Barry L. Evans

Costs ruling following a jury trial in which the plaintiff succeeded on a malicious prosecution claim but failed on wrongful arrest and excessive force claims.

The jury awarded $63,900 in damages, which exceeded the plaintiff's Rule 49 offer to settle.

The court applied a 20% reduction to counsel fees to reflect divided success, deducted $20,000 for the use of two senior counsel, and disallowed expert disbursements of $19,700 related to the unsuccessful claims.

The court rejected a distributive costs approach and held that the plaintiff was entitled to substantial indemnity costs from the date of the Rule 49 offer, awarding total costs of $180,220.70.

The decision addresses a dispute over a jury verdict in a civil action brought by Andrew Sanayhie against the Durham Regional Police Services Board and two officers.

The plaintiff alleged wrongful arrest, excessive force, and malicious prosecution.

The jury's initial verdict was inconsistent, awarding damages for malicious prosecution despite finding no malice.

The court sent the jury back for clarification, and the second verdict found malice and again awarded damages.

The court held that it was appropriate to seek clarification from the jury before discharge, dismissed the defendants’ motion for judgment in their favour, and entered judgment for the plaintiff on malicious prosecution and legal expenses.

The court considered whether a key police witness, Officer Jonathan Hood, should be permitted to testify virtually due to psychological health concerns.

The plaintiff objected, arguing in-person testimony was necessary for the jury to assess credibility and demeanor.

The court reviewed the relevant Rules of Civil Procedure and expert evidence from Dr. Christine Hansen, ultimately concluding that the balance of convenience favoured allowing virtual testimony in light of Officer Hood’s diagnosed PTSD and related conditions.

The moving parties brought a motion for leave to appeal the order of Speyer J. dated October 29, 2021.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the responding party in the agreed amount of $2,825.

The appellants appealed a small claims court decision ordering them to pay $5,628.41 for damage to a rental car provided to the appellant driver as a temporary substitute automobile.

The driver was entirely not at fault for the accident.

The Divisional Court allowed the appeal, holding that section 263(5)(a.1) of the Insurance Act extinguished the rental company's right of action against the driver under the rental agreement because he was not at fault.

The court also rejected the rental company's argument that it could claim directly against the driver's insurer, concluding that the statutory scheme requires the rental company to look to its own insurer for compensation.

The appellant appealed a Small Claims Court decision dismissing its claim for $20,000 in liquidated damages for the alleged breach of a non-export clause in a vehicle sales agreement.

The trial judge found the appellant failed to prove on a balance of probabilities that the vehicle had been exported.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the evidence, including his decision to give little weight to an untested written statement from the manufacturer.

The plaintiff appealed a trial judge's decision finding she did not meet the threshold requirements under s. 267.5 of the Insurance Act.

The plaintiff argued the trial judge committed palpable and overriding errors by failing to explain his preference for conflicting medical evidence and by omitting reference to the evidence of her chiropractor.

The Divisional Court dismissed the appeal, holding that the standard of review is palpable and overriding error, and finding no such error in the trial judge's careful review of the evidence.

The defendant brought a motion seeking to transfer an action from Oshawa to Toronto, either to be tried together with an existing Toronto action or as a standalone transfer.

The plaintiff opposed the motion and delivered notice of intent to make oral argument.

The court, noting that the motion sought additional relief beyond a simple transfer and that the plaintiff had requested an oral hearing under Rule 37.12.1(5)(d), ordered that the defendant's motion be set down for an oral hearing before a judge in the Toronto Region.

The appellant appealed a trial decision that awarded her $10,000 for an ankle injury sustained in a slip and fall, but dismissed her claim that the fall caused or exacerbated a neck injury.

The appellant argued the trial judge failed to consider the evidence holistically to infer causation.

The Divisional Court applied the palpable and overriding error standard of review and found no error in the trial judge's analysis of causation.

The appeal was dismissed.

Following a jury trial where the plaintiff was awarded $62,500 in general damages for injuries sustained in a rear-end motor vehicle accident, the defendants brought a threshold motion under s. 267.5(5) of the Insurance Act.

The court reviewed the medical evidence and surveillance footage, noting inconsistencies in the plaintiff's testimony and evidence of her ability to perform daily activities.

The court concluded that the plaintiff failed to prove her injuries substantially interfered with her usual activities of daily living.

The defendants' motion was granted, barring the plaintiff's claim for non-pecuniary loss.

During a jury trial for a personal injury claim arising from a motor vehicle accident, the plaintiff brought a motion to exclude portions of the defence orthopedic expert's proposed testimony.

The plaintiff objected to the expert testifying about symptom exaggeration and the theory of chronic pain syndrome (central sensitization).

Applying the Mohan and Abbey frameworks, the court allowed the expert to testify regarding symptom exaggeration, finding it within his clinical expertise.

However, the court excluded his opinions on central sensitization, ruling he lacked the necessary qualifications and his evidence failed the gatekeeper cost-benefit analysis.

The expert was also restricted from testifying about undisclosed research and cautioned to present his evidence professionally.

During a personal injury jury trial arising from a motor vehicle accident, the defendants sought to introduce surveillance videos of the plaintiff from 2013 and 2015 as substantive evidence.

The plaintiff objected, arguing the videos lacked probative value because she had already testified she could perform the recorded activities on a 'good day,' and that their admission would be prejudicial.

The court rejected the plaintiff's arguments, finding the videos relevant to assessing the degree of her impairment and concluding that their probative value outweighed any prejudicial effect.

The 2013 and 2015 surveillance videos were ruled admissible.

The appellant sued a public transit commission after falling on a bus when another passenger flipped up an accessible seat.

At trial, the judge granted the transit commission's motion for non-suit, finding no evidence of the standard of care.

On appeal, the appellant argued the driver had special knowledge and should have warned her.

The Divisional Court dismissed the appeal, holding that the trial judge did not err in finding the appellant failed to establish a prima facie case of negligence by omission.

Following the release of the court's decision on the appeal, the parties filed written submissions regarding costs.

The Court of Appeal fixed costs in favour of the successful respondent in the amount of $20,000 all inclusive.

The appellant appealed the dismissal of his action to set aside three inter vivos monetary transfers and a testamentary bequest of Canada Savings Bonds made by his late father to the respondent, his sister.

The appellant argued the trial judge erred in finding sufficient corroborating evidence to rebut the presumptions of resulting trust and undue influence, and that the testamentary gift adeemed when the bonds were placed in a joint account.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the father had donative capacity, was not subject to undue influence, and intended the transfers as gifts.

The Court also found the bonds did not adeem as they were never endorsed by the father and remained registered in his name.

The appellant, a commercial property owner, was convicted of infractions under the Ontario Fire Code for permitting a private school to operate on the premises without compliance with fire safety regulations.

The appellant appealed, arguing that the private school was regulated by the Education Act and therefore exempt from the Ontario Fire Code under section 9.2.1.2 of Regulation 213/07.

The court dismissed the appeal, holding that the private school was not governed by the Education Act because no notice of intention to operate had been filed as required by section 16(1) of the Education Act.

The court found that the burden of proof rested on the appellant to establish the exemption and that a factual finding at trial could not substitute for the express statutory requirement of filing a notice of intention.

The appellant appealed a decision dismissing its claim on the basis that it was barred by a broadly worded release from a 1996 action settlement.

The Court of Appeal agreed with the motion judge that the claim related to the lands referred to in the release.

Furthermore, the court found that the appellant was an affiliate or associate of the releasing party due to the common control of both entities by the same individual.

The appeal was dismissed with costs.

The plaintiff brought an action against his sister, the defendant, alleging she misappropriated funds from their late father's estate while acting as his power of attorney.

The plaintiff sought over $800,000, claiming their father lacked capacity to make inter vivos gifts and was subjected to undue influence.

The court found that the father had the requisite capacity to make the gifts, initiated them independently, and was not under the defendant's undue influence.

The court also approved the passing of accounts prepared by an independent accountant, dismissing the plaintiff's claims for damages and ordering him to pay $150,000 in costs.

The appellant appealed the trial judge's decision upholding his termination for cause.

The appellant had been absent from work for three months, failed to provide satisfactory medical documentation, and ignored the employer's direction to file a claim for short-term disability benefits.

Although the trial judge failed to provide reasons for concluding that this misconduct justified termination without notice, the Court of Appeal dismissed the appeal.

The Court found that the trial judge's findings of fact, including the appellant's failure to communicate with the employer and his engagement in part-time work elsewhere while medically fit to return, supported the conclusion that the employment relationship had broken down.

The appellant appealed a judgment after his answer had been struck and he was barred from participating in the proceedings due to non-compliance with court orders.

He argued that the respondent's counsel breached a duty of candour and that the motion judge failed to test the merits of his struck answer.

The Court of Appeal dismissed the appeal, finding no breach of the duty of candour and concluding that the motion judge properly considered the claim on the merits despite the struck pleadings.