Linda M. O’Brien

In this post-verdict decision following a 20-day jury trial in a historical sexual assault case, the court addressed four issues: (1) whether to amend the statement of claim to reflect the jury's verdict exceeding the pleaded amounts; (2) whether to set aside or reduce the $1,000,000 punitive damages award against the estate; (3) whether the defendant organization should be held severally rather than jointly liable; and (4) the appropriate pre-judgment interest rates.

The plaintiff was awarded $400,000 in general and aggravated damages, $940,000 for past income loss, and $50,000 for future counselling, with the jury apportioning liability 75% to the estate and 25% to the organization.

The court upheld the jury verdict in all respects, granting the amendment to the pleading, refusing to interfere with the punitive damages award, maintaining joint and several liability, and awarding pre-judgment interest at 5% on non-pecuniary damages from June 1992 and 2% on pecuniary damages from June 1992, calculated bi-annually.

The appellant, a statutory third party, appealed a motions judge's order refusing leave to serve and file a jury notice on behalf of the defendants, despite the plaintiff's consent.

The motions judge had cited pandemic-related court backlogs as the reason for refusal.

The Divisional Court allowed the appeal, finding the motions judge erred in law by failing to articulate the applicable test, failing to consider the overall context including companion actions with existing jury notices, and failing to consider whether the jury notice would actually cause delay.

Leave was granted to file the jury notice.

The defendant brought an unopposed motion in writing seeking an order for the simultaneous or sequential trial of the main action, a third-party claim, and a related action arising from the same motor vehicle accident.

The court declined to sign the draft order due to several deficiencies in the motion materials, including the failure to provide all relevant pleadings, the lack of information regarding the mode of trial (jury or non-jury), and the failure to file proper notices of non-opposition from the responding parties.

The court provided directions for the defendant to file supplementary materials to correct these deficiencies.

The statutory third party brought a motion for leave to appeal the order of J. Ramsay J. dated December 23, 2021.

The Divisional Court granted the motion for leave to appeal and directed the appellant to schedule a case conference.

No costs were ordered.

This endorsement addresses the costs of a summary judgment motion where the plaintiffs, Regan Maureen Brennan and Cornelius A. Brennan, successfully defended against a motion brought by Jake Rowntree.

The plaintiffs sought substantial indemnity costs.

The court found that while success is a presumptive factor for costs, the plaintiffs failed to justify a substantial indemnity award, making partial indemnity the appropriate scale.

Crucially, the court determined that Cornelius Brennan, a co-plaintiff and lawyer who acted for his daughter, Regan Brennan, could not claim costs for his services as he did not demonstrate an "opportunity cost" by foregoing remunerative activity, a requirement for self-represented litigants (including lawyers acting for themselves or closely aligned parties).

Consequently, the court declined to award costs for legal services, granting only disbursements.

Jake Rowntree brought two motions for summary judgment to dismiss negligence and occupiers liability claims against him arising from a motor vehicle accident.

The claims stemmed from an incident where Regan Brennan, who had alcohol addiction issues, consumed Rowntree's alcohol without permission at his residence and was subsequently asked to leave, later being involved in an accident while intoxicated.

The court dismissed the summary judgment motions, finding a genuine issue requiring a trial due to the absence of crucial evidence from a key witness, Jeff Mailoux, which prevented a fair and just determination of foreseeability and proximity for a duty of care.

Following an earlier refusal to schedule the plaintiff’s motion for summary judgment, the court directed the parties to develop a trial preparation plan.

The parties submitted a proposed plan addressing production, examinations for discovery, undertakings, interlocutory motions, witness evidence, mediation, and trial management.

The court issued detailed case management directions establishing timelines for documentary production, discoveries, undertakings, and mediation, and provided guidance on the conduct of witness evidence and trial scheduling.

The decision also required the parties to schedule discovery-related motions and a further case conference to determine time limits for the anticipated two-week trial.