Kenneth Ciupka

The plaintiff, Kathleen MacNeill, sought damages for injuries allegedly sustained after ingesting a deliming agent in coffee served at a McDonald’s drive-thru.

The court found that while the incident was unsettling, the evidence did not establish that the plaintiff suffered any serious or permanent injury causally related to the incident.

The court rejected the plaintiff’s claims for general, income, and future care damages, awarding only $5,000 for temporary pain and inconvenience.

The decision turned on findings of credibility, causation, and the weight of expert and lay evidence.

The defendants brought a motion seeking an order to compel the plaintiff to attend three defence medical assessments and for leave to serve defence expert reports late, after failing to comply with the timelines mandated by Rule 53.03 of the Rules of Civil Procedure.

The court dismissed the motion, finding that the defendants failed to provide a "reasonable explanation" for their non-compliance, as required by Rule 53.08.

The court emphasized that administrative failures or inattentiveness by counsel or staff do not constitute a reasonable explanation for such delays.

The plaintiff brought a motion to amend the statement of claim to reduce the prayer for relief to an agreed-upon total of $152,500, continue the action as a simplified proceeding under Rule 76, and strike the jury notice.

The defendants opposed, arguing prejudice from the loss of a jury trial.

The court granted the motion, finding it in the interests of justice due to significant changes in the litigation, including the deaths of two original plaintiffs, the recent agreement on damages, and the benefits of a more expeditious and cost-effective resolution under simplified procedure, despite the substantive right to a jury trial.

The defendant, Aviva Insurance Company of Canada, brought a motion to strike two Requests to Admit (RTAs) or, in the alternative, to withdraw deemed admissions that arose from their failure to respond to the RTAs.

The plaintiff argued that the non-response was deliberate and part of a pattern of uncooperative litigation conduct.

The court found the RTAs were not an abuse of process but allowed the withdrawal of admissions, finding a reasonable explanation (inadvertence) and no uncompensable prejudice to the plaintiff.

Despite the defendant's success on the motion, the court deprived them of costs due to their overall pattern of non-responsiveness and lack of cooperation, sanctioning their litigation conduct.