Mark Elkin

The plaintiff brought a motion for summary judgment in a civil claim for sexual assault, battery, and breach of fiduciary duty against her former criminal lawyer.

The defendant had previously pleaded guilty to criminal assault for the same incident but filed no evidence on the summary judgment motion, citing his Alzheimer's diagnosis.

The court found no genuine issue requiring a trial on liability, as the defendant conceded the facts supporting the criminal conviction.

The court refused to adjourn the motion for a defence medical due to the defendant's delay.

The court awarded the plaintiff $70,000 in general non-pecuniary damages and $5,000 for future therapy costs.

The appellant appealed a jury award of zero damages and a trial judge's ruling that her claim for non-pecuniary loss did not meet the statutory threshold under the Insurance Act following a motor vehicle accident.

The appellant argued the jury verdict was perverse and the trial judge erred in his threshold analysis.

The Court of Appeal dismissed the appeal, finding it was open to the jury to conclude the appellant's post-accident difficulties were inevitable due to pre-existing osteoarthritis, and there was ample evidence supporting the trial judge's threshold ruling.

Following a jury trial for a motor vehicle accident, the plaintiff was awarded $2,000 for future housekeeping expenses, with all other heads of damage reduced to zero by statutory deductibles.

The plaintiff brought a motion for judgment, arguing the housekeeping award should not be reduced by a prior $3,650 accident benefits settlement.

The court found the settlement release covered past, present, and future housekeeping expenses, reducing the jury award to zero.

As the successful parties who had made a better offer to settle, the defendants were awarded partial indemnity costs of $138,416.42.

The plaintiff sought damages for injuries from a motor vehicle accident.

The defendants admitted liability but brought a threshold motion to declare the plaintiff's non-pecuniary loss claim barred under s. 267.5(5) of the Insurance Act, arguing the plaintiff did not sustain a permanent, serious impairment of an important physical, mental, or psychological function.

The court applied the three-part Meyer v. Bright test, finding the plaintiff suffered permanent chronic pain, anxiety, driving phobia, and depression, which constituted a permanent and serious impairment of important functions.

The defendants' motion was dismissed.

Following a jury verdict awarding modest damages in a motor vehicle accident action, the defendant brought a post-verdict threshold motion seeking a declaration that the plaintiff’s claim for non‑pecuniary damages was barred under s. 267.5(5) of the Insurance Act.

The court applied the three-part test from Meyer v. Bright to determine whether the plaintiff sustained a permanent serious impairment of an important physical, mental or psychological function.

Despite the minor impact of the final collision and the jury’s minimal damages award, the court found credible medical and vocational evidence that the accident exacerbated existing conditions, resulting in chronic pain syndrome and functional incapacity preventing gainful employment.

The court held that the plaintiff met the statutory threshold and the defendant remained liable for non‑pecuniary damages.

The plaintiff's motor vehicle accident action was dismissed after failing to meet the statutory threshold, despite a jury awarding $30,000 in general damages.

Both parties sought costs.

The court found that the defendant's counsel engaged in uncivil conduct, failed to cooperate on a joint document brief, delivered late expert reports, and repeatedly ignored a trial management order and court deadlines.

Although the defendant was the successful party and would normally be entitled to costs of approximately $100,000, the court exercised its discretion to deprive the defendant of costs due to counsel's misconduct.

The defendant was ordered to pay $441.13 for half the copying costs of the joint document brief.

The appellant hosted a golf tournament at the respondents' golf course.

A guest was injured in a golf cart accident and sued the respondents for negligent course design.

The respondents brought a third-party claim against the appellant for contractual indemnity based on a clause in the event contract.

The motion judge granted summary judgment to the respondents.

On appeal, the Court of Appeal reversed, holding that the indemnity clause did not clearly and unambiguously shift the risk of the respondents' own negligence to the appellant.

Following a trial where the Toronto Transit Commission (TTC) was found not liable for a streetcar accident involving a four-year-old child, the TTC sought its costs of the proceeding.

The court declined to award costs to the TTC, noting that the child could not be at fault and that the TTC, as a public service, should bear the costs of defending such claims where the injured party is not at fault.

The court also declined to award costs for the TTC's counterclaim against the child's parents, resulting in no order as to costs for any party.

The appellant appealed a threshold ruling and costs order made by the trial judge in a motor vehicle accident action.

The appellant abandoned the appeal of the threshold ruling but argued the trial judge erred in departing from the usual costs consequences after the plaintiff obtained a judgment less favourable than the appellant's offer to settle.

The Court of Appeal agreed, finding no exceptional circumstances to justify the trial judge's departure from the rule.

The Court set aside the order of no costs post-offer and awarded the appellant $70,000 in costs, to be set off against the $135,000 awarded to the respondent for pre-offer costs.

A four-year-old boy ran across a street mid-block and was struck by a TTC streetcar.

The plaintiffs sued the TTC and the streetcar operator for negligence.

Under s. 193(1) of the Highway Traffic Act, the defendants bore the onus of proving they were not negligent.

After hearing extensive expert evidence on accident reconstruction, perception-reaction times, and streetcar braking mechanics, the court concluded that the child ran into the streetcar's path too late for the operator to avoid the collision.

The defendants successfully rebutted the presumption of negligence, and the action was dismissed.

In a civil jury trial, the plaintiff brought a motion seeking to question sworn jurors for potential bias relating to abortion after the jury panel had already been selected and sworn.

The plaintiff relied on survey evidence suggesting Canadians hold strong views on abortion and argued that questioning jurors was necessary to identify potential prejudice.

The court held that civil juries are presumed capable of setting aside personal views through the trial process and judicial instructions, and that there was insufficient evidence of widespread bias that would justify such questioning.

The court emphasized the discretionary nature of challenges for cause in civil proceedings and warned that permitting such questioning could create delays and open the floodgates to inquiries on many personal characteristics.

The motion was dismissed.

Following a jury trial where the plaintiffs recovered damages for general damages and future care but failed on claims for wage loss, the court determined the appropriate costs award.

The plaintiffs sought substantial indemnity costs exceeding $247,000, while the defendants argued for partial indemnity costs around $105,300.

Applying the principles of reasonableness under s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court held that substantial indemnity was not justified because there was no reprehensible conduct by the defendants.

The court emphasized that costs must be fair and proportionate to the result achieved.

Partial indemnity fees of $100,000 and disbursements of $50,000 inclusive of HST were awarded.

In a motor vehicle personal injury jury trial, the defendants brought a threshold motion under s. 267.5(5) of the Insurance Act seeking to bar the plaintiff’s claim for non‑pecuniary damages.

Liability had been admitted and the jury awarded $125,000 in general damages and $150,000 for future care costs.

The court considered whether the plaintiff sustained a permanent serious impairment of an important physical, mental or psychological function within the meaning of the statutory threshold under Bill 198 (Regulation 381/03).

Evidence showed the plaintiff suffered ongoing ankle and neck problems and an exacerbation of pre‑existing clinical depression that significantly limited his daily functioning.

The court held that the combined physical and psychological impairments met the statutory threshold and substantially interfered with the plaintiff’s usual activities of daily living.

The defendants’ threshold motion was dismissed and the plaintiff was entitled to judgment in accordance with the jury’s verdict.

The appellant appealed a judgment dismissing his application to assess two legal accounts from the respondent, delivered in 1999 and 2008.

The appellant also moved to introduce fresh evidence to seek a new assessment hearing for all accounts.

The Court of Appeal found no error in the application judge's reasons, noting a 2001 consent agreement covering the 1999 account and a lack of special circumstances for the 2008 account.

The motion to introduce fresh evidence was denied, as the appellant only sought assessment after deciding his wife's legal bills were too high.

The appeal was dismissed.

The appellants appealed a jury's damages award of nearly $1 million following a motor vehicle accident where liability was conceded.

The appellants argued the trial judge improperly interfered by questioning witnesses to assist the plaintiff's case, unfairly diminished the defence's position in the jury charge, and that the damages were excessive.

The Court of Appeal dismissed the appeal, finding the trial judge's questions were largely for clarification and non-confrontational, noting that experienced trial counsel did not object.

The court also found the jury charge was fair and balanced, and saw no basis to interfere with the damages award.

The appellant was awarded $20,000 in general damages by a jury in a personal injury action arising from a motor vehicle accident.

The trial judge deprived the appellant of costs under Rule 76.13, finding it was unreasonable to proceed outside the simplified procedure regime.

The Court of Appeal allowed the appeal, holding that the trial judge's costs ruling could not be reconciled with his pre-verdict assessment of the case, including his jury instruction suggesting a range up to $75,000 and his dismissal of the respondents' threshold motion.

The appellant was awarded costs of the action and the appeal.