Kevin P. Nearing

The City of Ottawa brought an ex-parte motion for an interim injunction against "Persons Unknown" (Freedom Convoy 2022) to restrain ongoing violations of municipal by-laws during a demonstration.

The court granted the injunction, finding overwhelming evidence of by-law breaches and significant disruption to city functions and public safety.

The decision applied the modified test for statutory injunctions under the Municipal Act, emphasizing the public interest in law enforcement over the need to prove irreparable harm or balance of convenience.

The applicant leased a scissor lift to a construction company, which agreed to name the applicant as an additional insured on its commercial general liability policy but failed to do so.

After an inspector was injured using the lift, the applicant sought a declaration that it was an 'Unnamed Insured' under the respondent insurer's policy and entitled to a defence and indemnity.

The court found that while the applicant met the definition of an 'Unnamed Insured', the policy contained an unambiguous restriction limiting coverage to liability arising out of operations performed in connection with a contract performed for the applicant.

Since the inspection was performed for the property owner and not the applicant, the application for coverage was dismissed.

The plaintiffs moved to strike the jury notices delivered by the defendants, seeking a judge-alone trial.

Their primary argument was the uncertainty of trial timing due to the COVID-19 pandemic's suspension of civil jury trials, and alternatively, the cumulative effect of this delay and the complexity of the issues.

The court granted leave to bring the motion, finding that the COVID-19 pandemic constituted a substantial and unexpected change in circumstances, making it "manifestly unjust" to refuse leave.

Applying the principles from *Louis v. Poitras*, the court found that the indefinite suspension of civil jury trials in Ottawa caused sufficient prejudice to the plaintiffs, justifying striking the jury notices.

The court concluded that justice would be better served by proceeding with a judge-alone trial in multi-week blocks, allowing for a more timely resolution.

Following substantial success on two applications and one motion brought by the insurer, the insureds sought partial indemnity costs of $64,222.72.

The insurer argued the amount was unreasonable and that the parties should bear their own costs or the amount should be significantly reduced.

The court found the issues were important and novel, justifying the insurer's pursuit of them, but held the insureds' claimed costs were excessive.

Applying principles of fairness, proportionality, and reasonableness, the court fixed the insureds' partial indemnity costs at $30,000 for fees, plus disbursements and costs of the submissions, for a total of $42,381.97.

The defendants appealed a motion judge's decision to strike their jury notices in two related motor vehicle accident actions.

The motion judge had struck the jury notices solely due to anticipated delays caused by the Covid-19 pandemic, without relying on specific evidence regarding the length of the delay or its impact on the parties or the administration of justice.

The Divisional Court allowed the appeal, finding that while delay and the pandemic's impact on the administration of justice are valid considerations, striking a jury notice based on a general assertion of delay without specific, localized evidence is arbitrary.

The appeal was granted without prejudice to the plaintiffs renewing the motion with proper evidence.

Following a tornado that destroyed or damaged their homes, the insureds and their insurer, Desjardins, disagreed on the value of the losses.

Desjardins brought applications and a motion to stay the insureds' bad faith action pending the completion of the statutory appraisal process.

The court held that an insured's lawyer may act as their appraiser, as appraisers are advocates and need not be impartial, unlike the umpire.

The court also held that insureds may wait to submit a proof of loss based on actual repair costs rather than estimates, provided they act diligently.

The motion to stay the bad faith action was dismissed, as the insurer would suffer no prejudice from parallel proceedings.

The plaintiffs commenced a tort action and an accident benefits action arising from a 2013 motor vehicle accident.

The actions were ordered to be tried together before a jury in April 2020, but the trial was suspended due to the COVID-19 pandemic.

Facing indefinite delays for civil jury trials, the plaintiffs moved to strike the jury notices.

The court granted leave to bring the motion and struck the jury notices, finding that the real and substantial prejudice caused by the delay outweighed the defendants' substantive right to a jury trial.

The court concluded that justice would be better served by proceeding to trial in a timely manner before a judge alone.

The plaintiffs, Bruce and Francine Cowley, brought a motion seeking a ruling that the defendants were not entitled to deduct long-term disability (LTD) benefits received by Mr. Cowley from any damages awarded for economic losses.

The plaintiffs argued that the LTD insurer's right of subrogation or the private insurance exception precluded such a deduction.

The court struck the plaintiffs' solicitor affidavits for failing to meet evidentiary standards but proceeded to rule on the legal issues.

The court held that the existence of a right of subrogation, whether equitable or contractual, is a complete bar to the defendants' request for a deduction of LTD benefits from economic loss damages.

The court also found that sections 30(14)-(15) of the Workplace Safety and Insurance Act were not relevant to this determination.

The appellants appealed a motion judge's order making permanent a temporary sealing order relating to psychometric testing documents that had been marked as exhibits during a 2012 personal injury trial.

The respondents sought to make the temporary sealing order permanent to protect the integrity of test procedures and materials.

The Court of Appeal allowed the appeal, finding that the motion judge erred in two respects: first, by attempting to seal documents that were no longer in the court's possession as of December 2017, and second, by failing to properly apply the Sierra Club/Dagenais/Mentuk test for confidentiality orders.

The court emphasized that the motion judge should have examined the specific documents and considered whether they were already in the public domain through trial evidence and reasons, and should have weighed the public interest in access to materials facilitating cross-examination of expert witnesses.

The plaintiff was catastrophically injured in a motor vehicle accident and sued the defendants for damages.

The jury found the defendants 62% liable and awarded damages of approximately $2.6 million, including $2.2 million for future care costs.

The trial judge made a conditional assignment order of the plaintiff's future statutory accident benefits (SABs) to the defendants' insurers under section 267.8(12)(a)(ii) of the Insurance Act.

The plaintiff appealed, arguing that the assignment violated strict matching principles and was premature.

The Court of Appeal dismissed the appeal, affirming the conditional assignment order and rejecting the strict matching approach in favour of a "silo" approach.

The court also denied leave to appeal the trial judge's substantial reduction of the plaintiff's costs award, which was reduced from $795,616.09 to $375,000 due to the plaintiff's counsel's conduct regarding a settlement offer, the lack of material benefit in proceeding to trial, and conduct that unnecessarily extended the trial.

This decision addresses pre-judgment interest and costs following a trial where the plaintiffs were awarded damages against Legalett Canada Inc. for negligent misrepresentation and breach of collateral warranty, but their claim against Joshua Teixeira was dismissed.

The court awarded the plaintiffs pre-judgment interest and partial indemnity costs from Legalett.

Concurrently, the court awarded partial indemnity costs to Teixeira from the plaintiffs.

The court declined to issue a Sanderson or Bullock order, finding it was reasonable for the plaintiffs to sue Teixeira personally and that the defendants did not improperly shift responsibility onto each other.

The plaintiffs brought a motion seeking approval of an infant settlement in a motor vehicle accident case.

The requested relief included dispensing with service of supporting affidavits, approval of a contingency fee retainer agreement (CFRA) for the infant plaintiffs, and approval of the settlement dismissing the infant claims without costs.

The court granted the order to dispense with service of affidavits and approved the infant settlement, finding it reasonable and in the infants' best interests.

However, the court declined to approve the CFRA, questioning its validity as it was entered into after the settlement had been reached.

The balance of the action was dismissed without costs.

The Plaintiff sought partial indemnity costs following a 15-day civil jury trial where she recovered $168,000 after a 30% finding of contributory negligence.

The Defendants argued for a reduction in costs, citing partial success on liability and future income claims, excessive preparation time, use of two senior counsel, and disbursements for out-of-town counsel and uncalled witnesses.

The court considered Rule 57 factors, including success, amount recovered, complexity, and offers to settle.

The Plaintiff's offer to settle was not exceeded, and the Defendants' offers were not close to the recovery.

The court reduced costs for using two senior counsel and disallowed disbursements for most uncalled witnesses, but allowed half of the out-of-town counsel's travel expenses.

The Defendants were ordered to pay $145,000 in fees plus HST and $85,000 in disbursements inclusive of HST.

The plaintiff brought a motion to strike the jury and proceed judge-alone after defence counsel referred to the plaintiff's case as a 'cash grab' during closing submissions.

The plaintiff argued the comment was inflammatory and implied dishonesty.

The defendants opposed the motion and argued the plaintiff also made emotional appeals using analogies.

The court found the 'cash grab' comment was prejudicial but concluded a correcting instruction would be sufficient to cure the prejudice.

The motion to strike the jury was dismissed, and the court declined to give correcting instructions regarding the plaintiff's analogies.

The defendants brought a motion for leave under s. 12 of the Evidence Act to call more than three expert witnesses, specifically seeking to file a report from a second physiatrist.

The plaintiff opposed the motion on the basis that the second physiatrist would provide redundant evidence identical to that of the defendants' first physiatrist.

The court denied leave, finding that calling multiple experts with the same specialty incurs unnecessary expense and is not necessary to assist the trier of fact.

The defendants brought a threshold motion following a jury trial, arguing the plaintiff did not sustain a permanent and serious impairment of an important physical, mental or psychological function from a 2014 motor vehicle accident.

The plaintiff suffered chronic pain that prevented her from pursuing a career as a police officer, leading the jury to award $175,000 for loss of future income and $65,000 for pain and suffering.

The court applied the Meyer v. Bright test and found the plaintiff's chronic pain constituted a permanent, serious impairment of an important function, dismissing the defendants' motion.

The defendants brought a motion in the middle of a jury trial for leave to file a new expert report from a vocational rehabilitation expert.

The plaintiff opposed the motion, arguing it would be highly prejudicial as she had already closed her case and her experts had testified.

The court dismissed the motion, finding that allowing the late report would be unfair and prejudicial, an adjournment was impossible due to the jury, and the defendants had long known the basis of the plaintiff's future income loss claim.

The appellants' income property was substantially damaged by fire.

They decided to demolish the site and build an eight-and-a-half-storey condominium, claiming replacement cost and building code upgrades under their insurance policy.

The insurer paid only the actual cash value, arguing the condominium was not a 'replacement' of 'like kind and quality'.

The Court of Appeal upheld the motion judge's decision, finding that the plain and ordinary meaning of the policy required any replacement to be of like kind and quality to trigger replacement cost coverage.

The appeal was dismissed.

This decision addresses a costs award and ancillary matters following a jury verdict in a personal injury action.

The jury found the defendants 62% liable, awarding substantial damages for pain and suffering, future care costs, and family law damages.

The court ruled on four key issues: ordering an assignment of accident benefits, limiting the McEwens' personal liability to insurance policy limits due to their bankruptcy, applying a 5% pre-judgment interest rate for non-pecuniary damages (finding the relevant statutory amendment not retrospective), and applying the new statutory deductible of $18,270.00 to the Family Law claim.

Despite the jury verdict exceeding some settlement offers, the court significantly reduced the plaintiffs' requested costs from $795,616.09 to $375,000, citing the plaintiffs' conduct, including late expert reports, changing their position on calling the plaintiff, and engaging in "sharp practice" by attempting to enforce a settlement offer while simultaneously initiating a bad faith claim against an insurer.

The plaintiffs' income property was destroyed by fire.

They sought a declaration that they were entitled to the full replacement cost under their insurance policy with the defendant to build an 8.5-storey condominium development.

The defendant argued the proposed development was not of 'like kind and quality' to the original structures.

The court held that the policy required replacement with property of like kind and quality to minimize moral hazard.

The court concluded the proposed condominium development was significantly different in size, utility, and design from the original property and did not meet the definition of replacement under the policy.

The motion was dismissed.