Louis P. Covens

The applicant, a litigation lender, sought a determination that its loan agreement with the respondent secured not only the proceeds of the respondent's tort action, but also the $1.25 million settlement of his statutory accident benefits (SABS) claim.

The tort action had been dismissed without any payout.

Applying principles of contractual interpretation and the doctrine of contra proferentem, the court found that the term 'Settlement Funds' in the loan agreement was restricted to monies paid to resolve the tort action.

The court noted that the lender had drafted the agreement specifically referencing the tort action but omitting any reference to the SABS claim, despite having reviewed the SABS file prior to drafting.

The application was dismissed, and the court held that the lender had no security interest in the SABS settlement funds.

The plaintiff sued her former lawyer for negligence and breach of contract arising from an allegedly improvident settlement of her accident benefits claim in May 2014.

The plaintiff claimed the lawyer failed to advise her adequately regarding income replacement benefits, failed to discourage her from settling prematurely, and failed to advise her of the potential for catastrophic impairment designation which would have entitled her to significantly enhanced benefits.

The court found that while the lawyer breached the standard of care in several respects, the plaintiff failed to establish causation because she did not prove she would have acted differently with proper advice.

Additionally, the plaintiff failed to mitigate her damages by not attempting to set aside the settlement when she became aware of the defect.

The court also found the plaintiff failed to establish that she would have been found catastrophically impaired.

The action was dismissed.

During a case management conference, the applicant, BridgePoint Financial Services Limited Partnership I, argued that its application to determine whether its loan agreements with the respondent, Rudolf Steinberg, applied to his accident benefits settlement was moot.

BridgePoint contended that outstanding legal fees, which had priority, exceeded the funds held in court, leaving nothing for BridgePoint.

The court found that because a portion of the legal fees had already been paid, up to $184,983.13 might remain available, meaning the application was not moot.

Consequently, the court ordered that the application proceed to a hearing and directed that a related Toronto action be transferred to Thunder Bay to be case managed together.

The plaintiff brought a motion seeking leave to correct the name of the defendant "John Doe" to Nisim Saban and Joseph Algai under the misnomer doctrine, or alternatively, to amend the Statement of Claim to add Nisim Saban, Joseph Algai, Mariana Slomyanski, and Slomyanski Law as defendants after the presumptive limitation period on the basis of discoverability.

The court denied the misnomer argument, finding the original pleading lacked sufficient particularity to identify the proposed defendants.

However, the court granted leave to add all proposed defendants under the discoverability rule, concluding that the plaintiff had provided a reasonable explanation for the delay in discovery and that the proposed defendants failed to demonstrate non-compensable prejudice.

The plaintiffs brought a motion for leave to amend their statement of claim to add CML Healthcare Inc. as a defendant on the basis of misnomer in a medical malpractice action involving a delayed diagnosis of a brain tumour.

The plaintiffs originally named Oxford Medical Imaging as the owner of the imaging facility, but later discovered CML owned it at the relevant time.

The court found that the 'litigation finger' was clearly pointing at CML and that there was no non-compensable prejudice.

The motion was granted, and the plaintiffs were awarded costs of $3,000.

The plaintiffs brought a motion to set aside a Registrar's administrative dismissal order that dismissed their product liability action for delay under Rule 48.14.

The action arose from an incident where the plaintiff was allegedly struck by a defective liftgate on a minivan.

The court applied the Reid factors using a contextual approach to determine if the dismissal should be set aside.

The court found that the plaintiffs failed to provide a satisfactory explanation for over two years of cumulative delay and that the dismissal was not due to mere inadvertence.

Furthermore, the court held that the defendants would suffer non-compensable prejudice due to the degradation of physical evidence (the prop rods) and fading witness memories.

The motion to set aside the dismissal order was dismissed.

The plaintiff brought a motion to extend the time to file a statement of claim for personal injuries arising from a motor vehicle accident.

Although the notice of action was issued within the two-year limitation period, the statement of claim was not filed within the required 30-day period due to the plaintiff's lawyer's inadvertence and staffing issues during the COVID-19 pandemic.

The court applied the Nugent factors and found that the delay was caused by inadvertence and that the defendant suffered no prejudice, as her insurer had been promptly notified of the claim.

The motion was granted, and the plaintiff was awarded partial indemnity costs.

The plaintiff sought leave to amend her statement of claim to add two proposed defendants, Maple-Crete Inc. and RoyalCrest Paving and Contracting Ltd., in place of a "John Doe Maintenance Company" defendant, relying on the doctrine of misnomer or, alternatively, discoverability under Rule 5.04.

The court found that the pleading lacked sufficient particularity to satisfy the misnomer doctrine, as an objective reading would not clearly point to the proposed defendants.

Furthermore, the plaintiff failed to demonstrate reasonable diligence in discovering the proposed defendants' identities within the limitation period, as simple inquiries could have revealed them much earlier.

Consequently, the motion to add the proposed defendants was dismissed, as the claim against them was statute-barred.

The appellant, Zaka Ullah Khan, appealed the dismissal of his action by way of summary judgment under Rule 20.

His claim was premised on the assertion that his tort action had settled for a higher amount than he received, with the remainder allegedly misappropriated by the respondents.

The Court of Appeal affirmed the motion judge's finding that while some factual disputes existed (e.g., signing of release, meeting details), they were not material to the core issue.

The motion judge found no evidence to support the claim of a higher settlement or misappropriation.

Consequently, the Court of Appeal dismissed the appeal, denied leave to appeal the costs award, and denied leave to cross-appeal the costs order.

The defendants in a solicitor's negligence action brought a motion to remove the plaintiff's counsel of record, arguing he would be a key witness at trial regarding the dismissal of the plaintiff's underlying personal injury actions.

The court applied the Essa factors and found that the counsel's evidence was likely unnecessary or available from the plaintiff herself.

The court concluded that removing counsel would have a devastating impact on the plaintiff's ability to proceed and that the proper administration of justice did not compel his removal.

The motion was dismissed.

The defendants, Krylov & Company and Devry Smith Frank LLP, successfully obtained summary judgment against the plaintiff, Zaka Ullah Khan, who had alleged fraud and conspiracy.

This endorsement addresses the costs of that motion and the action.

The court declined to award costs to Krylov & Company, finding their failure to provide the plaintiff with requested documents was instrumental in precipitating the unnecessary action, and instead ordered them to pay the plaintiff's disbursements.

Devry Smith Frank LLP, having no responsibility for the action's commencement, was awarded partial indemnity costs from the plaintiff.

The plaintiff, Zaka Ullah Khan, initiated an action against two law firms, Krylov & Company and Devry Smith Frank LLP, alleging fraud and conspiracy regarding the settlement of his personal injury tort action.

The plaintiff claimed the actual settlement amount was higher than what he received and that the defendants misappropriated funds.

The defendants moved for summary judgment, arguing an absence of evidence to support the plaintiff's claims.

The court granted summary judgment in favor of the defendants, finding no genuine issue for trial as the plaintiff's allegations were based on unsubstantiated beliefs and lacked evidentiary foundation.

The appellant appealed a summary judgment dismissal of her negligence action against a lawyer and his law firm.

The appellant alleged the respondent lawyer negligently counselled her to accept an improvident settlement of a motor vehicle accident tort claim and failed to report two other settlements to the Ontario Disability Support Program.

The motion judge found the settlement was not improvident but rather favourable to the appellant and in her best interests, and found no negligence in the failure to report the settlements to ODSP.

The Court of Appeal found no error in the motion judge's conclusions and dismissed the appeal.

The appellant, Linda-Sue Pearce, appealed from a motion judge's refusal to allow her to withdraw an admission made during a summary judgment motion regarding ownership of a Ford truck.

The truck was driven by her son, Trevor Middleton, when it was involved in a collision with a Honda Civic.

Middleton was convicted of criminal negligence causing bodily harm and aggravated assault.

The respondent Liu sued his own insurer, The Personal Insurance Company, for relief against uninsured or underinsured motorists.

During the motion, all parties agreed that if Pearce was found to be the owner, Wawanesa would respond and the action against Personal could be dismissed.

After the motion judge found Pearce was the owner and dismissed the action against Personal, Pearce sought to withdraw her admission, arguing that section 192(2) of the Highway Traffic Act made her liable only for negligence, not intentional torts.

The Court of Appeal dismissed the appeal, finding that the interests of justice did not favour allowing withdrawal of the admission.

The defendants sought substantial indemnity costs of $85,560.34 following the dismissal of the self-represented plaintiff's $4 million professional negligence claim.

The plaintiff did not file responding costs submissions but was known to be impecunious, receiving Ontario Disability Support Program payments.

The court declined to award substantial indemnity costs despite the plaintiff's complaints to the Law Society against the defendants' counsel.

Taking into account the plaintiff's financial circumstances as a factor going to the amount of costs, the court fixed costs at $10,000 inclusive.

The plaintiff sued the defendants for lawyer's negligence arising from a motor vehicle accident settlement.

The defendants moved for summary judgment, arguing that the settlement was reasonable and the lawyer acted competently.

The court found no genuine issue requiring a trial, concluding that the plaintiff failed to prove the lawyer breached the standard of care or caused any alleged harm.

The action was dismissed.

The plaintiff sued her former lawyer for negligence after her personal injury action was dismissed for delay.

The defendant lawyer moved for summary judgment.

The court found that the causal connection between the defendant's alleged negligence and the plaintiff's loss was broken when the plaintiff subsequently retained new counsel who had the opportunity to move to set aside the dismissal but did not do so.

The motion for summary judgment was granted and the action was dismissed.

The appellant sued two law firms alleging they defrauded him by misappropriating settlement funds from a motor vehicle accident claim.

The motion judge dismissed the action under Rule 2.1.01 of the Rules of Civil Procedure as frivolous, vexatious, or an abuse of process.

The Court of Appeal allowed the appeal, finding that the allegation of misappropriation was not entirely implausible and that the statement of claim did not bear the hallmarks of frivolous or vexatious litigation.

The court held that Rule 2.1.01 should be reserved for the clearest of cases and is not an appropriate mechanism for early dismissal when a pleading asserts a legitimate cause of action.

The Personal Insurance Company brought a summary judgment motion seeking a declaration that Linda-Sue Pearce was the owner of a truck involved in a motor vehicle collision, and an order dismissing the action against Personal.

The court found that Pearce, as the registered owner, failed to rebut the presumption of ownership, despite arguments that her son, Trevor James Middleton, was the true owner.

The court granted the declaration that Pearce was an owner of the truck and dismissed the action against Personal, as Pearce's own insurance policy with Wawanesa Insurance would apply.

The Applicant was injured in a motor vehicle accident and sought statutory accident benefits from the Insurer.

After the Insurer paid the outstanding income replacement benefits, the Applicant sought to withdraw the arbitration on a no-costs basis, which the Insurer opposed.

The matter proceeded to an expense hearing.

The Arbitrator found that the Applicant unnecessarily prolonged the proceedings by failing to accept earlier offers to withdraw on a no-costs basis, given the dim prospects of success due to limitation issues and a lack of evidence.

The Applicant was ordered to pay the Insurer's costs fixed at $6,000, and the Applicant's request for costs was dismissed.