Joseph Youssef Obagi

In a judge and jury motor vehicle trial involving catastrophic injuries, the court considered whether future medication costs should be reduced to reflect potential public drug coverage available when the plaintiff turned 65.

Applying purposive statutory interpretation to s. 267.8(12)(a)(v) of the Insurance Act, the court held that ODBP coverage is not a 'payment' to which the plaintiff is entitled because no money or transferable value is delivered to the insured person.

As a result, any future ODBP benefit was not assignable to the defendants.

The jury was therefore entitled to consider possible future public drug coverage as a contingency in assessing future medication costs.

The appellants appealed a trial judgment finding them liable for fraud and breach of contract related to a carpet supply and installation contract with a public housing corporation.

The trial judge found the appellants engaged in a deliberate scheme of falsifying invoices and supplying substandard materials, awarding compensatory damages, punitive damages, and full indemnity costs.

The Court of Appeal upheld the trial judge's findings on liability, compensatory damages, and costs, confirming that a contractual stop-payment clause was not a penalty or liquidated damages provision.

However, the Court allowed the appeal in part to set aside the joint and several nature of the punitive damages award and the punitive damages awarded against the deceased employee's estate, leaving the principal appellant solely liable for the punitive damages.

The appellant appealed a trial judgment granting the respondents ownership of a portion of a road allowance by adverse possession and finding an easement of necessity over a gravel road on the appellant's property.

The Court of Appeal upheld the adverse possession finding, concluding the trial judge reasonably interpreted a 1998 agreement as not interrupting the ten-year possession period.

However, the Court set aside the finding of an easement of necessity, holding that necessity must be assessed at the time of the original grant, at which point the road allowance provided legal access.

The gravel road was instead declared an access road under the Road Access Act.

The plaintiff, a former tenant of a public housing corporation, sued the corporation and its lawyer after being evicted due to mould and water infiltration that rendered her unit uninhabitable.

The defendants brought motions to strike the statement of claim.

The court struck the claim against the lawyer, finding no cause of action exists against opposing counsel for actions taken in their client's interest.

The court also struck the claim against the corporation, finding the eviction issues were already decided by the Landlord and Tenant Board and any claim for rent abatement was statute-barred under the one-year limitation period in the Residential Tenancies Act.

The action was dismissed without leave to amend.

In a personal injury action arising from a motor vehicle accident, the plaintiffs sought an order under Rule 30.10 of the Rules of Civil Procedure requiring a non-party medical assessment company to produce its complete files relating to defence medical examinations.

The plaintiffs alleged that partial productions suggested the company may have reviewed or revised draft expert reports prepared for the defendants.

The court applied the two‑part Rule 30.10 test of relevance and trial fairness, emphasizing concerns about the independence and integrity of expert witnesses.

Finding that the requested documents could reveal whether third‑party influence affected expert reports and that the materials were unavailable from other sources, the court concluded that production was necessary for trial fairness.

Leave to bring the motion was granted and the non‑party was ordered to produce the complete files.

The appellants appealed a trial decision granting the respondents title to a disputed strip of land between their adjoining properties by adverse possession.

On appeal, the appellants argued for the first time that the finding of adverse possession did not justify granting title to the full width of the 2.03 metres vested by the trial judge.

The Court of Appeal dismissed the appeal, noting that the issue of width was not raised at trial, the survey was presented on consent, and there was ample support in the record for the trial judge's finding.

In a long‑term disability insurance action, the plaintiff brought a preliminary motion to strike portions of an affidavit attaching a psychiatrist’s report relied on by the defendant in support of a motion for additional medical examinations under s. 105 of the Courts of Justice Act.

Alternatively, the plaintiff sought the right to cross‑examine the psychiatrist.

The court held that the report was not being tendered as expert opinion evidence but merely to demonstrate that the examining physician recommended additional testing.

Because the court was not asked to accept the scientific validity of the recommendations, the report could be attached to an affidavit on information and belief and did not trigger the right to cross‑examine the physician.

The preliminary motion was therefore dismissed and the main motion for further examinations was permitted to proceed.

The Children's Lawyer and other appellants appealed a decision dismissing their application to appoint an independent trustee for an inter vivos spousal trust.

The appellants alleged that the respondents, who were directors of the corporation wholly owned by the trust, committed a breach of trust by declaring dividends in excess of net income.

The Court of Appeal dismissed the appeal, finding that the respondents' actions as directors were governed by the Business Corporations Act, not the trust agreement, and did not constitute a breach of trust.

The court also dismissed an application to admit fresh evidence and upheld the application judge's order that costs be paid out of the estate.

The defendants moved under Rule 63.02(1) of the Rules of Civil Procedure for a stay pending appeal of a trial decision granting the plaintiffs title to a disputed strip of land by adverse possession.

The court applied the three‑part test requiring a serious issue to be tried, irreparable harm, and balance of convenience.

Although the parties agreed the latter two elements were satisfied because the vesting order would render the appeal moot, the court held the appellants failed to demonstrate a serious issue with a reasonable prospect of success.

The alleged errors concerning the adverse possession test, factual findings, and natural justice were unsupported assertions.

The motion for a stay pending appeal was therefore dismissed.

A property dispute concerned a narrow strip of land between neighbouring residential properties.

The applicants sought declarations and a vesting order establishing title to the strip by adverse possession.

The court examined decades of evidence showing that the applicants and their predecessors openly used and maintained the disputed strip as part of their driveway and yard, believing a hedge marked the boundary line.

Applying the test for adverse possession and the provisions of the Limitations Act, the court found that more than ten years of continuous, open, notorious, and exclusive possession had accrued prior to the application of the Land Titles system.

The court also found the possession reflected a good faith boundary mistake shared by neighbouring owners.

Title of the respondents to the disputed land was extinguished and vested in the applicants.

Following a prior judgment finding the defendants liable for a fraudulent carpet supply scheme, the court issued supplementary reasons clarifying how the plaintiff must elect judgment between an undisclosed principal and its agents for contract damages while allowing fraud-based damages to be enforced against all defendants.

The court explained the composition of the compensatory damages award and confirmed that only the contract-based component required an election of judgment.

In determining costs, the court considered the discretion under s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure.

Given the defendants’ fraudulent conduct and the complexity and length of the litigation, the court concluded that full indemnity costs were justified.

The plaintiff was awarded $630,475.47 in costs jointly and severally against the defendants.

The respondent was rendered paraplegic in a motor vehicle accident.

His mother took an unpaid leave of absence to provide 24-hour care.

The insurer argued that under SABS-2010, it was only required to pay attendant care benefits for the 40 hours per week of paid employment the mother forgone, as that was the extent of her 'economic loss'.

The Court of Appeal held that economic loss serves as a threshold for entitlement to attendant care benefits, not as a measure of the quantum.

Once the threshold is met, the insurer must pay for all reasonable and necessary care provided, subject to statutory maximums.

The appeal was dismissed.

Following litigation concerning the resignation of a trustee and the mechanism for appointing replacement trustees under a family trust, the court determined the issue of costs.

Competing groups of beneficiaries had disputed whether the court should appoint an institutional trustee or whether the mechanism set out in the testator’s will should govern.

Although one group succeeded on the substantive issue, the court held the cross-application seeking an independent trustee was reasonably necessary to ensure proper administration of the estate.

Applying Rule 57.01 of the Rules of Civil Procedure and the principles governing estate litigation costs, the court concluded that fairness and the importance of the issues justified payment of most parties’ costs from the estate.

The court fixed specific amounts payable to each party.

The applicant sought to resign as trustee of a family trust.

The Office of the Children's Lawyer brought a cross-application to appoint a new independent trustee, arguing that the settlor's children, who intended to appoint themselves as trustees pursuant to the trust agreement, had abused their discretion as directors of the trust's holding company.

The court found no evidence of abuse of discretion that would justify interfering under s. 5(1) of the Trustee Act, and held that the executors could appoint the next trustees pursuant to the trust agreement.

Following a partially successful appeal, the court determined the appropriate costs award.

The appellant was awarded $25,000 inclusive of disbursements and taxes for the costs of the appeal.

The costs of the trial were reserved to the trial judge hearing the new trial.

The appellant was injured when the respondent lost control of his vehicle on an icy road, crossed the centre line, and struck the appellant's stopped vehicle.

At trial, the respondent did not testify, and the jury found no negligence on his part, dismissing the action.

The Court of Appeal allowed the appeal and ordered a new trial on liability, holding that crossing the centre line in breach of the Highway Traffic Act establishes a prima facie case of negligence.

Absent any explanation from the respondent to negate this evidence, the jury's verdict was unreasonable.

The respondent lessor sued the appellant lessee for damages arising from an oil spill from an above-ground storage tank.

The appellant brought a motion under Rule 21.01(1)(a) to determine whether the commercial lease contained a covenant by the respondent to insure against the loss, which would bar the action.

The motion judge found no such covenant and allowed the action to proceed.

On appeal, the Court of Appeal held that the jurisprudence was unsettled and it was not plain and obvious whether the lease contained such a covenant.

The court set aside the motion judge's determination on the covenant issue, leaving it for trial, but upheld the dismissal of the appellant's motion to dismiss the action.

The plaintiff, injured at age 15 in 2002, commenced an action against the property owners in 2006.

The defendants added two other individuals as third parties.

In 2009, the plaintiff moved to add the third parties as defendants.

The master and Divisional Court dismissed the motion, finding the claim was not discovered before January 1, 2004, and that a minor could not be deemed to have discovered a claim under s. 5(1)(b) of the Limitations Act, 2002.

The Court of Appeal allowed the appeal, holding that actual knowledge does not require knowledge of legal consequences, and that the lower courts erred in law by failing to consider whether the claim was discoverable by a reasonable person with the minor's abilities and circumstances.

The applicant, catastrophically injured in a motor vehicle accident, sought determination of the amount of attendant care benefits payable under the Statutory Accident Benefits Schedule, O. Reg. 34/10.

The insurer limited payments based on the number of hours of economic loss sustained by the family member providing care, rather than the full amount assessed in the Form 1.

The court interpreted the definition of “incurred” expense under s. 3(7)(e) of the SABS and held that proof of economic loss is only a threshold requirement to establish that the expense was incurred.

Once that threshold is met and the insured is obligated to pay the caregiver, the insurer must pay the reasonable and necessary attendant care expenses up to the statutory maximum.

The insurer’s proportional calculation based on lost hours was rejected.

Following a nine‑week jury trial arising from a motor vehicle accident, the plaintiffs obtained a damages award substantially lower than the amount claimed.

The defendants relied on Rule 49.10(2) of the Rules of Civil Procedure and argued they were entitled to partial indemnity costs from the date of a pre‑trial offer to settle because the judgment was allegedly less favourable than their offer.

The court held that although the offer met the timing requirement, the offer’s treatment of prejudgment interest on a lump‑sum amount was ambiguous and incapable of precise calculation for mixed heads of damages attracting different statutory interest rates under the Courts of Justice Act.

Because the offer lacked sufficient certainty to trigger the Rule 49 cost consequences, the defendants failed to meet their burden under Rule 49.10(3).

Considering the Rule 57 factors and the circumstances of the litigation, the court awarded the plaintiffs their partial indemnity costs throughout the proceeding.