Michael Burgar

This costs endorsement addresses the appropriate scale and quantum of costs following a jury trial in a fatal motor vehicle accident case.

The court reviews the application of the Victims’ Bill of Rights, the reasonableness of the costs claimed, the effect of contingency fee agreements, and the impact of offers to settle.

Substantial indemnity costs are awarded throughout, reduced by 5% for contributory negligence, resulting in a total award of $490,368.86 to the plaintiffs.

The plaintiffs brought a motion to restore their personal injury action to the trial list after it was struck off due to the inaction of their former lawyer, who was subsequently suspended by the Law Society.

The defendants brought a cross-motion to dismiss the action for delay.

The court found that the plaintiffs had an acceptable explanation for the delay, as they had constantly inquired about the status of their file and were failed by their former lawyer.

The court also found no non-compensable prejudice to the defendants, as liability had been admitted and relevant evidence preserved.

The plaintiffs' motion was granted and the defendants' cross-motion was dismissed.

Pafco Insurance Company brought a motion for summary judgment to dismiss third-party claims against it, arguing its automobile insurance policy for Tammy Lea Todish was validly terminated.

Desjardins General Insurance Company cross-moved for a declaration that the policy was in effect.

The court found that the notice of cancellation, despite not explicitly providing an address for payment but rather a broker's name and phone number, was not deficient given the insured's prior understanding and ability to reinstate the policy.

Consequently, the court ruled that no insurance policy was in effect at the time of the accident, granting Pafco's motion and dismissing the third-party claim.

The defendants brought a motion under Rule 21.01(1)(b) to strike the plaintiffs' statement of claim for breach of contract, arguing it disclosed no reasonable cause of action.

The defendants sought to introduce evidence, including affidavits and cross-examination transcripts from a prior motion for particulars, which they argued should be treated as particulars.

The court rejected this evidence, holding that Rule 21.01(2)(b) strictly prohibits evidence on a motion to strike and that parties cannot contract out of this rule.

Assuming the pleaded facts to be true, the court found the plaintiffs had adequately pleaded all elements of a breach of contract claim and dismissed the motion.

The appellant, a former nurse, appealed the dismissal of her motion for a declaration that her insurer (HIROC) owed her a duty to defend against multiple civil actions.

These underlying actions alleged the tort of intrusion upon seclusion, negligence, breach of statute, and breach of fiduciary duty, stemming from her unauthorized access of patient records to obtain narcotics.

The Court of Appeal upheld the motion judge's decision, finding no duty to defend.

The court affirmed that the tort of intrusion upon seclusion, whether intentional or reckless, involves conduct that is not "accidental" and thus falls outside the policy's definition of "occurrence" and within the intentional act exclusion.

The court also rejected the argument that denying coverage for intentional privacy breaches would nullify the policy, as it still covered negligent privacy breaches.

The court issued a costs endorsement following mixed results on related motions, which included certifying a class action for intrusion upon seclusion, dismissing a motion to appoint a new representative plaintiff, granting summary judgment for the defendants on a negligence claim, and dismissing the defendants' summary judgment motion on the intrusion upon seclusion claim.

Given the mixed outcomes, the novelty of the intrusion upon seclusion tort in this context, and the potentially modest damages, the court ordered that costs of these motions shall be in the cause of the common issues trial.

The plaintiff sought to certify a class action against a hospital and a former nurse who improperly accessed thousands of patient records to steal Percocet.

The defendants opposed certification and moved for summary judgment, arguing the privacy breach was fleeting and caused no compensable harm.

The court certified the class action for the tort of intrusion upon seclusion, finding that even a minimal intrusion into highly private health records could be considered 'highly offensive'.

However, the court granted summary judgment dismissing the negligence claim, as the plaintiffs suffered no actual compensable harm.

The plaintiff's motion to substitute a new representative plaintiff was also dismissed due to the proposed representative's unsuitability.

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

Liability was admitted, and a jury awarded general damages.

The defendant moved to dismiss the general damages award, arguing the plaintiff failed to establish that his injuries exceeded the statutory threshold for permanent, serious impairment under the Insurance Act.

The court assessed the plaintiff's credibility, finding significant inconsistencies in his testimony and reporting of pre-accident history and employment.

The court also scrutinized the expert evidence, particularly rejecting the plaintiff's psychiatric expert for acting as an advocate.

Concluding that the plaintiff failed to meet the evidentiary requirements to establish a permanent, serious impairment of an important physical, mental, or psychological function, the court granted the defendant's motion and dismissed the plaintiff's claim for general damages.

The defendants brought a motion for a mistrial during trial, alleging prejudice from a newspaper article and improper conduct by plaintiffs' counsel.

The court dismissed the mistrial motion, finding no real danger of prejudice as no jurors had read the article, and that appropriate judicial instructions could cure any potential harm.

The court also ruled on the admissibility of the plaintiffs' expert evidence regarding dependency loss, specifically allowing a scenario based on career advancement despite some foundational facts not being fully proven, emphasizing that the weight, not admissibility, of expert testimony is affected by unproven facts.

The plaintiff, Arsim Grajqevci, suffered personal injuries from a motor vehicle accident.

Following a jury award, the statutory third party, Allstate Insurance Company, brought a motion for directions on two issues: (1) whether a threshold determination under s. 267.5(15) of the Insurance Act was required for non-pecuniary general damages and health care costs, even though the award for pain and suffering was reduced to nil by deductibles; and (2) whether payments received by the plaintiff from the Government of Ontario under the Ontario Disability Support Program (ODSP) and Ontario Works (OW) should be deducted from the award for past loss of income.

The court ruled that a threshold determination was not required when the plaintiff was not entitled to an award for health care expenses or non-pecuniary loss after deductibles.

The court also found that OW and ODSP payments were not deductible because Allstate failed to establish they were "in respect of the incident" (the motor vehicle accident), as the benefits were primarily related to the plaintiff's other health conditions (HIV, tuberculosis).

A defendant sought a declaration that one or more insurers had a duty to defend her in a personal injury action arising from an incident involving a hydraulic lift on a rented truck.

The court analyzed whether coverage was available under multiple automobile policies and a homeowner’s policy, and the priority between them.

Applying the pleadings rule for the duty to defend and the statutory framework under the Insurance Act, the court found that the claim arose from the use or operation of the rented vehicle.

The insurer of the rental truck was held to have the primary duty to defend, while the homeowner’s policy was excess and the other automobile policies did not afford coverage.

The plaintiffs brought a motion to amend their statement of claim in a fatal motor vehicle negligence action and to permit the late delivery of a jury notice.

The proposed amendments included adding a claim for punitive damages, pleading admissions and res judicata based on a corporate defendant’s guilty plea to a provincial offence arising from the accident, and providing further particulars of an income loss claim under the Family Law Act.

The court held that amendments should generally be permitted unless non-compensable prejudice would result and found the proposed amendments were tenable and raised issues better determined at trial.

The court also found that the amendments reopened the pleadings, allowing delivery of a jury notice.

Leave to amend and to deliver a jury notice was granted, with costs to the plaintiffs.

The applicant and respondent dentists operated a joint venture general dentistry practice.

The respondent returned to school to become a specialist, reducing his hours but maintaining his draw.

The applicant gave 90 days' written notice to terminate the joint venture.

When the parties could not agree on the mechanics of separation, the applicant sought a declaration of termination and sole ownership.

The court granted the application, declaring the joint venture terminated effective June 30, 2014, ordering the respondent to vacate the practice, and directing the parties to proceed with a valuation and buyout of the respondent's interest.

The moving party sought summary judgment declaring that the co-defendant’s insurer was the first loss insurer under s. 277(1.1) of the Insurance Act arising from a single-vehicle accident involving a rented car in New York State.

The motion also sought a declaration that Ontario law governed vicarious liability issues and that the insurer fund the defence.

The court held that there were genuine issues requiring trial, including whether the driver was a renter or co-lessee under the rental agreement and whether New York law governed liability under the lex loci delicti rule.

The court further concluded that the narrow injustice exception to lex loci delicti did not clearly apply at this stage.

The insurer’s cross-motion to amend pleadings to plead New York law was granted because the amendment did not withdraw an admission and caused no non-compensable prejudice.

The applicant sought costs on a complete indemnity basis for steps taken to compel the respondents' compliance with a consent order.

The respondents had paid the outstanding amounts prior to the final motion hearing, which was subsequently dismissed.

The court found the applicant was entitled to costs for steps taken prior to the respondents' compliance, but not for the unnecessary second appearance.

The court awarded the applicant partial indemnity costs, set-off against the respondents' costs for the second appearance, resulting in a net award of $14,500 to the applicant.

The appellant insurer appealed a master’s order compelling answers to discovery refusals and production of documents from its claims file in litigation arising from a propane facility explosion and a coverage dispute.

The insurer asserted solicitor-client privilege and litigation privilege over memoranda, meeting notes, and claims file materials generated during the coverage investigation.

The court held that an appeal from a master’s decision is not a de novo hearing and is limited to correcting errors of law, wrong principles, or palpable and overriding errors.

The insurer failed to establish an evidentiary basis for either solicitor-client privilege or litigation privilege because no affidavit evidence demonstrated that the documents contained legal advice or were created for the dominant purpose of litigation.

The master’s order requiring production was therefore upheld.

The plaintiffs brought a motion to set aside a registrar's order dismissing their action for delay.

The action, which sought $25 million in damages against a condominium superintendent and related parties for alleged criminal acts, was dismissed after the plaintiffs inadvertently missed a court-ordered deadline to set the action down for trial.

The Master applied the Reid factors and found that the plaintiffs moved promptly to set aside the order, the delay was adequately explained and resulted from inadvertence, and the defendants suffered no actual prejudice.

The motion was granted and the dismissal order was set aside with no order as to costs.

A costs decision following a summary judgment motion concerning the priority of motor vehicle liability insurance coverage under s. 277 of the Insurance Act.

The moving parties sought full indemnity costs exceeding $39,000, arguing that where insurers share a duty to defend, equitable principles require full reimbursement of defence costs.

The third party insurer opposed, submitting the dispute concerned priority of coverage rather than the existence of a duty to defend, and that only modest partial indemnity costs should be awarded.

The court held that priority disputes between insurers do not give rise to the same contractual obligation to fully indemnify defence costs as duty-to-defend cases.

Considering delay in bringing the motion and the unsettled nature of the law, the court awarded reduced costs.

The defendant landlord brought a motion for summary judgment to dismiss a subrogated claim by the plaintiff tenant's property insurer.

The claim arose from water damage caused by a burst pipe.

The landlord relied on an exculpatory clause in the commercial lease stating it was not liable for damage to the tenant's property 'however caused'.

The court dismissed the motion, finding that the lease only required the tenant to obtain public liability insurance, not property insurance, and that the scope and application of the exculpatory language raised genuine issues requiring a trial.

The plaintiff brought a motion under subrule 5.04(2) and rule 26.01 of the Rules of Civil Procedure seeking leave to amend its statement of claim to add a new defendant in a property contamination dispute.

The proposed defendant opposed the amendment on the basis that the applicable limitation period under the Limitations Act, 2002 had expired.

The court held that the moving party failed to provide sufficient evidence to rebut the presumption of discoverability under s. 5(2) of the Act, including evidence of when the claim was discovered or what investigative steps had been taken.

Because the evidentiary record did not establish any doubt about the expiry of the limitation period, the proposed claims were considered clearly statute barred.

The motion to amend was dismissed, though the moving party was permitted to renew the motion with proper evidence within 45 days.