Mark Elkin

Following a five-day jury trial where the plaintiffs were awarded a net judgment of $18,000, the court addressed the parties' submissions on pre-judgment interest and costs.

The plaintiffs sought approximately $114,000 in partial indemnity costs plus disbursements, while the defendant argued against any costs award, contending the recovery fell within Small Claims or Simplified Rules jurisdiction, and sought costs for abandoned claims.

The court found that both parties' litigation strategies were inconsistent with the trial outcome, particularly noting the defendant's "no liability" stance and lack of a Rule 49 offer.

The court awarded the plaintiffs $50,000 in costs plus HST and $18,677.42 in disbursements, emphasizing that a defendant's failure to realistically assess risk can lead to a costs award even for a low judgment.

The defendant's request for costs on abandoned claims was denied.

Following the dismissal of the applicant's application for dependant support, the successful respondent sought costs against the applicant and a portion against the applicant's counsel personally.

The court applied the two-part test under Rule 57.07(1) and declined to order costs against counsel personally, finding it was not a clear case despite concerning conduct.

The court also declined to award substantial indemnity costs, but awarded the respondent $100,000 in partial indemnity costs against the applicant.

The defendant sought an adjournment of a long-standing motor vehicle accident trial, scheduled for June 2022, to allow for a Workplace Safety and Insurance Appeals Tribunal (WSIAT) determination regarding the plaintiff's employment status at the time of the accident.

The WSIAT application was filed at the eleventh hour, a decade after the action commenced and after multiple trial dates had been fixed.

The court dismissed the adjournment request, finding it unfair to the plaintiff to further delay the case due to the defendant's belated application, and that it was not in the interests of justice.

The plaintiff in a motor vehicle accident trial sought leave for late service of expert reports regarding past and future income loss and medical rehabilitation needs, citing cost as the reason.

The court denied leave, finding the explanation unreasonable and that granting leave would cause undue delay to the empanelled jury trial.

The court also limited the jury questions to general damages only, refusing to put questions on income loss, competitive advantage, or medical/housekeeping expenses due to insufficient evidentiary basis.

The jury awarded $25,000 in general damages, which resulted in a zero net award after the statutory deductible.

The Applicant sought dependant support from the Estates of his grandparents and uncle under the Succession Law Reform Act, and an order impressing assets with a trust.

The court dismissed the application, finding that the Applicant was not a dependant of any of the deceaseds as he was not receiving regular support immediately before their deaths.

The court also found no evidence that his uncle had demonstrated a settled intention to treat him as a child of his family, nor was there a basis for a resulting trust, constructive trust, or proprietary estoppel claim.

At the outset of a personal injury trial arising from a motor vehicle accident, the defendant moved to exclude expert evidence based on a brain SPECT scan used to diagnose a traumatic brain injury (TBI).

The court held that using a SPECT scan to diagnose TBI and distinguish it from anxiety or depression constitutes novel science.

Applying the reliable foundation test from R. v. J.-L.J., the court found the methodology had not been tested, lacked peer review, had no known error rate, and was not generally accepted by the relevant scientific community.

The evidence was ruled inadmissible.

The plaintiff sought damages for injuries sustained in a rear-end motor vehicle accident.

The court found the defendant entirely at fault.

The court concluded the plaintiff's injuries, which included chronic pain and post-concussion syndrome, met the statutory threshold as a permanent serious impairment of an important physical function.

The plaintiff was awarded $100,000 in general damages, $1,993.10 in special damages, and $143,560.78 for future care costs.

Claims for past and future income loss were dismissed as the plaintiff failed to establish she would have worked as a dental assistant but for the accident.

The plaintiff brought a motion to strike the defendant Metrolinx's jury notice in a personal injury action arising from a motor vehicle accident.

The plaintiff argued that because Metrolinx is a Crown agency, section 11 of the Proceedings Against the Crown Act mandated a trial without a jury.

The court dismissed the motion, finding that section 11 applies only to proceedings against the Crown itself, not to proceedings against Crown agents or corporations.

The defendants brought a motion for a mistrial during trial, alleging prejudice from a newspaper article and improper conduct by plaintiffs' counsel.

The court dismissed the mistrial motion, finding no real danger of prejudice as no jurors had read the article, and that appropriate judicial instructions could cure any potential harm.

The court also ruled on the admissibility of the plaintiffs' expert evidence regarding dependency loss, specifically allowing a scenario based on career advancement despite some foundational facts not being fully proven, emphasizing that the weight, not admissibility, of expert testimony is affected by unproven facts.

Following a jury verdict awarding the plaintiff damages for a motor vehicle accident, the defendants brought a threshold motion arguing the plaintiff's injuries did not meet the statutory exceptions under the Insurance Act.

The core issue was whether the accident caused the plaintiff's left knee injury, given his preexisting osteoarthritis.

The court preferred the plaintiff's expert evidence that the minor force of the accident converted his asymptomatic arthritis into symptomatic arthritis.

The court found the plaintiff met his burden of proof on causation for the knee injury, which satisfied the threshold requirements.

The defendants' motion was dismissed.

The plaintiff brought a motion for summary judgment in a civil claim for sexual assault, battery, and breach of fiduciary duty against her former criminal lawyer.

The defendant had previously pleaded guilty to criminal assault for the same incident but filed no evidence on the summary judgment motion, citing his Alzheimer's diagnosis.

The court found no genuine issue requiring a trial on liability, as the defendant conceded the facts supporting the criminal conviction.

The court refused to adjourn the motion for a defence medical due to the defendant's delay.

The court awarded the plaintiff $70,000 in general non-pecuniary damages and $5,000 for future therapy costs.

The appellant appealed a jury award of zero damages and a trial judge's ruling that her claim for non-pecuniary loss did not meet the statutory threshold under the Insurance Act following a motor vehicle accident.

The appellant argued the jury verdict was perverse and the trial judge erred in his threshold analysis.

The Court of Appeal dismissed the appeal, finding it was open to the jury to conclude the appellant's post-accident difficulties were inevitable due to pre-existing osteoarthritis, and there was ample evidence supporting the trial judge's threshold ruling.

Following a jury trial for a motor vehicle accident, the plaintiff was awarded $2,000 for future housekeeping expenses, with all other heads of damage reduced to zero by statutory deductibles.

The plaintiff brought a motion for judgment, arguing the housekeeping award should not be reduced by a prior $3,650 accident benefits settlement.

The court found the settlement release covered past, present, and future housekeeping expenses, reducing the jury award to zero.

As the successful parties who had made a better offer to settle, the defendants were awarded partial indemnity costs of $138,416.42.

The plaintiff sought damages for injuries from a motor vehicle accident.

The defendants admitted liability but brought a threshold motion to declare the plaintiff's non-pecuniary loss claim barred under s. 267.5(5) of the Insurance Act, arguing the plaintiff did not sustain a permanent, serious impairment of an important physical, mental, or psychological function.

The court applied the three-part Meyer v. Bright test, finding the plaintiff suffered permanent chronic pain, anxiety, driving phobia, and depression, which constituted a permanent and serious impairment of important functions.

The defendants' motion was dismissed.

The plaintiff's motor vehicle accident action was dismissed after failing to meet the statutory threshold, despite a jury awarding $30,000 in general damages.

Both parties sought costs.

The court found that the defendant's counsel engaged in uncivil conduct, failed to cooperate on a joint document brief, delivered late expert reports, and repeatedly ignored a trial management order and court deadlines.

Although the defendant was the successful party and would normally be entitled to costs of approximately $100,000, the court exercised its discretion to deprive the defendant of costs due to counsel's misconduct.

The defendant was ordered to pay $441.13 for half the copying costs of the joint document brief.

The appellant hosted a golf tournament at the respondents' golf course.

A guest was injured in a golf cart accident and sued the respondents for negligent course design.

The respondents brought a third-party claim against the appellant for contractual indemnity based on a clause in the event contract.

The motion judge granted summary judgment to the respondents.

On appeal, the Court of Appeal reversed, holding that the indemnity clause did not clearly and unambiguously shift the risk of the respondents' own negligence to the appellant.

Following a trial where the Toronto Transit Commission (TTC) was found not liable for a streetcar accident involving a four-year-old child, the TTC sought its costs of the proceeding.

The court declined to award costs to the TTC, noting that the child could not be at fault and that the TTC, as a public service, should bear the costs of defending such claims where the injured party is not at fault.

The court also declined to award costs for the TTC's counterclaim against the child's parents, resulting in no order as to costs for any party.

The appellant appealed a threshold ruling and costs order made by the trial judge in a motor vehicle accident action.

The appellant abandoned the appeal of the threshold ruling but argued the trial judge erred in departing from the usual costs consequences after the plaintiff obtained a judgment less favourable than the appellant's offer to settle.

The Court of Appeal agreed, finding no exceptional circumstances to justify the trial judge's departure from the rule.

The Court set aside the order of no costs post-offer and awarded the appellant $70,000 in costs, to be set off against the $135,000 awarded to the respondent for pre-offer costs.

A four-year-old boy ran across a street mid-block and was struck by a TTC streetcar.

The plaintiffs sued the TTC and the streetcar operator for negligence.

Under s. 193(1) of the Highway Traffic Act, the defendants bore the onus of proving they were not negligent.

After hearing extensive expert evidence on accident reconstruction, perception-reaction times, and streetcar braking mechanics, the court concluded that the child ran into the streetcar's path too late for the operator to avoid the collision.

The defendants successfully rebutted the presumption of negligence, and the action was dismissed.

The appellant appealed a judgment dismissing his application to assess two legal accounts from the respondent, delivered in 1999 and 2008.

The appellant also moved to introduce fresh evidence to seek a new assessment hearing for all accounts.

The Court of Appeal found no error in the application judge's reasons, noting a 2001 consent agreement covering the 1999 account and a lack of special circumstances for the 2008 account.

The motion to introduce fresh evidence was denied, as the appellant only sought assessment after deciding his wife's legal bills were too high.

The appeal was dismissed.