Stewart C.E. Gillis

Following a trial where the defendant was found liable for assaulting the plaintiff, the court determined costs and a request for a declaration under the Bankruptcy and Insolvency Act.

The court awarded substantial indemnity costs to the plaintiffs pursuant to s. 4(6) of the Victims' Bill of Rights, 1995, finding no reason it would not be in the interests of justice.

The court also granted a declaration that the damages and costs awarded to the assaulted plaintiff survive any future bankruptcy discharge, as the assault constituted bodily harm intentionally inflicted.

The plaintiffs brought a motion seeking court approval of a consent judgment dismissing a medical negligence action without costs on behalf of a party under disability.

The action alleged negligent failure by a physician to diagnose a hip dislocation in a patient with severe cerebral palsy.

Although expert reports commissioned by the plaintiffs suggested a breach of the standard of care, the litigation guardian sought dismissal due to concern about potential adverse costs if the action failed at trial.

The court held that the proposed dismissal was not in the best interests of the person under disability and that the litigation guardian’s personal exposure to costs created a conflict of interest.

The court removed the litigation guardian and substituted the Public Guardian and Trustee, adjourning the motion pending further investigation.

During a continued pretrial in a civil action involving multiple defendants in an equipment-related dispute, the parties were unable to reach resolution.

The court addressed scheduling concerns for an anticipated lengthy jury trial estimated to take six to eight weeks.

The matter was removed from the May 2016 blitz sittings, and the case management judge indicated that a trial date would be fixed, potentially in another judicial region to accommodate the extended duration.

Directions were also provided regarding pretrial motions, preparation of joint document books, and submission of proposed jury questions in advance of the pretrial motions.

In a personal injury action arising from an assault, the defendant moved to exclude two plaintiff medical reports proposed to be tendered under s. 52 of the Evidence Act at a contested damages trial.

The court held that both proposed experts were litigation experts within the meaning of Westerhof and that their reports complied with Rule 53.03(2.1) and Rule 4.1.01(1).

However, the court refused leave under s. 52(2) of the Evidence Act to file those reports in lieu of viva voce testimony, holding that litigation experts must attend trial so the judge can perform the gatekeeper function on qualification and scope of opinion evidence.

The motion was therefore granted, with costs in the cause.

The plaintiffs commenced a medical malpractice action following the death of Emilio Spirito, naming several hospitals, doctors, and 'Doctors AB, CD, EF, GH'.

After the two-year limitation period under the Trustee Act expired, the plaintiffs sought to amend the claim to substitute the appellants for Doctors AB and CD.

The motion judge allowed the amendment, finding it was a case of misnomer.

The Court of Appeal dismissed the appellants' appeal, holding that correcting a misnomer does not constitute adding a party, and therefore s. 21 of the Limitations Act, 2002 does not bar the amendment.

Liberty Mutual appealed an arbitration order requiring it to pay a special award under s. 282(10) of the Insurance Act for unreasonably withholding or delaying the payment of statutory accident benefits.

The Arbitrator had ordered a special award expressed as a percentage of the benefits owing.

On appeal, the Director of Arbitrations held that the percentage approach was inappropriate and that special awards must be expressed as a specific lump sum amount.

The Director also found the order was too vague to be enforceable.

Liberty Mutual's argument that the use of full-time government employees as arbitrators raised a reasonable apprehension of institutional bias was dismissed.

The appeal was allowed in part, the special award paragraph was rescinded, and the Director remained seized to determine the appropriate lump sum amount.

The plaintiffs, Ontario residents, were involved in a motor vehicle accident in New York with the defendants, who were New York residents.

The plaintiffs commenced an action in Ontario against the New York defendants and their own insurer.

The New York defendants successfully moved to stay the action for lack of jurisdiction.

On appeal, the Court of Appeal applied the real and substantial connection test and the eight factors from Muscutt v. Courcelles.

The court concluded that assuming jurisdiction over the out-of-province defendants for a foreign accident would violate principles of order and fairness, and dismissed the appeal.

An individual applied for intervenor status in an appeal concerning statutory accident benefits and allegations of institutional bias.

The Director of Arbitrations denied the application, finding that the applicant did not represent the interests of any recognized group and his participation would likely complicate the proceedings by raising substantially different issues and arguments.

The existing parties and intervenors were deemed sufficient to address the issues.

The insurer appealed an arbitration order that included a special award for unreasonably withholding benefits.

On appeal, the insurer brought a motion to admit new and extrinsic evidence.

The insurer sought to introduce evidence of institutional bias within the dispute resolution system, arguing that the use of full-time arbitrators created a reasonable apprehension of bias.

The Director of Arbitrations allowed this evidence to be admitted as extrinsic evidence, finding that the insurer had not waived its right to raise the issue.

However, the Director refused to admit new evidence regarding the insurer's belief about the insured's knowledge of available benefits, as this evidence could have been adduced at the original hearing.