Jerry F. O’Brien

The defendants brought a motion for summary judgment to dismiss the plaintiff's negligence action arising from a fire that originated in the defendants' vacant industrial building and destroyed the plaintiff's adjacent property.

The court granted partial summary judgment, dismissing the claims related to the origin and cause of the fire because the specific cause could not be determined, rendering it an 'accidental fire' under s. 76 of the Fire Protection and Prevention Act.

However, the court dismissed the motion regarding the defendants' alleged negligence in failing to take reasonable precautions to prevent the spread of the fire, finding a genuine issue for trial regarding the applicable standard of care for a vacant industrial property owner.

The defendant sought leave to bring a motion for further examination for discovery of the plaintiff, Andrea Belanger, and to compel a first examination for discovery of the minor plaintiff, Zara Belanger.

The court found that leave was required under Rule 48.04(1) for both requests because the defendant had consented to trial adjournments.

Leave for Andrea Belanger's further examination was denied as no substantial or unexpected change in circumstances was shown.

However, leave was granted for Zara Belanger's examination due to her increased age, maturity, and the significant damages claimed on her behalf, with conditions on the scope and duration of the examination.

The moving party sought leave to appeal an unreported decision of Patterson J. dated October 22, 2019.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $5,000 inclusive.

The plaintiff motorcyclist brought a motion for partial summary judgment on the issue of liability following a motor vehicle accident.

The defendant driver had made a sudden left turn into the plaintiff's path of travel.

The court applied the summary judgment framework and utilized its fact-finding powers to resolve conflicts in the affidavit evidence.

The court found the defendant solely liable for the accident, concluding he failed to ensure the turn could be made in safety and failed to see the plaintiff who was there to be seen.

The court found no contributory negligence on the part of the plaintiff.

The defendant, The Corporation of the County of Essex, brought a motion requesting the plaintiff, Josef Stonehouse, attend a further neuropsychological assessment and for raw test data from the plaintiff's neuropsychologist.

The court denied the motion, finding that leave was required under Rule 48.04(1) as the trial record had been filed and parties had previously agreed they were ready for trial.

Even if leave were granted, the defendant failed to establish the necessity of the further examination, having made a strategic decision to delay and not comply with previous timetables, and considering potential prejudice and "practice effects" on the plaintiff.

Costs were awarded to the plaintiffs.

The plaintiffs moved for summary judgment on liability following a motor vehicle accident.

The court found the defendant driver negligent for driving too fast for conditions, losing control, and crossing into oncoming traffic.

The registered owner and beneficial owner (parents of the driver) were found vicariously liable under the Highway Traffic Act.

Claims of contributory negligence against the plaintiff driver were dismissed due to lack of evidence.

The matter was ordered to proceed to trial for assessment of damages and the threshold issue under the Insurance Act.

The defendants moved to dismiss the plaintiffs' action for inordinate and inexcusable delay, spanning 22 years.

The litigation arose from a business partnership dissolution and minority shareholder dispute from 1993, involving allegations of oppression, breach of fiduciary duty, and fraudulent manipulation of accounts.

The court applied the Langenecker v. Sauvé test under Rule 24.01, finding the delay inordinate and inexcusable, particularly due to the plaintiffs' failure to advance the case and the loss of their entire file, including critical financial documentation and the death of the primary plaintiff and key accountants.

The court concluded that a fair trial was no longer possible due to both presumed and actual prejudice to the defendants.

The plaintiffs' action was dismissed for delay.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits.

The insurer requested an Examination Under Oath (EUO), which the applicant refused to attend, arguing the insurer failed to provide sufficient reasons as required by s. 33(4)3 of the Schedule.

On a motion, the Arbitrator held that the requirement to provide reasons for an EUO is a matter of form, not substance, and the insurer's notice was sufficient.

The Arbitrator also ordered the insurer to produce its complete accident benefits file, redacted for privilege, and directed that this production must occur prior to the applicant attending any further EUO to prevent a tactical advantage.

The plaintiff moved for summary judgment on liability arising from a highway collision in which she was struck from behind while walking on the shoulder.

The court applied the post-Hryniak summary judgment framework and held there was no genuine issue requiring a trial on the liability issues.

The driver was found negligent given his undisclosed seizure history, recent seizure, alcohol consumption, late medication use, and breaches of G1 licence conditions.

The court also found negligent entrustment against the defendant who allowed him to drive and held the vehicle owners vicariously liable under s. 192 of the Highway Traffic Act.

The plaintiff was permitted to proceed to an assessment of damages, and partial indemnity costs were fixed.

The plaintiffs brought an action for damages after a student suffered a brain injury following an altercation with another student during a morning playground game at school.

The claim alleged negligent supervision by the school board, principal, and teachers, inadequate supervision planning, and failure to identify the students as requiring heightened monitoring due to prior behavioural issues and bullying.

The court applied the prudent parent standard under the Education Act and relevant case law governing school supervision.

It found that the school maintained an adequate supervision plan and that supervising teachers were circulating appropriately at the time of the incident.

The altercation occurred suddenly during an otherwise acceptable playground activity and would likely not have been prevented even with additional supervision.

The defendant in a motor vehicle accident claim moved for the production of correspondence relating to the settlement of the plaintiff's other motor vehicle accident claims, arguing it was necessary to prevent double recovery for economic loss.

The court dismissed the motion, holding that the settlement negotiations were protected by settlement privilege and were irrelevant.

The court noted that the plaintiff's damages would be determined through a global assessment based on medical evidence, ensuring the defendant would only pay for the damages they caused.