Mark Edward Paul Cavanaugh

The moving party sought leave to appeal an unreported decision of Patterson J. dated October 22, 2019.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $5,000 inclusive.

The defendant moved for leave to appeal an interlocutory order that allowed its appeal from a Master's decision but remitted the matter for a new status hearing with the right for the plaintiff to file additional evidence.

The court dismissed the motion for leave to appeal, finding that the proposed issues did not involve unsettled law and did not raise matters of general importance.

Costs of $5,000 were awarded to the plaintiff.

The defendant brought a motion for summary judgment to dismiss the plaintiff's action, which sought to rescind a 2001 settlement agreement regarding a disability insurance policy.

The plaintiff had previously settled the claim, surrendered the policy, and signed a full and final release while represented by counsel.

The court found no evidence of duress, unilateral mistake, or inadequate legal representation to justify setting aside the settlement.

Furthermore, the court held that the plaintiff's action was statute-barred under the Limitations Act.

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

The defendant brought a motion to strike the plaintiff’s statement of claim without leave to amend under Rules 21.01 and 25.11 of the Rules of Civil Procedure.

The claim alleged conspiracy, fraudulent misrepresentation, and negligence arising from the defendant’s conduct and counsel’s conduct in a separate ongoing action between the same parties.

The court held that the pleading disclosed no reasonable cause of action because a separate lawsuit cannot be used to challenge litigation conduct occurring in another proceeding.

The court further found that another proceeding between the same parties concerning the same subject matter was already pending, rendering the new action improper and abusive.

The statement of claim was struck without leave to amend, the action was dismissed, and the plaintiff was prohibited from commencing further proceedings against the defendant without leave of the court.

The defendant insurer appealed a master's decision made at a Rule 48.14 status hearing that allowed a delayed action to continue.

The court considered recent Court of Appeal jurisprudence clarifying that the purpose of a status hearing is not case management but to determine whether the plaintiff can provide an acceptable explanation for delay and demonstrate absence of non-compensable prejudice to the defendant.

The evidence filed on behalf of the plaintiff consisted only of affidavits from counsel explaining that the file had fallen through the cracks, with no affidavit from the plaintiff herself.

The court held that such evidence does not satisfy the plaintiff’s evidentiary burden under the modern status hearing framework.

The appeal was allowed and the master's order was set aside, but rather than dismiss the action outright, the court directed that a new status hearing be scheduled with a fresh evidentiary record.

The appellant appealed a trial judgment declaring his long-term disability insurance policy void for material non-disclosure.

On his insurance application, the appellant failed to disclose past medical complaints regarding his back and hip.

He subsequently became disabled from acute meningitis and sought benefits.

The Court of Appeal upheld the trial judge's finding that the omitted information was material, as it would have caused the insurer to issue the policy with exclusions for back and hip ailments.

The appeal was dismissed.

The appellant insured was receiving disability benefits following an automobile accident.

The respondent insurer suspended benefits after the appellant refused to attend an addiction treatment program recommended by an addiction expert who examined him under the insurance contract.

The appellant brought an application for a declaration that benefits could not be terminated, and the insurer successfully moved for an order for another medical examination by the same expert under s. 105 of the Courts of Justice Act and Rule 33.

The Divisional Court dismissed the insured's appeal, holding that a medical examination conducted pursuant to an insurance contract prior to litigation does not pre-empt a defendant's prima facie right to a first medical examination under the rules of civil procedure.

The defendant insurer appealed an order granting a mandatory interlocutory injunction that required it to pay periodic disability benefits to the plaintiff pending trial.

The Divisional Court allowed the appeal and set aside the order, finding that the motions judge erred in concluding the plaintiff would suffer irreparable harm.

The Court held that social stigma, loss of dignity, and potential loss of residence were not supported by the evidence as constituting irreparable harm in this context, and that the policy did not provide for ongoing future benefits without proof of continuing disability.

The plaintiff, who claimed to suffer from chronic fatigue syndrome, was denied long-term disability benefits by the defendant insurer.

The plaintiff commenced an action and successfully moved for a mandatory interlocutory injunction requiring the insurer to pay periodic disability benefits and arrears until trial.

The insurer appealed.

The Divisional Court allowed the appeal and set aside the injunction, finding that the motions judge erred in concluding the plaintiff would suffer irreparable harm.

The majority held that the plaintiff's financial hardship and potential loss of dignity did not constitute irreparable harm, as damages would be an adequate remedy if the plaintiff succeeded at trial.