Karim N. Hirani

The plaintiff initiated a civil action against the Town of Ajax after tripping and falling on a sidewalk discontinuity.

While the parties settled the quantum of damages, the issue of liability remained.

The court found that the sidewalk was in a state of non-repair, establishing a prima facie case of liability against the Town.

However, the Town successfully invoked the statutory defence under section 44(3)(a) of the Municipal Act, 2001, by demonstrating it did not know and could not reasonably have been expected to know about the specific state of repair of the sidewalk before the accident.

Consequently, the action against the Town was dismissed.

The court approved a $350,000 settlement for a plaintiff with a cognitive disability arising from a motor vehicle accident.

The primary issue for determination was whether the plaintiff's $200,000 share of the settlement should be managed via a structured settlement or a "Henson Trust." The court approved the legal fees and disbursements but indicated a preliminary view that a structured settlement, likely for 15 years, was mandatory under O. Reg. 461/96, s. 6(1), given the plaintiff's disability and the settlement amount, reserving final decision pending further submissions from counsel.

The appellant insurer appealed a declaration that it owed the respondent builder a duty to defend under a commercial general liability policy.

The underlying action involved alleged deficiencies in construction and repairs of a boathouse and cottage.

The insurer argued the policy was occurrence-based and that the property damage was known prior to the policy period.

The Court of Appeal upheld the application judge's decision, finding that the pleadings raised the mere possibility that damage occurred during the policy period, thus triggering the duty to defend.

The appeal on costs was also dismissed, with the court reaffirming that an insurer breaching its duty to defend must pay full indemnity costs incurred by the insured to enforce that duty.

The plaintiff brought a motion for leave to amend her statement of claim to correct a misnomer or alternatively add a new defendant in place of a fictitiously named “John Doe Construction Company.” The proposed defendant opposed the motion on the basis that the amendment would constitute the addition of a new party after expiry of the limitation period.

The court held that the pleadings did not clearly identify the proposed defendant as the intended party and therefore did not meet the legal test for misnomer.

The court further held that the plaintiff failed to demonstrate reasonable diligence to discover the identity of the alleged tortfeasor within the limitation period.

The motion to amend the claim was dismissed.

The defendants sought leave to appeal to the Divisional Court from an interlocutory order requiring them to produce summaries of facts, observations, and conclusions contained in investigation reports listed in Schedule B of their affidavit of documents, along with will‑say statements of intended witnesses.

The moving parties argued the order improperly expanded documentary discovery by compelling disclosure of information contained in litigation‑privileged materials and effectively permitted indirect discovery outside the oral discovery process.

The court held that the order did not establish a new legal principle but was a fact‑specific procedural response to unusual circumstances, including late disclosure of Schedule B documents long after discoveries had occurred.

The information ordered produced was information that would have been available on examination for discovery under Rule 31.06.

Leave to appeal was therefore not warranted.

The plaintiffs sought an extension of time to serve a statement of claim on a contractor nearly nine years after the action was commenced, and the defendants moved to dismiss the entire action for delay.

The court found the plaintiffs’ efforts to locate and serve the contractor were lackadaisical and that significant prejudice resulted from the lengthy delay, including loss of records, faded memory, and the death of a witness.

Accordingly, the court refused to extend time for service on that defendant.

However, although the court found a period of “inexcusable delay” in prosecuting the action, it held that the remaining defendants had not demonstrated prejudice sufficient to create a substantial risk that a fair trial was no longer possible.

The motion to dismiss the entire action for delay was therefore refused.