehicle accident trial, the court determined the terms of an assignment of the plaintiff's long-term disability (LTD) benefits to the defendant's insurer.

The court held that the defendant is entitled to a credit for the gross amount of the LTD benefits, regardless of the tax deducted at source by the LTD insurer.

The court also ruled that the effective date of the assignment is the date of the jury's verdict, not the date the judgment is paid, and ordered the defendant to reimburse the plaintiff for reasonable costs incurred in preserving her right to the LTD benefits.

The moving party insurer sought to set aside an ex parte order granted under s. 38 of the Bankruptcy and Insolvency Act, which allowed the plaintiffs to pursue a bad faith claim against the insurer that had been assigned to them by the discharged trustee in bankruptcy.

The court dismissed the motion, finding that the insurer lacked standing to challenge the s. 38 order as it was not a creditor, debtor, or aggrieved party.

The court further held that the s. 38 order was properly obtained without notice to the insurer, the discharged trustee had the authority to assign the chose in action, and the bad faith claim was property that vested in the bankrupt estate.

The plaintiffs sought approval of solicitor-client accounts proposed by two law firms that represented them in a personal injury action arising from a motor vehicle accident.

The accounts were based on a previously approved contingency fee agreement.

The court approved the first lawyer's account for the main action but denied fees for the third party claim, as he undertook no risk regarding that claim.

The court approved the second law firm's account for the main action but reduced their proposed fees for the third party claim, finding the full contingency amount would be unreasonable.

The net settlement funds payable to the injured plaintiff were increased as a result.

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.

The court, on its own initiative, dismissed the plaintiff's action as frivolous, vexatious, and an abuse of process under Rule 2.1.01 of the Ontario Rules of Civil Procedure.

This decision was made after the plaintiff failed to provide written submissions within the prescribed 15-day period following notice that the court was considering such an order. interesting_citations_summary: > This case illustrates the court's inherent power and the application of Rule 2.1.01 to summarily dismiss actions deemed frivolous, vexatious, or an abuse of process, particularly when a plaintiff fails to respond to a notice of intent to dismiss.

It highlights the procedural mechanism for judicial gatekeeping to prevent unwarranted litigation. final_judgement: "The action is dismissed as being frivolous, vexatious and an abuse of the process of the Court." winning_degree_applicant: 5 winning_degree_respondent: 1 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2019 decision_number: 4311 file_number: "CV-19-80261" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc4311/2019onsc4311.html" cited_cases: legislation: - title: "Ontario Rules of Civil Procedure, R.R.O. 1990, sub-rule 2.1.01" url: "https://www.ontario.ca/laws/regulation/900194" case_law: [] keywords: - Dismissal of action - Frivolous - Vexatious - Abuse of process - Rules of Civil Procedure - Rule 2.1.01 - Ontario Superior Court areas_of_law: - Civil Procedure - Civil Litigation --- # Court File and Parties **Court File No.:** CV-19-80261 **Date:** 2019-07-16 **Superior Court of Justice - Ontario** **Re:** Samad Hoveyda, Plaintiff **And:** Mark Albert Robert Kairallah Habib, Defendant **Before:** Mr. Justice Robert N. Beaudoin **Counsel:** Joseph Obagi, for the Defendant **Heard:** By Requisition --- # Endorsement [1] On June 26, 2019, I directed the Registrar to give notice to the Plaintiff by way of Form 2.1A that the Court was considering making an order under [sub-rule 2.1.01 of the Ontario Rules of Civil Procedure R.R.O. 1990](https://www.ontario.ca/laws/regulation/900194), dismissing this action.

No written submissions have been received by the Plaintiff within the 15 day period prescribed in rule 2.1.01(3). [2] I accordingly dismiss this action as being frivolous, vexatious and an abuse of the process of the Court.

I further direct the Registrar to provide a copy of this Endorsement by mail to the Plaintiff and the Defendants. --- Mr. Justice Robert N. Beaudoin Date: July 16, 2019

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.