Loretta P. Merritt

The Ontario Trial Lawyers Association (OTLA) brought a motion for leave to intervene as a friend of the court in an appeal.

The underlying appeal concerned the dismissal of an action for delay, specifically involving claims of historical sexual and physical abuse.

OTLA proposed to argue that the Rules of Civil Procedure create an "absurdity" by allowing certain plaintiffs whose actions are dismissed for delay to re-commence their actions, but not those dismissed at a status hearing, particularly for claims not subject to limitation periods.

The motion was dismissed for several reasons, including that the proposed intervention introduced new issues and arguments not raised by the appellants, lacked factual evidence, would significantly expand the scope of the appeal, and was a tardy motion that would likely require an adjournment.

Costs were awarded against OTLA.

This is an appeal from a common issues trial judgment in a class proceeding.

The class, comprising former boarding students of Grenville Christian College, alleged systemic negligence and breach of fiduciary duties due to abusive practices including corporal punishment and public humiliation.

The trial judge found class-wide breaches and awarded punitive damages.

The appellants sought to set aside the judgment, arguing errors in the trial judge's use of expert evidence and treatment of defence evidence.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings of systemic negligence and breach of fiduciary duty, and that punitive damages were warranted, concluding that the trial judge's assessment of evidence and application of legal principles were sound.

The applicant, as litigation guardian for two minor children, sought disclosure of records held by the Crown and Ontario Provincial Police relating to the investigation and prosecution of a young person under the Youth Criminal Justice Act.

The applicant sought these records to support a civil negligence action against the Children's Aid Society.

The court granted partial access to records relating to charges to which the young person pleaded guilty and charges that were withdrawn, while denying access to records relating to allegations where no charges were laid.

The court applied the statutory tests under sections 119 and 123 of the YCJA, balancing the applicant's need for disclosure against the privacy protections afforded to young persons.

This is an appeal from a judgment rescinding a settlement agreement.

The respondent, Irene Deschenes, had settled a sexual assault claim against the Roman Catholic Episcopal Corporation of the Diocese of London in Ontario (the "Diocese") in 2000.

Subsequently, it was discovered that the Diocese had misrepresented its knowledge of the priest's prior abuse, as police statements from 1962 indicating earlier assaults came to light.

The motion judge rescinded the settlement based on innocent misrepresentation.

The appellants (Diocese and others) appealed, arguing the motion judge erred in applying the law of unilateral mistake, assessing materiality, and failing to uphold the finality of settlements.

The Court of Appeal dismissed the appeal, affirming that the settlement was properly rescinded for innocent misrepresentation, finding the misrepresentation material and relied upon, and that the interests of fairness and justice outweighed the principle of settlement finality in these circumstances.

This appeal concerns the admissibility of participant expert evidence in a civil jury trial involving allegations of sexual assault.

The respondent sued for damages for sexual assaults allegedly committed in the mid-1990s.

A mental health clinician who treated the respondent in prison was permitted to give evidence as a participant expert.

The trial judge admitted the clinician's unredacted reports and allowed him to testify about their contents.

The Court of Appeal found that the clinician exceeded the proper scope of a participant expert by providing opinions on whether the alleged sexual assaults occurred and whether the respondent suffered harm caused by such assaults.

The court held that these opinions failed to meet the threshold requirements for admissibility under the Mohan/White Burgess test and that their prejudicial effect outweighed their probative value.

A new trial was ordered.

The appellant municipality appealed a trial judgment awarding the respondent approximately $995,000 in damages plus $921,508 in costs for injuries sustained while riding a bicycle on a recreational path.

The respondent's bicycle struck an exposed metal bracket from a removed bollard, causing her to fall and sustain a brain injury.

The trial judge found the municipality solely liable under the Occupiers' Liability Act and awarded damages for lost income.

The Court of Appeal dismissed the appeal, rejecting arguments regarding misinterpretation of the Act, failure to apply the but-for test, lack of jurisdiction regarding lost income damages, and failure to find contributory negligence.

The court also denied leave to appeal the costs award.

The plaintiff, Wanda Labanowicz, sought costs and interest following a successful three-week trial against the Corporation of the Town of Fort Erie, where she was awarded $894,839.72 in damages for a bicycle accident.

The court considered the plaintiff's pre-trial offers, which she surpassed, the defendant's "scorched earth" defence, the case's complexity, and the parties' reasonable expectations.

The court found the defendant's offers to be 'nuisance' value and criticized its unreasonable and unsupported defences.

While largely granting costs to the plaintiff on a partial indemnity basis to the date of her May 2016 offer and substantial indemnity thereafter, the court reduced the plaintiff's proposed Bill of Costs by $35,000 for pre-May Offer costs and made further reductions for post-May Offer costs and costs submissions due to duplication from multiple law firms and excessive clerk/student time.

Disbursements and OHIP claims were largely upheld, and full interest was awarded to the plaintiff.

The plaintiff sustained a brain injury after her bicycle struck an empty bollard housing on a municipal recreational trail.

She sued the municipality under the Occupiers' Liability Act.

The court found the municipality 100% liable, holding that leaving an unpainted, unlocked, and easily removable bollard housing exposed on the trail amounted to reckless disregard for the safety of cyclists.

The court rejected arguments of contributory negligence and found the accident caused the plaintiff's post-concussion syndrome, rendering her competitively unemployable in her previous field.

Damages for past and future income loss were awarded in the amount of $737,339.72.

The moving defendants sought to set aside notings in default entered after they failed to deliver statements of defence in a civil action alleging historical sexual abuse and related claims, including fraudulent conveyance allegations against one defendant.

The court considered the discretionary factors governing relief under Rule 19 of the Rules of Civil Procedure, including intention to defend, explanation for delay, promptness in bringing the motion, and prejudice.

The evidence demonstrated that both defendants intended to defend the action, and the delay arose from counsel-related issues and ongoing communications between the parties.

The court emphasized the policy preference for resolving disputes on their merits and noted the absence of meaningful prejudice to the plaintiff.

The notings in default were set aside and the defendants were granted time to deliver their statements of defence.

The defendants appealed a Master's order dismissing their motion to sever the claims of two plaintiffs who alleged sexual misconduct against their deceased family physician.

The Master had dismissed the motion primarily because it was brought at a late stage in the litigation, after discoveries were completed and the action was set down for trial.

The Superior Court of Justice dismissed the appeal, finding that the Master made no error of law and reasonably exercised her discretion in concluding that the conduct of the trial, including rulings on the admissibility of similar fact evidence, should be left to the trial judge.