Justin S. Linden

The applicant, a defendant in a personal injury action arising from a hunting trip where his firearm discharged, sought a declaration that the respondent insurers owed a duty to defend under a club policy endorsement.

The respondents denied coverage, arguing the incident occurred while setting up a tent, not 'hunting', and that their policy was excess.

The court found a mere possibility of coverage, as 'hunting' could broadly include setting up camp.

The court also held the policy was primary but contained an excess clause irreconcilable with the applicant's homeowner policy, triggering the doctrine of equitable contribution for defence costs.

The defendants brought a motion for leave to amend their statement of defence to plead that the plaintiffs' claim was statute-barred under the 15-year ultimate limitation period.

The plaintiffs opposed the motion and brought a cross-motion seeking leave to amend their statement of claim and conduct further discovery if the defendants' motion was granted.

The court granted both motions, finding that the proposed amendments were not abusive, the limitation defence was viable, and any prejudice to the plaintiffs could be addressed by allowing them to amend their pleadings and through costs.

The court considered a motion for approval of a settlement in a civil action arising from the surreptitious recording and distribution of a nude video of a minor student at school.

The court found the materials filed in support of the settlement insufficient, particularly regarding the impact on the minor plaintiff, the litigation risks, and the rationale for the settlement quantum.

The court directed the parties to provide further and better materials addressing these deficiencies before the settlement could be approved.

This motion sought court approval for a proposed settlement of $45,000 for a minor plaintiff who suffered an ankle fracture during exercise instruction at a gym.

The defendants denied liability, raising issues of causation and damages.

The court approved the settlement, finding it reasonable, fair, and in the minor's best interests, considering the litigation risks and the minor's recovery.

The court also approved the contingency fees and disbursements, noting their role in providing access to justice.

The Estate of Helen Martindale brought a medical malpractice action against two emergency room physicians, Dr. Lee and Dr. Chiu, alleging negligence in their diagnosis and treatment of Helen Martindale's perianal pain, which was later diagnosed as anal cancer requiring an ileostomy.

The plaintiff contended that the doctors breached the standard of care by failing to properly diagnose, investigate, and provide adequate follow-up.

The court found that both Dr. Lee and Dr. Chiu met the applicable standard of care, concluding that their assessments and treatment plans were reasonable given the patient's presentation and the circumstances at a community hospital.

The court also found the plaintiff's evidence unreliable regarding follow-up instructions and determined that no imaging was medically necessary at the time of the initial emergency room visits.

As no breach of the standard of care was found, the issue of causation was not determined, but the court noted that the plaintiff failed to prove that any alleged breach caused the need for an ileostomy.

The action was dismissed.

In a medical negligence action, the plaintiff sought to call multiple expert witnesses of the same specialty to opine on the same issues.

During a trial management conference, the pretrial judge ordered the plaintiff to elect which experts would testify to avoid duplicative evidence.

The plaintiff objected, arguing that only the trial judge had jurisdiction to limit expert witnesses.

The court affirmed its jurisdiction under Rule 50 of the Rules of Civil Procedure to make orders streamlining expert evidence and preventing duplication, emphasizing the need for trial efficiency and early disclosure.

The moving parties, Her Majesty the Queen in Right of Ontario and Joel Breault, brought a motion for leave to appeal an order of Croll J. dated September 24, 2021.

The Divisional Court dismissed the motion for leave to appeal.

Costs were fixed at $2,500 for the Landry plaintiffs and $2,500 for the Davies defendants, payable by the moving parties.

The defendants brought a motion at the commencement of trial to exclude a late-served expert radiology report from the plaintiff.

The plaintiff argued the report was necessary for a fair determination on the merits, as it analyzed actual CT images rather than relying on previous radiology reports.

The court found the evidence relevant, probative, and necessary.

The court granted leave to admit the late-served report and adjourned the trial to allow the defendants to obtain a responding radiologist's report.

The plaintiff brought a medical malpractice action against her rheumatologist, alleging he breached the standard of care by misdiagnosing her with gout, failing to perform a joint aspiration, and prescribing Allopurinol without informed consent, which led to her developing Stevens-Johnson Syndrome.

The court dismissed the action, finding that the defendant met the standard of care of a reasonable community rheumatologist in diagnosing gout clinically and prescribing Allopurinol.

The court also found that informed consent was obtained and that the plaintiff failed to prove causation, as expert evidence established she had a genetic predisposition making the adverse reaction inevitable regardless of the starting dose.

The applicants in the main proceeding sought access to youth criminal records related to a sexual assault investigation for use in a civil action.

The Attorney General and the Chief of Police brought a preliminary motion seeking release of the records to them to determine if other young persons, such as witnesses or victims, should be given notice of the application due to privacy interests.

The court dismissed the motion, holding that the Youth Criminal Justice Act's statutory scheme for access to records does not require notice to witnesses, and the court cannot effectively amend the legislation to create a new notice provision.

The moving parties, acting personally and as estate trustees, brought a motion for leave to appeal the order of Sheard J. dated December 21, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs fixed at $5,000 payable to the responding parties.

The plaintiffs commenced a medical malpractice action after a relative's death, which the defendants argued was statute-barred under the Trustee Act.

The plaintiffs pleaded fraudulent concealment of CT imaging to toll the limitation period.

The motion judge dismissed the negligence claims, finding no causal connection between the concealed imaging and the failure to sue within the limitation period, but allowed breach of contract and PHIPA claims against the hospital to continue.

The Court of Appeal allowed the plaintiffs' appeal, holding that the motion judge erred by deciding the factual question of fraudulent concealment as a question of law under Rule 21.01(1)(a).

The Court found the plea of fraudulent concealment was neither patently ridiculous nor manifestly incapable of proof, and that factual disputes regarding causation should not be determined on such a motion.

The defendants, who are psychotherapists sued for professional negligence in a family law dispute, moved for the production of the plaintiff's matrimonial lawyer's file.

The plaintiff opposed, claiming solicitor-client privilege.

The court held that by pleading the defendants' misconduct caused him to incur approximately $900,000 in legal fees, the plaintiff put his state of mind and his lawyer's advice in issue.

The court found an implied waiver of privilege and ordered the production of the file, subject to specific claims of litigation privilege for documents prepared for the current action.

The plaintiffs requested a chambers appointment to establish a timetable in a negligence claim arising from a death at a long-term care facility.

The plaintiffs sought to amend their statement of claim to include punitive damages after discovering care providers allegedly falsified notes.

The court ordered a timetable for the motion to amend, production of medical records, and examinations for discovery.

The defendants brought a motion to transfer the plaintiff's action from Brampton to Windsor.

The plaintiff, a self-described problem gambler, sued the defendants for losses sustained at Caesars Windsor.

The court applied a holistic analysis of the factors under Rule 13.1.02(2)(b) of the Rules of Civil Procedure.

Finding that the events occurred in Windsor, the damages were sustained there, the community had an interest, and a trial could be heard much sooner in Windsor, the court concluded that Windsor was a significantly better venue.

The motion to transfer was granted.

The plaintiff sought damages for injuries sustained in an unprovoked assault at a banquet facility.

Three defendants were noted in default.

Following an assessment of damages hearing, the court awarded the plaintiff $125,000 for pain and suffering, $25,000 for future treatment, $2,296.87 for an OHIP subrogated claim, and $50,000 for loss of competitive advantage, totaling $202,296.87.

The court also awarded costs of $67,390.82 against the defaulting defendants.

The defendants moved to set aside a default judgment, arguing that their former counsel's negligence, including undisclosed Law Society suspensions and failure to attend to the action, led to the default.

The plaintiffs contended the defendants were aware or should have been aware of their lawyer's issues and lacked an arguable defence.

The court applied the Chitel test, finding the motion was brought without delay, the default was adequately explained by counsel's negligence, and the defendants presented an arguable defence regarding the renovation contract.

The court emphasized that clients should not be irrevocably jeopardized by counsel's neglect and that allowing the judgment to stand would bring the administration of justice into disrepute.

The default judgment and a prior order striking the defence were set aside, and garnished funds were ordered returned as no exceptional circumstances for a freezing order were shown.

The defendant brought a motion for summary judgment to dismiss the plaintiffs' claim for damages arising from a slip and fall on a stairway.

The plaintiff fell while carrying a large basket down the stairs at a home owned by the co-defendant, where the moving defendant frequently stayed.

The court found genuine issues for trial regarding whether the moving defendant was an 'occupier' under the Occupiers' Liability Act and whether she breached a duty of care by instructing the plaintiff to carry the basket downstairs.

The motion for summary judgment was dismissed.

Following the dismissal of an appeal from the Small Claims Court regarding a claim for $4,931.92 in unpaid rehabilitation fees, the successful respondent sought costs on a substantial indemnity basis.

The court rejected the request for substantial indemnity costs, finding that a letter asking the appellant to abandon the appeal on humanitarian grounds did not constitute an offer to settle.

Applying the principle of proportionality under Rule 1.04(1.1) of the Rules of Civil Procedure, the court fixed the respondent's partial indemnity costs at $5,000 all-inclusive, an amount roughly equal to the original claim.

Residents of a Toronto apartment building sought certification of a class action following a fire allegedly caused by negligent maintenance of electrical systems and smart meters.

The proposed class sued the building owner, property managers, superintendent, and the electricity distributor.

The electricity distributor opposed certification, arguing the claim failed to disclose a viable negligence cause of action and that the certification criteria were not met.

The court held that the pleadings disclosed a viable negligence claim against the distributor and that the statutory and regulatory framework governing electricity distribution did not negate the claim at the certification stage.

The court certified the action as a class proceeding with a modified class definition excluding residents operating marijuana grow‑ops in the building.