Michael Gauthier

The court considered a motion by the defendant, Echelon Insurance, to compel the plaintiff, 2414840 Ontario Inc. (operating as Cottage Country Family Diner), to answer undertakings and refusals from discovery, including production of the Fitchetts’ personal financial records and the corporation’s entire accountant’s file.

The court held that while the financial health of the corporation and its beneficial owners was relevant to motive in a civil arson claim, the request for the entire accountant’s file was overly broad and amounted to a fishing expedition.

The court also found that the personal financial records of the Fitchetts, as non-parties, could not be compelled through discovery of the corporate plaintiff.

The motion was dismissed.

The defendants, George and Huguette Blechta, brought a motion for summary judgment to dismiss an action for damages brought by James and Margherite Derro.

The action stemmed from James Derro's fall on the Blechtas' icy driveway, with Margherite Derro claiming under the Family Law Act.

The court applied the two-stage summary judgment test, finding no genuine issue requiring a trial.

It concluded that the Blechtas had acted reasonably in their driveway maintenance and that James Derro had willingly assumed the risks by exiting his truck on the un-sanded driveway.

The motion was granted, and the action was dismissed.

The accused was charged with assault, sexual assault, and breach of probation.

The court acquitted the accused of assault, finding her actions were reflexive and lacked the necessary mens rea.

However, the court found the accused guilty of sexual assault and breach of probation, concluding that the Crown proved the actus reus and mens rea for sexual assault beyond a reasonable doubt, rejecting the defense of honest but mistaken belief in consent due to the use of force and lack of reasonable steps to ascertain consent.

The respondent sustained serious burns to her lower body when coffee spilled from a cup she ordered at a McDonald's drive-through.

The motion judge determined that the respondent was impaired as a result of an accident as defined in the Statutory Accident Benefits Schedule and was entitled to statutory accident benefits.

The appellant insurance company appealed.

The Court of Appeal upheld the motion judge's decision, finding that the use and operation of the vehicle was a direct cause of the injuries and that the seatbelt restraint increased exposure to the scalding liquid.

The appeal was dismissed with costs awarded to the respondent.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiff's claim for statutory accident benefits.

The plaintiff suffered severe burns when she spilled hot coffee on her lap while receiving it at a drive-through window in her vehicle.

The court applied the purpose and causation tests, finding that using a drive-through is an ordinary use of a vehicle, and that the vehicle's use was a direct cause of the injuries because the plaintiff was seated and restrained by a seatbelt, preventing evasive action.

The defendant's motion was dismissed, and the court concluded the incident met the definition of an accident under the Statutory Accident Benefits Schedule.

Following an earlier ruling denying the defendants’ request to amend a litigation timetable and seek a summary judgment date, the court addressed the issue of costs for the related proceeding.

The plaintiff sought over $10,000 in partial indemnity costs, asserting that the defendants’ failure to properly file motion materials and respond to correspondence caused unnecessary steps and expense.

The defendants argued that costs should be reserved pending a forthcoming motion for leave to bring summary judgment and, if awarded, should be minimal.

The court found that the defendants’ failure to properly advance their motion and respond to requests caused unnecessary work for the plaintiff.

However, broader costs relating to the proposed summary judgment proceedings were deferred, and the plaintiff was awarded a reduced amount for specific unnecessary steps.

The defendants sought to adjourn their summary judgment motion and amend the litigation timetable to allow for the examination of their expert witness.

The plaintiff opposed the request, citing the defendants' failure to diligently pursue the motion and comply with the timetable.

The court found that the defendants caused the delay and failed to properly file their motion materials in accordance with Rule 37.08(1).

The court held there was nothing to adjourn and ordered that the defendants must obtain leave to bring any future summary judgment motion or motion to amend the timetable.

The defendant insurer moved to set aside a noting in default and default judgment obtained by the plaintiff in a claim for accidental death insurance benefits.

The court applied the test for setting aside default judgments, requiring prompt action, a reasonable explanation for the default, and an arguable defence on the merits.

The court found the motion was brought promptly and that the insurer had a plausible explanation for failing to defend, given lengthy periods of inactivity and communications suggesting litigation would not proceed imminently.

The insurer also demonstrated an arguable defence, including the possibility that the insured’s death was suicide or otherwise excluded under the policy.

Additionally, the court held that the action had been deemed dismissed as abandoned under Rule 48.15(6), rendering the default judgment irregular.