Rachel Andrews

The plaintiff brought a motion for leave to admit a late-served expert report on broker negligence in an action arising from a motorcycle accident.

The expert report was served five months after the deadline under the Rules of Civil Procedure and one month after a without-prejudice deadline set by the pre-trial judge.

The court applied the two-part test under Rule 53.08(1), finding that while the explanations of difficulty finding an expert and staff turnover were problematic, the unique circumstance that the report was served nearly two years before the reconvened pre-trial tipped the balance in the plaintiff's favour.

Leave was granted.

The court also directed the order of trial, ordering the tort action against the municipality to proceed first, followed by the broker negligence action.

The London & Middlesex Housing Corporation (LMHC) brought a summary judgment motion to dismiss a claim against it by a tenant, Keith Horn.

Horn alleged LMHC was liable for an assault and battery committed by another tenant, Brian Latondress, who was also employed by LMHC as a Resident Contact.

Horn claimed direct negligence in hiring Latondress and/or vicarious liability.

LMHC argued that Latondress's actions were either self-defence or an independent intentional act outside the scope of his employment.

The court dismissed LMHC's motion, finding that there was a genuine issue for trial regarding the nexus between Latondress's conduct and his employment, particularly concerning vicarious liability under the Salmond test and the "enterprise risk" principle.

The plaintiffs brought a motion for the pre-trial determination of a question of law regarding whether the defendant tort insurer was entitled to deduct long-term disability settlement funds received by the plaintiff from a separate action against her disability carrier.

The court applied the 'silo' approach and found that the settlement was for an income replacement claim.

The court held that the defendant is entitled to deduct the settlement amount from the tort damages for income loss pursuant to s. 267.8(1) of the Insurance Act.

The plaintiff tripped and fell on a 50 mm milled asphalt edge while crossing a road under construction at night, sustaining a broken arm.

She sued the municipality under the Municipal Act and the paving contractor under the Occupiers' Liability Act.

The court found that the defendants breached their respective duties by failing to install a temporary ramp at the pedestrian crossing, which constituted an unreasonable hazard.

However, the plaintiff was found 35% contributorily negligent for failing to keep a proper lookout in a known construction zone.

The defendants were held jointly and severally liable for 65% of the agreed damages.