Meryl Rodrigues

The appellant, Seargeant Picard Incorporated (SPI), appealed a "boomerang" summary judgment order that found the respondents' (Saxbergs') action for breach of a construction contract was not statute-barred.

SPI argued the motion judge erred in the discoverability analysis and in granting the boomerang order.

The Court of Appeal dismissed the appeal, finding no reversible error in the discoverability analysis, particularly regarding the application of the "appropriate means" test under the Limitations Act, 2002, and upheld the boomerang order given the parties' agreement and the thoroughness of the motion judge's review.

The plaintiff, Steve Scarrow, sued the defendants for wrongful dismissal, seeking damages for constructive dismissal, a retirement allowance, unpaid wages, aggravated damages, and punitive damages.

The defendants, including John Robert Walkey and three related corporations, were noted in default and did not file a defence, leading to an undefended trial.

The court found that Mr. Scarrow was constructively dismissed and was entitled to 24 months' salary in lieu of notice, a promised retirement allowance, and unpaid wages.

The court also awarded aggravated and punitive damages due to the defendants' bad faith conduct and the devastating impact on the plaintiff.

The claim for unjust enrichment was dismissed as the other awards provided adequate compensation.

All defendants were found jointly and severally liable under the common employer doctrine.

The plaintiffs brought eight proposed class actions against various long-term care (LTC) home owners and operators in Ontario, alleging systemic negligence and gross negligence in their response to the COVID-19 pandemic.

The court considered whether the claims met the certification criteria under section 5(1) of the Class Proceedings Act, 1992, particularly in light of the statutory immunity provided by the Supporting Ontario's Recovery Act (SORA).

The court certified six of the actions against the main corporate groups, finding that the pleadings disclosed a viable cause of action in gross negligence and that a class action was the preferable procedure.

However, the court dismissed the certification motions against independently owned homes and municipalities due to the lack of a collective enterprise and missing representative plaintiffs.

The defendant midwives brought a motion to strike the plaintiff father's claims against them, specifically the 'duty to report' claim.

The plaintiffs requested an adjournment to seek leave to amend their pleadings, which the court denied due to delay and inefficiency.

The court then applied the Anns/Cooper framework to the proposed 'duty to inform' the substitute decision-maker, finding it was essentially the established duty to obtain informed consent, which falls within the midwives' scope of practice.

As the scope of practice claims had already been struck in a previous ruling, the court struck the remaining duty to report claims without leave to amend.

This ruling addresses two motions to strike portions of a statement of claim brought by the plaintiffs, Jayelle and Sarel Alafi, against midwives and the Children's Aid Society of Algoma (CAS).

The Alafis sued for negligence, negligent misrepresentation, negligent infliction of mental suffering, intrusion upon seclusion, misfeasance of public office, and Charter s. 7 breaches, following the apprehension of their newborn child.

The court struck Mr. Alafi's negligence claims against the midwives related to their scope of practice, finding no duty of care owed to a non-patient third party.

The court also struck the plaintiffs' negligence claims against the CAS, reaffirming that the CAS's duty is solely to the child.

However, the court dismissed the CAS's motion to strike the plaintiffs' s. 7 Charter claims, finding it not plain and obvious that these claims would fail, particularly regarding the right to security of the person in child protection contexts.

Portions of the midwives' motion were adjourned for further submissions.

The Court of Appeal for Ontario issued supplementary reasons to its earlier judgment in Nemchin v. Green, 2021 ONCA 238, which had allowed the appellant's appeal regarding the "top-up" of long-term disability benefits assigned to the respondent's insurer, Aviva.

This addendum addresses the treatment of potential tax refunds from Sun Life's remittances and the allocation of expenses related to pursuing such refunds.

The court clarified that while Aviva is not compelled to seek tax refunds or cease tax deductions, if Aviva chooses not to pursue a tax refund, it must reimburse the appellant's reasonable expenses for bringing such an application, as Aviva would ultimately receive the benefit of any tax refunds.

This is a costs endorsement following an appeal where the Court of Appeal allowed the appellant's appeal, setting aside a trial judge's order requiring the appellant to "top up" assigned benefits due to tax deductions.

The appellant was awarded partial indemnity costs for the appeal.

This endorsement specifically addresses the costs of a prior motion before the trial judge (the "top up motion"), for which the trial judge had made no costs order.

The Court of Appeal found the appellant entitled to costs for this motion, ordering the respondent to pay $10,000, reasoning that the unanticipated nature of the trial judge's order and the parties' failure to seek an advance tax ruling contributed to the litigation.

The appellant appealed a trial judge's order requiring her to "top up" assigned long-term disability benefits to account for income tax deductions, arguing procedural unfairness and misinterpretation of s. 267.8 of the Insurance Act.

The Court of Appeal found the "top up" order procedurally unfair as it was not requested by parties and misinterpreted the statutory trust and assignment provisions.

The court held that the assignment applies to net after-tax payments, and the respondent's insurer, as assignee, must bear the burden of addressing tax implications with the insurer and CRA.

The appeal was allowed, and the "top up" order was set aside.

The appellant appealed a jury verdict awarding the respondent approximately $700,000 in damages for personal injuries arising from a motor vehicle accident.

The main issue at trial was whether the respondent's post-traumatic stress disorder was caused by the collision or by an earlier sexual assault.

The trial judge excluded surveillance video evidence and Facebook posts that the defence sought to introduce as substantive evidence of the respondent's functionality.

The Court of Appeal found that the trial judge erred in excluding the surveillance evidence by dealing with it as a whole rather than taking a discrete approach to each video excerpt, and by concluding that the evidence could only be admissible if it directly contradicted the respondent's testimony.

However, the Court found that even if the surveillance evidence were admissible, it was not so significant that it would have affected the jury's verdict on damages.

The appeal was dismissed.

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 plaintiff suffered catastrophic injuries in a snowboarding accident and sued the resort and others.

In a separate action, the plaintiff sued a rehabilitation centre for negligent care.

The resort brought a third-party claim against the rehabilitation centre in the main action for contribution and indemnity.

The rehabilitation centre moved to strike the third-party claim under Rule 21.01(1)(b).

The court granted the motion, finding that because the plaintiff had expressly limited his claim against the resort to its several share of liability, the resort faced no risk of paying a disproportionate share of damages.

Consequently, the third-party claim for contribution and indemnity was untenable in law.

The appellant insurer appealed a trial judge's decision that the insured was "authorized by law" to operate a motor vehicle under statutory condition 4(1) of O. Reg. 777/93, despite being in breach of a probation order prohibiting him from driving at night and driving with alcohol in his system.

The insured had a valid driver's licence at the time of the accident.

The Court of Appeal upheld the trial judge's decision, holding that "authorized by law" refers only to the provincial licensing scheme operated by the Ministry of Transportation and does not extend to breaches of court orders unrelated to driving licence conditions.

The court found that a broader interpretation would be inconsistent with s. 118 of the Insurance Act and would undermine the legislative intent to protect innocent tort victims.