Michael Raymond Switzer

The court determined whether costs should be awarded against the main plaintiff, Hassan Salem, for an unproductive pre-trial conference and the adjournment of a six-week trial.

Salem failed to attend the fourth pre-trial conference scheduled for April 3, 2025, and his counsel was also absent due to a scheduling conflict.

Salem had terminated his lawyer's services shortly before trial.

The court found that the fourth pre-trial conference was unproductive and awarded immediate costs.

The court also assessed costs thrown away at twenty percent of the costs and disbursements incurred by the defendant and co-plaintiff, to be paid upon trial decision or full resolution of the matter.

This costs endorsement addresses the appropriate scale and quantum of costs following the dismissal of the plaintiff Jordan’s claim for fire loss under an insurance policy.

The court rejected the defendants’ request for substantial indemnity costs, finding that the circumstances did not justify such an award.

The court fixed costs at $10,000 for each defendant, inclusive of disbursements, emphasizing proportionality and the absence of scandalous or outrageous conduct.

The court considered the apportionment of costs between two insurers, Wawanesa and Aviva, following the settlement of two related actions arising from a serious motor vehicle accident.

The plaintiff, Stephane Brazeau, sought to recover all costs and disbursements from Wawanesa, the statutory third party, after both actions settled.

The court held that costs should be apportioned equally (50-50) between Wawanesa and Aviva, and that Wawanesa was not responsible for costs related to the Statutory Accident Benefits (SABs) claim, as it had no control over those proceedings and did not benefit from the SABs settlement.

The plaintiffs, John Jordan and William Nielson, sought damages from Commonwell Mutual Insurance Group and Finnegan Insurance Brokers Ltd. regarding a policy of insurance on a hunting camp and outbuildings destroyed by fire in 2018.

The plaintiffs alleged that Finnegan failed in its duty to ensure adequate insurance coverage and acted in bad faith, and that Commonwell improperly closed the file while issues remained.

The defendants moved for non-suit, arguing that replacement insurance was not available for this type of property and that the plaintiffs had been referred to arbitration.

The court granted the summary judgment motions, dismissing the claims against both defendants, finding no credible evidence to support the plaintiffs’ claims and that the settlement cheque issued was appropriate.

This decision concerns the entitlement to the former home of Yvette Poirier and certain funds allegedly misappropriated from her bank account by her late son, Paul Poirier.

The applicant, Lyse Scharfe (Yvette’s daughter and attorney for property and personal care), sought to set aside a 2016 conveyance of the property to Paul, arguing Yvette lacked capacity and was subject to undue influence.

The court found that Yvette Poirier lacked capacity at the time of the transfer and that the presumption of undue influence was not rebutted.

The 2016 conveyance was set aside, and the property was to be re-vested in the joint names of Yvette Poirier and Paul’s estate.

The court also addressed the improper registration of a mortgage on the property by respondent’s counsel.

Two personal injury actions, arising from a 2014 collision, were commenced in North Bay.

The court, concerned about judicial resource shortages and the impact of R. v. Jordan timelines on civil matters, initiated discussions about transferring the actions to Ottawa, where the accident occurred.

The plaintiffs consented to the transfer, but the defendant opposed, arguing that a formal motion was required and that the transfer would be unfair given a prior decision to strike a jury notice to expedite the trial in North Bay.

The court, exercising its discretion under Rule 2.03 to dispense with the formal motion requirement, ordered the transfer, emphasizing that the interest of justice, particularly judicial availability in Ottawa, outweighed the defendant's objections to ensure the timely disposition of these long-standing cases.

The defendant insurer, Aviva, brought a motion for summary judgment to dismiss the plaintiff's claim for unidentified motorist coverage.

Aviva argued that the plaintiff failed to exercise reasonable due diligence to identify the at-fault driver and did not comply with statutory notice requirements.

The court dismissed the motion, finding genuine issues requiring a trial regarding the plaintiff's capacity to gather information immediately after the collision due to head trauma and whether equitable relief from forfeiture should be granted for the notice breaches.

This employment law appeal addressed three issues: mitigation of damages, the awarding of aggravated damages, and the joint and several liability of common employers.

The appellants argued the trial judge erred in finding the respondent unable to mitigate due to physical incapacity, awarding aggravated damages, and holding them jointly and severally liable.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the respondent was physically unable to mitigate, that aggravated damages were warranted due to the employer's bad faith conduct during termination, and that both entities were common employers, thus jointly and severally liable.

The plaintiffs in the main action brought a motion to strike a jury notice in consolidated motor vehicle accident trials, arguing that the estimated 8-10 week trial duration could not be accommodated within the court's allotted 6-week jury trial period due to limited judicial resources and pandemic-related backlogs.

The defendants opposed, asserting the motion was premature.

The court granted leave to bring the motion, finding the delay justified by the pandemic's impact and judicial resource constraints.

The motion to strike the jury notice was granted, converting the main action to a judge-alone trial, emphasizing the necessity of ensuring timely justice given the case's age and the unlikelihood of completing a jury trial within the available time.

This motion sought to enforce two settlements (tort and accident benefits) totaling $2 million, which the plaintiff, Paul-Robert Hipkiss, refused to finalize by signing releases.

The plaintiff asserted the releases were unconstitutional restrictions on his freedom of speech.

The court expressed significant concerns regarding the plaintiff's mental capacity to make decisions in his best interests, noting his unrepresented status despite having a lawyer of record (QTMG LLP) whose interests appeared to conflict with his own.

The motion was adjourned, and the Public Guardian and Trustee was directed to investigate the plaintiff's capacity to manage property due to the serious adverse effects of his refusal to sign, including lack of access to settlement funds and ongoing accident benefits.

The defendants brought a motion seeking costs thrown away on a substantial indemnity basis for a late trial adjournment and an order suspending pre-judgment interest.

The trial was adjourned due to the plaintiff's counsel's failure to comply with timetable orders, including providing proper witness statements and an ever-changing witness list, which rendered the original four-week trial estimate unrealistic.

The court found the plaintiff and his counsel responsible for the adjournment, awarded the defendants $100,000 in costs thrown away on a partial indemnity basis, and suspended pre-judgment interest from the original trial date until the new trial date.

This costs endorsement followed a successful motion by the defendants to transfer an action from Perth to Oshawa.

The court found the defendants' requested costs of over $12,000 to be excessive for a straightforward, in-writing motion within a Simplified Procedure action.

The court awarded all-inclusive costs of $2,500, payable by the plaintiff to the defendants.

The defendants moved for an order transferring this action from Perth to Oshawa, arguing Oshawa was a significantly better venue due to the contract being entered there, vehicle servicing in Durham Region, and witness locations.

The plaintiff opposed, citing inconvenience for his family witnesses in the East Region.

The court applied Rule 13.1.02(2)(b) of the Rules of Civil Procedure holistically, finding Oshawa significantly better given the transaction's nexus, service locations, and defendant witness locations, despite the plaintiff's current residence.

The motion was granted, transferring the action to Oshawa.

The appellant appealed a trial judgment in a motor vehicle accident case, alleging various trial errors constituted a miscarriage of justice, including leading questions by plaintiff's counsel, mention of independent medical examinations, discussion between counsel and plaintiff after cross-examination, mention of insurance, admission of opinion evidence from a body shop manager regarding vehicle speed, and the trial judge's charge excluding a zero award of general damages.

The appellant also sought leave to appeal the costs award, alleging the trial judge failed to give sufficient weight to proportionality.

The Court of Appeal dismissed both the appeal and the leave to appeal on costs, finding no error in the trial judge's handling of the trial events or costs decision.

This decision addresses a cost endorsement following an 11-day jury trial where the plaintiff's negligence claim against the defendant, Sears Canada Inc., was largely unsuccessful.

The defendant sought substantial indemnity costs against the plaintiff and a portion of costs against OHIP.

The court dismissed the claim for costs against OHIP, finding that its statutory subrogation claim was not assessed and had no significant impact on the trial.

For the plaintiff, the court considered the defendant's Rule 49 offer to settle, the overriding principle of reasonableness, and various factors under Rule 57.01(1), including the complexity of the case, the amount claimed and recovered, and counsel rates.

The court fixed a reasonable cost award against the plaintiff at $200,000, inclusive of HST, to be paid within 30 days.

The plaintiff brought a motion to remove Michael Switzer as lawyer of record for the defendant Mario Ascani's insurer, State Farm Insurance, due to a disqualifying conflict of interest.

The conflict arose from the same law firm representing State Farm in both a tort action against Ascani and an accident benefits arbitration for the plaintiff.

The court found that the defendant failed to rebut the presumption of confidential information sharing within the firm, and that the firm was in a disqualifying conflict, ordering the removal of counsel.

The defendant Graham McKeddie moved for summary judgment to dismiss the claim against him, which was based on social host liability.

The plaintiff, a minor injured as a passenger in a car driven by Graham's son, supported the dismissal.

The defendant Echelon General Insurance Company, a party under uninsured/underinsured provisions, cross-claimed against Graham alleging social host liability.

The court applied the framework from Childs v. Desormeaux and the summary judgment principles from Hryniak v. Mauldin.

Despite conflicting evidence regarding the host's interaction with the guests, the court found insufficient evidence to establish a paternalistic relationship or any other basis for a positive duty of care on the host's part as a social host.

The motion for summary judgment was granted, dismissing the claim against the moving defendant.

The plaintiffs brought a summary judgment motion seeking recovery of property damages arising from a motor vehicle collision in which the defendant driver lost control and struck them and their property.

The insurer sought to rely on the existing statement of claim or, alternatively, to amend it to add property damage claims after the two‑year limitation period had expired.

The court held that the statement of claim contained no material facts or relief relating to property damage as required by the Rules of Civil Procedure.

The proposed amendment would introduce a new cause of action that was statute‑barred under the Limitations Act, 2002, and the doctrine of promissory estoppel did not apply because no promise not to rely on the limitation period was established and there was no reliance.

The motion for summary judgment and amendment was dismissed.

In a personal injury action arising from a motor vehicle accident, the defendants brought a motion seeking multiple discovery-related orders, including further production of documents, clarification of undertakings and refusals, and a second medical examination.

The court emphasized compliance with Rule 37.10(10) of the Rules of Civil Procedure requiring a refusals and undertakings chart and criticized the moving parties for failing to provide one.

Several document production requests were dismissed as irrelevant or disproportionate, while limited additional disclosure was ordered, including production of an unredacted medical file and updated affidavit of documents.

The plaintiff was also ordered to attend a neuropsychological independent medical examination.

The decision highlights proportionality and procedural compliance in discovery motions.

Following a motion where the defendant sought summary judgment dismissing a slip and fall claim and leave to amend its statement of defence, the court addressed the issue of costs.

The plaintiffs successfully resisted the summary judgment motion, which constituted the primary issue, while the defendant succeeded in obtaining leave to amend its defence to plead that it was not an occupier under the Occupiers’ Liability Act.

Applying the factors under Rule 57 of the Rules of Civil Procedure, the court found that success was divided but favoured the plaintiffs.

Substantial indemnity costs were declined as the defendant’s motion was not unreasonable.

Partial indemnity costs were awarded, adjusted for divided success.