Karl Arvai

During a jury trial for a motor vehicle accident, the plaintiff called her treating psychologist to give evidence as both a participant expert and a Rule 53.03 litigation expert.

On cross-examination, it was revealed that the expert had not reviewed the plaintiff's pre-accident medical records or the full medical brief before authoring her reports, relying instead on summaries and the plaintiff's self-reports.

The court exercised its ongoing gatekeeping function and disqualified the psychologist as a litigation expert, finding her evidence lacked the requisite objectivity because she could not identify what documents she had reviewed.

The court instructed the jury to disregard her litigation expert opinions, though she was permitted to give participant expert evidence.

In a personal injury trial arising from a motor vehicle accident, the plaintiff sought to call a lay witness to testify about her pre-accident work performance and anticipated retirement age.

The plaintiff served the witness's willsay statement on the 14th day of trial.

The defendants objected to the late disclosure, arguing it amounted to trial by ambush.

The court denied the plaintiff leave to call the witness, finding that the late disclosure violated Rule 31.06 and the plaintiff's discovery undertakings.

The court held that the probative value of the evidence was modest, while the prejudice to the defendants was significant given the inability to investigate the claims mid-trial.

During a jury trial for a motor vehicle accident, the plaintiff sought to call her treating psychologist to give opinion evidence beyond that of a participant expert.

The defendant objected, arguing the psychologist's reports did not comply with Rule 53.03, the plaintiff had not sought leave to call more than three experts under s. 12 of the Evidence Act, and the psychologist lacked the requisite impartiality.

The court held that the reports collectively complied with Rule 53.03 and granted leave to call the witness, finding no trial unfairness or prejudice to the defendant.

The court also found no clear evidence that the treating relationship would prevent the psychologist from fulfilling her duty to the court, leaving the final assessment of her impartiality to a qualification voir dire.

The appellant estate appealed a motion judge's decision dismissing its motion to dismiss a solicitor's negligence action for delay.

The defendant solicitor had died unexpectedly during the litigation.

The appellant argued the loss of the solicitor's viva voce evidence caused actual prejudice.

The Divisional Court upheld the motion judge's finding that the documentary evidence was sufficient to ensure a fair trial and that the appellant failed to prove actual prejudice.

The respondent's cross-appeal regarding the motion judge's costs award was also dismissed.

The appellant, Zeljko Rajic, appealed a decision denying his entitlement to post-judgment interest following a settlement agreement with his former counsel and their law firm.

The Court of Appeal held that post-judgment interest under section 129 of the Courts of Justice Act does not apply where no court order for payment has been made, and the settlement did not expressly provide for such interest.

The appeal was dismissed, and costs were awarded to the respondents.

The moving party brought a motion for leave to appeal an order dated February 23, 2024.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties in the fixed amount of $4,581.11.

The Court of Appeal for Ontario issued a costs endorsement following an allowed appeal.

The appellant sought $18,760 in partial indemnity costs for the proceeding below, having filed an offer to settle for dismissal of the motion without costs.

The respondents proposed $6,000.

The court considered the time spent by both parties and fixed costs at $15,000, all-inclusive, to be paid by the respondents to the appellant for the lower court proceedings.

The Estate of Ivo Lepan appealed a motion judge's order that found the Estate had waived non-pecuniary damages claims related to statutory accident benefits and tort settlements.

The Court of Appeal found that the motion judge misapprehended the pleading and counsel's statements, concluding that the Estate had only given up pecuniary claims related to those settlements, not non-pecuniary damages.

The court emphasized that the amendments to the Statement of Claim were intended to address the issue of counsel disqualification, not to waive broader non-pecuniary claims.

The appeal was allowed, and the litigation was directed to proceed on the merits.

The moving party sought leave to appeal a lower court order dated August 1, 2023.

The Divisional Court granted the motion for leave to appeal, with costs reserved to the panel hearing the appeal.

This endorsement addresses a defendant's urgent motion seeking compliance with a prior court order compelling the plaintiff to attend a neuropsychological assessment.

The plaintiff's counsel advised that the plaintiff would not attend the assessment, citing a desire to seek leave to appeal the prior order, despite the assessment being tentatively scheduled and the order being released in advance.

The court emphasized that court orders are not optional and must be obeyed unless stayed or overridden.

The motion judge granted the defendant's requested relief, compelling the plaintiff's attendance at the assessment and awarding costs to the defendant for the necessity of bringing the motion.

The appellant appealed a Licence Appeal Tribunal decision that declined to order a special award under s. 10 of Regulation 664 for the respondent's alleged unreasonable withholding of Income Replacement Benefits.

The Divisional Court dismissed the appeal, finding that the issues raised regarding the adjudicator's assessment of expert evidence and the respondent's conduct were questions of fact or mixed fact and law, not extricable questions of law.

The court concluded there was ample evidence to support the adjudicator's factual findings.

The defendants brought a motion to enforce an alleged undertaking by the plaintiff's counsel to limit the scope of the plaintiff estate's solicitor negligence claim.

The estate's action stemmed from alleged improvident settlements of long-term disability and accident benefits claims, and pressure regarding a tort claim.

The defendants argued that the plaintiff's counsel had represented, both in correspondence and to the Divisional Court, that the claim would be limited to damages arising solely from the long-term disability settlement.

The court found that the plaintiff's counsel made an enforceable solicitor's undertaking to the court, which was relied upon by the Divisional Court in a prior appeal.

The court also found that any settlement privilege attached to the correspondence was waived by the subsequent open court representation.

Consequently, the motion was granted, and the plaintiff estate was held to have waived all claims for losses, including non-pecuniary damages, arising from the settlement or management of its accident benefits and tort claims.

The applicant requested a reconsideration of a decision denying an award for the respondent's alleged unreasonable withholding of income replacement benefits and costs.

The applicant argued the Tribunal erred in relying on the respondent's expert testimony and failing to consider the applicant's overall condition.

The Tribunal found no material error of law or fact that would have changed the outcome, noting that the respondent appropriately adjusted the claim and reasonably relied on its medical assessors.

The request for reconsideration was dismissed.

The plaintiff brought a motion seeking leave to amend the statement of claim to add The Dominion of Canada General Insurance Company ("Dominion") as an additional defendant, intending to advance a claim under a Family Protection Endorsement.

The motion was presented as being "on consent" of all parties.

However, the court found that while the plaintiff and the original defendants had consented, the formal consent of the proposed additional defendant, Dominion, was missing.

The court emphasized that under Rule 26.02(b) of the Rules of Civil Procedure, the formal consent of a person to be added as a party is required for a motion to proceed on consent.

The court declined to sign the order and required supplementary material confirming Dominion's formal consent or a notice of non-opposition before the motion could proceed in writing.

The defendants brought a motion seeking production of a future care cost report and an income loss report from the plaintiff's 2007 motor vehicle accident benefits file.

The plaintiff had sued for injuries sustained in a 2011 slip and fall.

The court dismissed the motion, finding that the requested reports were predicated on medical assumptions and had no relevance since the prior medical reports had already been disclosed to the defendants' experts.

The plaintiff moved to strike the jury notice in a 10-year-old personal injury action due to ongoing delays caused by the COVID-19 pandemic.

The plaintiff proposed a virtual, non-jury trial in tranches for earlier, more expeditious, and less costly resolution.

The defendants opposed, arguing for a "wait and see" approach to preserve their substantive right to a jury trial.

The court granted the plaintiff's motion, finding that the continued delay constituted real and substantial prejudice, especially given the action's tortured history and the uncertainty of civil jury trial resumptions.

The court emphasized that striking the jury notice was a proportionate response to mitigate delays and provide timely access to justice, aligning with appellate guidance that delay alone can justify striking a jury notice.

The plaintiff brought a motion to set aside a registrar's administrative dismissal and for summary judgment against one of the defendants.

The Arvai defendants successfully defended the motion and sought costs on a partial indemnity basis in the amount of $27,849.47.

The plaintiff argued for a proportionate amount between $8,180 and $8,800.

The court found the defendants' bill to be "breathtaking" but acknowledged the complexity and risk involved in the summary judgment motion.

Costs were awarded to the Arvai defendants in the amount of $17,371.54, inclusive of HST and disbursements.

The plaintiff brought a motion to set aside the administrative dismissal of its action for a litigation loan, extend the time to set the action down for trial, and obtain default judgment against one of the defendants.

The action had been dismissed for delay after more than five years of inactivity following the issuance of the statement of claim.

The court found that the plaintiff failed to provide an adequate explanation for the delay and that the defendants would suffer significant prejudice due to the high interest rate on the loan.

The motion was dismissed.

The appellants appealed a jury verdict awarding $55,000 in damages following a motor vehicle accident, arguing the assessment was inconsistent, unreasonable, and out of proportion to the injuries.

The Divisional Court dismissed the appeal, finding no obvious inconsistency in the jury's findings.

The court held that the verdict was reasonable, as the jury was entitled to assess the plaintiff's credibility and prefer the evidence of the respondent's medical expert over the appellants' expert.

The appellant appealed a jury verdict in a premises liability case arising from a slip and fall.

The jury found that the respondents exercised reasonable care to ensure the appellant was reasonably safe on the premises.

The appellant argued there was no evidence to support the verdict.

The Court of Appeal upheld the jury verdict, applying the stringent test for setting aside jury verdicts, which requires the verdict to be so plainly unreasonable and unjust that no jury acting judicially could have reached it.

The court found the appellant had merely asked the jury to reject defence evidence in favour of plaintiff's evidence, which was entirely within the jury's purview.