Kenneth J. Raddatz

The appellants, Brandon Book and his parents, appealed a trial judge's decision dismissing their motion to set aside a 2015 personal injury settlement.

They argued Brandon was under a disability at the time of settlement and that it was unconscionable.

The Court of Appeal upheld the trial judge's findings, concluding there was no error in the capacity assessment and that the settlement should not be set aside, even if incapacity had been proven, given the principles of finality of judgments and the circumstances of the case.

The moving parties sought to set aside an order dismissing their personal injury action on consent, arguing that the primary plaintiff was a person under disability at the time of the settlement and that the settlement was unconscionable.

The court found that the plaintiff had the capacity to understand the information relevant to the settlement and appreciate its consequences, and was therefore not under disability.

Furthermore, the court held that even if the plaintiff had been under disability, the circumstances did not warrant setting aside a final judgment four years later, especially where the defendant settled in good faith and the plaintiffs could not return the settlement funds.

The motion was dismissed.

The plaintiff, catastrophically injured and with a reduced life expectancy, brought a motion to strike jury notices and expedite her civil trial due to the significant delays caused by the COVID-19 pandemic.

The court granted leave to bring the motion and conditionally struck the jury notices, allowing the matter to proceed as a non-jury trial if civil jury trials are not running when the case is called.

The court declined to order the matter be heard on the immediate pending sittings, deferring to the triage judge for expedition, acknowledging the defendant's counsel's scheduling conflict.

The estate of a deceased tenant brought an action in Superior Court for $500,000 in damages for injuries suffered when the deceased allegedly slipped and fell over a damaged carpet in a residential rental unit.

The motion judge dismissed the action, concluding the Superior Court lacked jurisdiction because the claim fell within the exclusive jurisdiction of the Landlord and Tenant Board and was outside the one-year limitation period prescribed under the Residential Tenancies Act, 2006.

The Court of Appeal allowed the appeal, holding that the Act does not grant the board exclusive jurisdiction over all claims of non-repair.

Where damages exceed the board's monetary jurisdiction, a party may commence proceedings in Superior Court.

Additionally, the one-year limitation period for board applications does not apply to Superior Court actions for non-repair; instead, the two-year limitation period under the Limitations Act, 2002 applies.

The defendant sought partial indemnity costs of $42,500 after successfully having the plaintiff's action dismissed on a jurisdictional issue.

The court noted that neither party raised the jurisdictional issue until the pretrial stage, resulting in approximately five years of unnecessary litigation.

Consequently, the court declined to award costs for the entire litigation period and fixed the defendant's costs at $7,500 inclusive of HST and disbursements.

The plaintiff estate sued the defendant landlord for personal injuries sustained when the deceased tripped over torn carpet in his rental unit.

The defendant moved to strike the claim, arguing the Landlord and Tenant Board had exclusive jurisdiction over claims of disrepair and the one-year limitation period under the Residential Tenancies Act had expired.

The court agreed, finding that the essential character of the dispute was a repair claim within the Board's exclusive jurisdiction, rendering the Occupiers' Liability Act inapplicable.

The action was dismissed.

The plaintiff moved to set aside a registrar's order dismissing the action for delay, made under Rule 48.14(1) for failing to set the action down for trial by a Master's deadline.

The court applied the four *Reid* factors: explanation for delay, inadvertence, promptness of motion, and prejudice to defendants.

The court found the plaintiff adequately explained the delay and that the failure to meet the deadline was due to inadvertence, not deliberate choice.

Although the motion was not brought promptly, the defendants admitted no actual prejudice.

The court distinguished *1196158 Ontario Inc. v. 6274013 Canada Ltd.* and found that finality should not override the plaintiff's right to a hearing on the merits given the lack of prejudice.

The motion was granted, and a new timetable was set, with costs awarded to the defendants.

The Court of Appeal for Ontario issued a costs endorsement following the appeals in Westerhof v. Gee Estate and McCallum v. Baker.

The court ordered that the costs of the appeal in McCallum v. Baker be awarded to the respondent, fixed in the amount of $60,000 inclusive of disbursements and applicable taxes.

Two personal injury appeals were heard together to determine the scope of Rule 53.03 of the Rules of Civil Procedure regarding expert witnesses.

The Court of Appeal held that Rule 53.03 does not apply to 'participant experts' (such as treating physicians) or 'non-party experts' who form opinions based on their observation of or participation in the events at issue, rather than being engaged by a party for the litigation.

In Westerhof, the trial judge's erroneous exclusion of such evidence warranted a new trial.

In McCallum, the trial judge correctly admitted the treating practitioners' opinion evidence.