Mark Stoiko

The plaintiff in a personal injury action served new expert reports very late, just prior to the third scheduled trial date.

The defendants objected to their admissibility due to non-compliance with the court-ordered timetable and the inability to secure responding reports.

The court found the plaintiff's explanation for the delay unreasonable, noting the issue of potential conflict with the original experts (retained through a company owned by the former solicitor's husband) was known since 2016 and highlighted by a recent mistrial decision.

The judge deemed the late reports presumptively inadmissible but deferred the final determination of admissibility to the trial judge.

This is an appeal from a judgment dismissing the appellant’s action arising from a motor vehicle accident, following a jury’s verdict.

The appellant claimed the trial judge erred by not permitting the jury to deliberate on future income loss and housekeeping expenses, and by refusing expert testimony on these costs.

The Court of Appeal dismissed the appeal, finding that the jury's undisputed finding of no causation rendered the rulings on damages irrelevant.

The Court of Appeal for Ontario allowed an appeal by BridgePoint Financial Services, setting aside a motion judge's order that reduced interest payable on litigation loans obtained by Rudolf Steinberg.

The motion judge had found the loans not unconscionable but granted a "modest amount of relief" due to COVID-19 related delays.

The Court of Appeal held that once the loans were found not unconscionable under the Unconscionable Transactions Relief Act, there was no legal basis to vary the interest.

It emphasized that courts cannot rewrite contracts or relieve parties from improvident bargains, and that COVID-19 delay, while "legitimate," did not justify reducing contractual interest.

The court also noted procedural unfairness as the basis for the reduction was not argued by the respondent.

In a personal injury trial arising from a motor vehicle accident, the plaintiff sought leave to adduce a late-served loss of income expert report.

The court denied leave under Rule 53.08, finding no reasonable explanation for the delay and prejudice to the defendants.

During the trial, a voir dire revealed that the plaintiff's law firm had retained medical experts through an assessment company owned by the spouse of the firm's principal lawyer.

The assessment company had also significantly marked up the expert's invoice.

Finding an egregious and undisclosed conflict of interest that breached the duty of loyalty, the court declared a mistrial.

The appellant appealed an order finding him in contempt and dismissing his action for persistently refusing to attend court-ordered medical examinations in Toronto.

The appellant argued the motion judge erred by not treating contempt as a last resort and by failing to accept his legitimate excuse for non-compliance.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decision to find the appellant in contempt and to dismiss the action, emphasizing the appellant's deliberate non-compliance and the futility of further opportunities to comply.

This endorsement addresses the issue of costs following a jury trial where The Co-operators General Insurance Company was wholly successful in two consolidated claims against Bagwandat (Ron) Doobay.

The jury found Mr. Doobay not catastrophically impaired, not entitled to income replacement benefits, and awarded Co-operators $60,000 for repayment of benefits and punitive damages.

The court awarded Co-operators substantial indemnity costs from the date of their offer to settle and partial indemnity costs prior to that, totaling $135,400.00.

The court rejected Mr. Doobay's argument of impecuniosity, noting his prior assets and the existence of an adverse costs insurance policy.

It also ruled that costs previously awarded in arbitration could not be claimed in these court proceedings.

This motion addressed the quantum of interest owing on litigation loans obtained by the plaintiff, Rudolph Steinberg, from BridgePoint Financial Services Limited.

The plaintiff argued the high interest rates were unconscionable and sought a cap on the interest.

The court found the loan agreements contractually sound, noting the plaintiff received legal advice and acknowledged the terms.

While largely rejecting the unconscionability argument, the court granted a reduction of $75,000 in accrued interest due to legitimate delays caused by the COVID-19 pandemic, balancing this against the plaintiff's own conduct which had exacerbated the accrual of interest.

The plaintiff brought a motion to amend her statement of claim to add a claim for punitive and aggravated damages, nearly 12 years after the motor vehicle accident and after the action had been set down for trial and case managed for two years.

The court dismissed the motion, finding that the egregious delay led to a presumption of non-compensable prejudice to the defendant, making it inappropriate to grant the amendment on the "eve of trial."

Following a 14-day trial where the plaintiff's motor vehicle accident claim was dismissed, the successful defendant sought costs.

The plaintiff argued that his impecuniosity, relying on social assistance, should insulate him from an adverse costs award.

The court rejected this argument, noting the plaintiff had access to after-the-event insurance and that impecuniosity rarely prevents a costs award.

The court awarded the defendant partial indemnity costs, reducing the claimed fees and disbursements to an amount reasonable for an unsuccessful litigant to pay, fixing total costs at $158,000.

The plaintiff moved to set aside an order requiring in-person defence medical examinations, citing COVID-19 concerns and relying on Rule 59.06.

The defendant brought a cross-motion to vary the order due to changes in expert availability and location.

The court found the plaintiff's evidence, largely hearsay from counsel's associate, insufficient to justify setting aside the order and drew an adverse inference from the lack of direct evidence from the plaintiff.

The court dismissed the plaintiff's motion but granted the defendant's request to amend the order to reflect the new experts and examination locations, finding the plaintiff's refusal to consent unreasonable.

The Stevens defendants brought a motion seeking leave to compel the plaintiff, Emanuel Ismail, to undergo an independent psychiatric examination.

The plaintiff had previously submitted a psychologist's report and initially agreed to a psychiatric assessment but later refused, citing concerns about location, number of visits, and the necessity of a psychiatrist to respond to a psychologist.

The court granted leave for the motion and ordered the plaintiff to attend the psychiatric examination, emphasizing the systemic issue of late expert reports and the need for trial fairness.

The court found that a psychiatric assessment was necessary given the plaintiff's use of anti-depressant medication and the claim for future care costs related to it, distinguishing this case from others where such examinations were deemed unnecessary.

The defendant moved to dismiss a motor vehicle accident action for delay under the Rules of Civil Procedure, relying on the plaintiffs’ failure to comply with a litigation timetable and to set the matter down for trial.

A plaintiff brought a cross‑motion to vary the timetable order previously imposed when the action was reinstated after an administrative dismissal.

The court held that the earlier reinstatement order effectively displaced reliance on the six‑month set‑down requirement and that dismissal for delay was not warranted.

While most of the delay was attributable to the plaintiffs, including missed deadlines and discovery delays partly arising from conflict-of-interest issues among plaintiffs, the court emphasized the preference for resolving civil actions on their merits.

The timetable order was varied and the action permitted to proceed, subject to the defendant’s ability to raise prejudice at trial arising from incomplete medical records.