Karl Arvai

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 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.

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 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 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 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 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.

The respondent was injured in a motor vehicle accident in Las Vegas, Nevada in 2005.

The dispute concerns her entitlement to benefits under the OPCF 44R Endorsement in her Ontario motor vehicle insurance policy.

At a June 30, 2016 pre-trial, both counsel agreed that Ontario law applies and signed a Rule 50.08(3) certificate confirming this.

Subsequently, the respondents' counsel learned of the Chomos decision, which held that threshold and collateral benefits questions are governed by the law of the place where the accident occurred.

At a second pre-trial on January 25, 2018, the respondents' counsel sought to withdraw the choice of law agreement.

The motion judge dismissed the appellant's cross-motion for a declaration that Ontario law applies and declared that Nevada law will apply.

The appellant appealed, arguing the parties had reached a binding litigation agreement.

The Court of Appeal dismissed the appeal, finding no binding agreement existed and that the respondents' counsel had made an inadvertent admission based on a misunderstanding of the law.

The plaintiff in a personal injury action moved to strike the defendants' jury notice, arguing complexity due to chronic pain claims and potential injustice.

The court dismissed the motion, finding that the case was not unusually complex and that juries are capable of assessing credibility in chronic pain cases, especially with proper judicial instruction on the reality of chronic pain as established by the Supreme Court of Canada.

The court also rejected the plaintiff's arguments that recent jury verdicts in chronic pain cases demonstrated inherent injustice or that the civil jury system was being inappropriately used by insurers.

A personal injury trial, which had been estimated to last 5-6 weeks, was declared a mistrial after 4.5 weeks due to grossly inaccurate trial duration estimates provided by counsel.

The court emphasized the critical importance of accurate estimates for the efficient administration of justice, juror experience, and access to justice for other litigants.

Despite repeated warnings and attempts to manage the schedule, the trial could not be completed within the confirmed timeframe.

The judge found that the pace of the trial, coupled with counsel's shifting strategies and "desperation" to conclude, made a fair and just completion impossible, necessitating the regrettable decision to declare a mistrial to prevent further waste and uphold the integrity of the justice system.

In this personal injury action, the plaintiff objected to the admissibility of defence surveillance video as substantive evidence during an ongoing civil jury trial.

The plaintiff argued that the video had low probative value, was potentially prejudicial, and that some portions were not disclosed in a timely manner under Rule 30.09.

The court dismissed the objection, finding the surveillance video prima facie relevant to the plaintiff's condition and abilities, and that its probative value was not outweighed by prejudicial effect.

The court granted leave for late disclosure under Rule 30.09, noting ample opportunity for review.

The ruling allowed the defendants to tender the video as substantive evidence, subject to specific qualifications regarding the exclusion of overly intrusive or misleading segments and directions on presentation to the jury.

The plaintiff in a personal injury action arising from a motor vehicle accident brought a preliminary motion to exclude photographs of vehicle damage at trial.

The plaintiff argued the photographs were irrelevant since liability was admitted, and that admitting them without expert biomechanical evidence would invite unguided speculation by the jury that minor vehicle damage equates to minor injury.

The court dismissed the motion, holding that the photographs were relevant to causation and admissible without expert evidence, as causation is a matter of common sense.

The court noted that a jury instruction would be given to clarify that serious injuries can still result from low-impact collisions.

In a personal injury action, the plaintiff objected to the defendants' attempt to introduce evidence and arguments suggesting that the plaintiff's receipt of collateral benefits was relevant to her motivation to work and her actual disability.

The court sustained the plaintiff's objection, ruling that such considerations were speculative and lacked relevance to the determination of disability.

The decision emphasized that while collateral benefits are relevant for calculating offsets, they should not be used to imply a lack of motivation to work or to undermine claims of disability.

In a personal injury action, the defendants objected to the plaintiff's proposed witness sequence, which intended to call a physiotherapist, Gloria Gilbert, as the first witness, followed by the plaintiff.

The defendants argued that the plaintiff should testify first to provide context for her subjective chronic pain claims.

The court dismissed the defendants' objection, allowing the plaintiff to call Ms. Gilbert first, provided the plaintiff excluded herself from the courtroom during Ms. Gilbert's testimony.

The court emphasized a litigant's right to present their case as counsel deems advisable, finding no compelling reason to interfere with the modest deviation from usual practice, especially since Ms. Gilbert was presented as a "participating expert" whose testimony would not inherently depend on the plaintiff's prior evidence.

The defendant insurer brought a cross-motion for a declaration that Ontario law applied to the assessment of damages in an underinsured motorist claim arising from a motor vehicle accident in Nevada.

The defendant relied on an agreement reached at a pre-trial conference where plaintiffs' counsel conceded Ontario law applied.

The plaintiffs sought to withdraw this admission, arguing it was based on a mistake of law regarding the interpretation of the OPCF-44R Endorsement and ignorance of binding appellate jurisprudence.

The court dismissed the defendant's motion, allowing the plaintiffs to withdraw the admission as there was no consensus ad idem and enforcing the agreement would cause significant prejudice to the plaintiffs.

The appellant appealed a jury verdict dismissing her action against her insurer for damages under unidentified motorist coverage.

The appellant claimed that an unidentified vehicle crossed the center line and caused her to lose control of her vehicle and roll into a ditch.

The jury answered "no" to the question of whether the unidentified driver's negligence caused the accident, but answered "yes" to whether the appellant's evidence of the involvement of an unidentified automobile was corroborated.

The appellant argued the jury's answers were inconsistent, that the trial judge erred in her charge on the standard of care in emergencies, the burden of proof, and that the charge was unbalanced.

The appellant also challenged the conduct of defence counsel.

The Court of Appeal dismissed the appeal, finding the jury's answers were reconcilable, the trial judge's charge was adequate, and any concerns about counsel's conduct were appropriately addressed.

The defendant, Coachman Insurance Company, brought a motion to amend its statement of defence and, in the alternative, for leave to withdraw alleged admissions concerning the involvement of an unidentified motorist.

The plaintiff, Margret Kabutangana, opposed the amendments, arguing they constituted a withdrawal of admissions.

The court first granted the plaintiff leave to file additional affidavit evidence.

On the main motion, the court determined that the defendant's original pleading did not contain unambiguous and deliberate admissions, thus Rule 51.05 (withdrawal of admissions) was not applicable.

The court then granted the defendant leave to amend its statement of defence under Rule 26, finding no uncompensable prejudice to the plaintiff, especially given the plaintiff's prior knowledge of the defendant's position and statutory obligations regarding corroborating evidence for damages exceeding $200,000.