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 defendants brought a motion for leave to appeal an order dated October 21, 2020.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the responding parties in the agreed-upon amount of $6,000.

The respondents were injured in a motor vehicle accident while in the course of their employment.

They elected to opt out of WSIA benefits to join a class action and subsequently applied for Statutory Accident Benefits (SABS).

After the class action was dismissed, the insurer terminated their SABS, arguing the election was invalid.

The Licence Appeal Tribunal found the election was made in good faith to pursue the class action, not primarily to claim SABS.

The Divisional Court dismissed the insurer's appeal, holding that the Tribunal applied the correct legal test and reasonably concluded that the ultimate dismissal of the class action did not retroactively invalidate the good faith of the initial election.

The appellant appealed a Master's order dismissing her motion to substitute a named individual for a 'John Doe' defendant on the basis of misnomer, or alternatively to add the individual after the expiry of the limitation period.

The appellant had the vehicle's license plate number since the motor vehicle accident but did not identify the owner until after the limitation period expired.

The Divisional Court found no palpable and overriding error in the Master's conclusion that this was not a classic misnomer and that the appellant failed to exercise due diligence to discover the defendant's identity.

The appeal was dismissed.

The appellant insurer appealed a summary judgment decision finding that the defendant had cancelled her automobile insurance policy with the respondent insurer prior to a motor vehicle accident.

The appellant argued the motion judge erred regarding the onus of proof, relied on hearsay evidence, and failed to draw an adverse inference.

The Court of Appeal dismissed the appeal, finding the motion judge's conclusion that the policy was cancelled was amply supported by the record, including business records showing the cancellation request and a corresponding credit.

The plaintiff moved for judgment on an accepted offer to settle, seeking a determination on the applicable prejudgment interest rate.

Shortly before the offer was accepted, an amendment to the Insurance Act came into force, reducing the prejudgment interest rate for non-pecuniary damages.

The plaintiff argued the amendment was substantive and did not apply retroactively, while the defendants argued it was procedural and did apply.

The court held that the amendment to the calculation of prejudgment interest was procedural in nature and therefore applied retroactively, resulting in the lower interest rate being applied to the settlement amount.

The appellant appealed a Master's order dismissing his motion to set aside a Registrar's dismissal of his motor vehicle accident action for delay.

The action was dismissed after the appellant's counsel inadvertently missed the deadline to set the matter down for trial.

The Divisional Court allowed the appeal, finding the Master made palpable and overriding errors in assessing the Reid factors and failed to take a contextual approach.

The court noted the appellant's clear intention to proceed, the solicitor's inadvertence due to staff changes, and the lack of prejudice to the respondents.

The dismissal order was set aside and the action revived.

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 infant plaintiff sued the defendant for damages arising from a motor vehicle accident.

The defendant appealed an order striking out her third party claim against the infant plaintiff's mother.

The motion judge had struck the claim on the basis that the plaintiff's claim was limited to the defendant's proportionate degree of negligence.

The Court of Appeal amended the formal order on consent to explicitly state that the plaintiff's claim is limited to the damages apportioned to the defendant's relative degree of fault, and otherwise dismissed the appeal.

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.

Following the dismissal of the appeal and the allowance of the respondent's cross-appeal on costs, the Court of Appeal determined the costs of the trial and appeal.

The parties agreed to $10,000 for the appeal costs.

For the trial costs, the respondent sought $76,244.00 in fees.

The court declined to award substantial indemnity costs from the date of a Rule 49 offer because the statement of claim was amended later to add the successful cause of action under the Sale of Goods Act.

Noting that the preparation time was lengthened by unsuccessful claims and that the costs sought were disproportionate to the $66,380.39 recovery, the court fixed the respondent's trial costs at $35,000 plus disbursements.

The appellant manufactured and sold a fuel storage tank to the respondent.

Less than five months after being put into service, the tank leaked diesel fuel due to internal corrosion, causing significant damage.

The trial judge awarded damages to the respondent for negligence and breach of the implied warranty under the Sale of Goods Act.

On appeal, the Court of Appeal upheld the trial judge's finding that the amendment to plead the Sale of Goods Act was not statute-barred.

The Court dismissed the appeal, finding that the appellant breached the implied condition of merchantability under s. 15(2) of the Sale of Goods Act, as the defect existed at the time of delivery even if its exact cause was unknown.

The respondent's cross-appeal on costs was allowed.

The plaintiff was seriously injured in a motor vehicle accident.

The driver of the vehicle he was in was convicted of dangerous driving causing bodily harm.

In the subsequent civil action, the trial judge ruled that the criminal conviction and its essential facts were conclusive of the driver's negligence, relying on the abuse of process doctrine to prevent relitigation.

The jury found the convicted driver 100% negligent.

The appellant insurer appealed, arguing the abuse of process doctrine was misapplied and prevented them from showing the other driver was also negligent.

The Court of Appeal dismissed the appeal, holding that the trial judge properly applied the doctrine to prevent relitigation of the criminal conviction's essential facts, which did not preclude the appellant from attempting to prove the other driver's negligence.