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 moving party brought a motion for leave to appeal the order of Justice Edwards dated June 21, 2021.

The Divisional Court dismissed the motion and ordered costs in the amount of $5,000 to be paid to the responding parties within thirty days, to be divided among them as they deem reasonable.

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.

Following a trial where the plaintiff's negligence action was dismissed on causation, the successful defendants sought partial indemnity costs of approximately $60,000.

The court considered the plaintiff's success on the issues of duty of care, breach, and foreseeability, which consumed significant trial time.

The court also factored in the economic disparity between the personal plaintiff and the insurer-backed defendants, who refused to mediate or make a Rule 49 offer.

After deducting the plaintiff's costs thrown away from two trial adjournments and the costs of an expert witness whose testimony would have been unnecessary had the defendants complied with statutory requirements, the court reduced the remaining costs by 50% to reflect the plaintiff's partial success on the issues.

The plaintiff was ordered to pay costs of $13,743.92.

The plaintiff was assaulted by two unknown individuals in the stairwell of a municipal parking garage.

He sued the city and its contracted security company for negligence and breach of the Occupiers' Liability Act, alleging inadequate security measures.

The court found that both defendants owed a duty of care and breached it by failing to conduct threat/risk assessments, install video cameras in stairwells, or implement adequate security patrols.

However, the action was dismissed because the plaintiff failed to prove causation; the assault lasted only 30 seconds, meaning it could not have been prevented even if proper security measures had been in place.

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 appellant appealed a Small Claims Court decision finding it liable under the Occupiers' Liability Act for injuries the respondent sustained after tripping on an exterior mat at a hotel.

The Divisional Court allowed the appeal, finding the trial judge made palpable and overriding errors by imposing a higher standard of care than the law requires and by concluding the mat was a hazard without sufficient evidentiary basis.

The action was dismissed.

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.

In a personal injury action arising from a motor vehicle collision, the plaintiffs brought a motion after the matter had been set down for trial seeking a sworn affidavit of documents, production of surveillance materials, particulars regarding surveillance activities, and related disclosure orders.

The court considered the interaction between Rule 48.04 of the Rules of Civil Procedure and the mandatory disclosure obligations under Rule 30.03.

It held that leave was not required to compel service of a sworn affidavit of documents or to seek production of surveillance materials under Rule 30.04(5), though leave was required for certain discovery-related requests.

The court further held that disclosure of two surveillance reports constituted an implied waiver of litigation privilege over a third report relating to the same surveillance subject matter.

Orders were made requiring service of a sworn affidavit of documents, production of existing surveillance materials, and provision of specified surveillance particulars, while requests for future surveillance disclosure and foundational investigative materials were dismissed.