P. Michael Rotondo

The appellants challenged an order refusing leave to amend their amended statement of defence in an insurance indemnity proceeding under s. 132(1) of the Insurance Act.

They sought to characterize alleged lies by the insureds about the mechanism of injury as civil fraud.

The court held that, regardless of whether civil fraud was legally available in such a proceeding, the existing pleading already allowed the appellants to advance the factual allegations necessary to defend the indemnity claim and oppose relief from forfeiture.

The proposed amendment was therefore irrelevant in the circumstances, and the motion judge made no reversible error in finding non-compensable prejudice on the eve of trial.

The appeal was dismissed with agreed costs to the respondent.

The plaintiff brought a motion for leave to appeal an order of the lower court.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $1,000 to the Homewood defendants and $1,000 to the defendant doctor.

The plaintiff appealed an Associate Judge's order requiring her to attend defence medical examinations.

She brought a motion to stay the order pending appeal and for leave to admit fresh evidence of her psychiatric distress following the release of the order.

The court granted the unopposed stay with costs.

However, the court dismissed the motion to admit fresh evidence, applying the Palmer test.

The court found that the fresh evidence was not relevant to a decisive issue and would not have affected the result, as the plaintiff's genuine fears and vulnerabilities regarding the examinations during the COVID-19 pandemic were already before the Associate Judge.

The plaintiff brought a motion to strike the defendant's Statement of Defense due to the defendant's failure to pay an $11,000 costs award previously ordered by a Master.

The defendant sought to amend the Master's order to make the costs payable in any event of the cause, citing impecuniosity.

The court declined to amend the Master's unappealed order, noting insufficient evidence of the defendant's inability to obtain financing.

The court ordered the defendant to pay the costs by November 1, 2021, failing which her Statement of Defense would be struck.

The plaintiff brought a motion to strike the defendants' jury notice in a personal injury action.

Due to the COVID-19 pandemic, civil jury trials in the Central East Region were suspended until well into 2022.

The court granted the motion, finding that the prejudice to the plaintiff caused by further delay outweighed the defendants' right to a jury trial, especially given the age of the case and previous adjournments.

The defendants brought a motion to compel the plaintiff to attend in-person physiatry and neuropsychology defence medical examinations.

The plaintiff objected to the in-person physiatry examination due to COVID-19 concerns and her compromised health, and objected to the neuropsychology examination arguing she had not put her cognitive state in issue.

The court ordered the plaintiff to attend both examinations in person, finding that adequate COVID-19 safety protocols were in place at the assessment facility and that the plaintiff's pleadings and medical reports had put her neurocognitive condition in issue.

The defendants brought a motion to remove the plaintiff's counsel of record, arguing that counsel's ongoing business relationship with the plaintiff would inevitably make him a witness regarding the plaintiff's loss of income claim.

The court applied the factors from Essa (Township) v. Guergis and found the motion premature, as the plaintiff's income loss claim was currently based solely on tax returns.

The motion was dismissed with leave to renew if the plaintiff pursues an income loss claim inconsistent with his tax returns.

The defendant insurers moved for an order compelling the plaintiffs to appoint an appraiser under s. 128(5) of the Insurance Act, following a property loss claim.

The plaintiffs resisted, arguing abuse of process, delay, and that the case involved interpretive issues rather than just valuation.

The court granted the defendants' motion, affirming that appraisal is the preferred process for quantifying damages in property insurance cases, even when litigation is ongoing and coverage is disputed, and that it is not an abuse of process in this instance.

The insurer brought a motion to stay the arbitration proceeding pending the applicant's attendance at an orthopedic insurer examination.

The applicant had recently served new medical documentation, including a report diagnosing her with accident-related chronic pain and a possible rotator cuff tear.

The insurer argued it needed an orthopedic examination to respond to this new information.

The arbitrator found the examination was reasonably necessary due to the new diagnoses and granted the stay, noting that the insurer's third notice of examination complied with the requirements of section 44(5) of the Statutory Accident Benefits Schedule.

The applicant sought accident benefits following a motor vehicle accident.

The insurer denied the claims and mediation failed.

The applicant submitted an application for arbitration, which the insurer argued was time-barred under section 281.1(2)(b) of the Insurance Act.

The applicant claimed she had mailed the application within the limitation period, but it was misplaced by the Financial Services Commission of Ontario.

The arbitrator found no credible evidence that the application was submitted on time and dismissed the application as time-barred.

The appellant sought leave to appeal a costs order of $10,000 following the settlement of a slip and fall action for $15,000.

The appellant had originally claimed over $750,000 and incurred disbursements exceeding the settlement amount.

The Divisional Court denied leave to appeal, finding that the motion judge did not err in principle and that the costs award was proportionate and reasonable given the circumstances.

The defendants appealed an order granting the plaintiff leave to amend her statement of claim in an occupier's liability action.

The defendants argued the amendment introduced a new cause of action outside the limitation period, making the order final.

The Court of Appeal disagreed, finding the amendment merely alleged an alternative factual scenario for the fall and did not add a new cause of action.

As the order was interlocutory, the appeal was quashed for want of jurisdiction, with costs awarded to the plaintiff.

On a supplementary motion to approve a minor's settlement, the court finalized approval of a personal injury settlement after requiring additional information about the proposed payout structure, the litigation guardian, and counsel fees.

The court rejected an earlier proposal to pay $125,000 to the minor at age 18 and instead required a $110,000 structured settlement providing staged annual payments beginning at age 18 with the balance payable at age 25.

The court accepted the litigation guardian as appropriate, approved reduced disbursements of $14,000, approved counsel fees of $58,268.83 plus HST as reasonable despite the absence of dockets, and directed that the remaining $18,391.61 be paid into court for the minor's benefit.

On a Rule 7.08 motion, the court approved a global settlement of a minor's personal injury action arising from a restaurant accident causing serious hand and wrist injuries.

The court approved payment of certain third-party expenses and the mother's separate legal account, but refused on the existing record to approve the plaintiff counsel's claimed fees and disbursements because the material was deficient and lacked the information necessary to assess reasonableness.

Emphasizing the court's protective role for minors, the judge rejected the litigation guardian's preference for a lump-sum payment at age 18 and held that the bulk of the minor's recovery should be placed in a structured settlement, with the balance paid into court for future expenses such as tutoring.

Further submissions on counsel fees were invited by a fixed deadline.

The appellant appealed a motion judge's decision regarding a limitation period.

The Court of Appeal allowed the appeal, finding that the motion judge erred in law by failing to address the specific requirements of section 5 of the Limitations Act, 2002, particularly section 5(1)(a)(iv).

The judgment below was set aside and costs were awarded to the appellant.

Following a successful motion for summary judgment dismissing the action as statute-barred, the defendants sought costs on a partial indemnity scale for both the motion and the action.

The plaintiff did not object to the costs for the motion but argued that Rule 20.06 of the Rules of Civil Procedure precluded awarding costs for the action as a whole.

The court rejected that interpretation, holding that the rule does not foreclose costs where a summary judgment motion results in dismissal of the action.

Objections to discovery-related fees and preparation for trial charges were also dismissed.

The court found the defendants’ bill of costs reasonable and awarded the full amount requested.

The defendants brought a motion for summary judgment seeking dismissal of a slip-and-fall claim as statute-barred under the Limitations Act, 2002.

The plaintiff argued that the injury initially appeared de minimus and was not discovered until later when an x-ray revealed a fracture.

The court held that the plaintiff experienced pain and swelling immediately after the incident and sought medical treatment within days, which was sufficient to trigger discoverability.

Applying the principles governing summary judgment and the "full appreciation test", the court found the issue suitable for determination on the motion record.

The alleged injury was not trivial and the limitation period began when the accident occurred.

The applicant sought a special award after the arbitrator previously found the insurer unreasonably withheld income replacement benefits.

The insurer's unreasonable conduct included negligently misfiling a psychological report and relying on a medical opinion that failed to address central issues.

Applying the Persofsky framework, the arbitrator balanced the blameworthiness of the insurer's conduct against the need for deterrence and proportionality.

Finding the insurer's actions fell short of the intentional and egregious conduct seen in cases warranting maximum penalties, the arbitrator ordered a special award of $20,000.

The applicant sought her expenses of the arbitration following a successful claim for statutory accident benefits.

The insurer did not dispute entitlement but challenged the disbursements claimed for the attendance of two expert witnesses.

The arbitrator found the legal fees reasonable and reduced the expert witness attendance fees to comply with the maximum hourly rate prescribed by the Expense Regulation under the Insurance Act.

The applicant was awarded total expenses of $11,526.32.

The applicant was struck by a vehicle while walking across an intersection and sustained physical and psychological injuries.

The insurer terminated her income replacement benefits based on an orthopaedic assessment.

The applicant sought arbitration, arguing she suffered from chronic pain with a significant psychological component that prevented her from working.

The arbitrator found that the applicant was completely unable to engage in any employment for which she was reasonably suited, preferring the evidence of her psychological experts over the insurer's assessors.

The arbitrator also granted a special award, finding that the insurer unreasonably withheld benefits by misfiling and ignoring a key psychological report that supported her claim.