Neil Searles

The defendant vehicle owner moved for summary judgment to determine whether her automobile insurer or the plaintiff's insurer was responsible for payment of a settlement arising from a motor vehicle accident.

The vehicle had been purchased by the moving party for her son, who was unlicensed, and left entirely in his possession and control.

The court found that the moving party gave express consent to possession and implied consent to operate the vehicle on the highway, as it was objectively and subjectively foreseeable that her son would drive it despite any prohibition.

Any driving prohibition was ineffective and unenforced.

The moving party was found vicariously liable under s. 192 of the Highway Traffic Act, and her insurer was ordered to pay the settlement.

The plaintiff brought a motion for contempt against the defendant for breaching a Mareva order.

The defendant had drawn approximately $950,000 from lines of credit secured against her properties, contrary to the order.

The defendant admitted to the breach and claimed she had been defrauded in a cryptocurrency investment scheme.

The court found the defendant in contempt but imposed a fine of $7,500 rather than imprisonment, considering the defendant's personal circumstances, remorse, and the fact that the contemptuous conduct was complete.

Costs were fixed at $50,000.

The decision addresses motions for a representative order and for an interlocutory injunction in the context of the de-rostering of patients from a community health centre in Sault Ste.

Marie.

The plaintiff, Michael Da Prat, sought to represent both subscribers and non-subscribers of the Group Health Centre, challenging the de-rostering as a breach of contract, a violation of the Human Rights Code, and as oppressive conduct under corporate statutes.

The court granted a representative order only for the breach of contract claim on behalf of subscribers, denied it for other claims and for non-subscribers, and refused the interlocutory injunction, finding no strong prima facie case or irreparable harm.

The plaintiff, Roger Foley, failed to comply with a prior court order requiring payment of over $100,000 in costs to the defendants by August 30, 2024.

Despite being given an opportunity to respond, the plaintiff did not dispute non-payment and failed to provide sufficient evidence of impecuniosity.

The court dismissed the action against all remaining defendants, refusing a further extension of time or to convert unpaid costs to costs in the cause, emphasizing the importance of compliance with court orders.

This decision addresses the issue of costs following the striking out of the plaintiff's claim.

The plaintiff sought to have his former lawyer personally pay costs or for no costs to be awarded.

The court dismissed the request for personal costs against the lawyer, finding his conduct did not cause unnecessary costs and did not meet the high threshold for such an order.

The court awarded partial indemnity costs to the defendants and imposed terms requiring the plaintiff to pay all outstanding costs orders (including prior ones) before being permitted to amend his claim, failing which the action would be dismissed.

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 plaintiff, a person with a severe neurodegenerative condition, brought an action against multiple defendants alleging Charter violations, public law breaches, and private law duties related to his hospital care, home care funding, and the constitutionality of the medical assistance in dying (MAID) provisions of the Criminal Code.

The defendants moved to strike the statement of claim under Rule 21.01(1)(b).

The court struck the statement of claim in its entirety, finding it failed to plead material facts, asserted causes of action unknown to law (such as a freestanding Charter right to health care), and constituted an abuse of process by collaterally attacking binding Supreme Court jurisprudence.

The action was dismissed against the federal and provincial Crown defendants without leave to amend.

Leave to amend was granted on strict terms for specific claims against the hospital, the local health integration network, and the independent living centre.

Roger Foley, the plaintiff, brought a motion under Rule 2.1.02 of the Rules of Civil Procedure to disqualify Neil Searles as counsel for the Centre for Independent Living in Toronto (CILT).

Foley alleged conflict of interest, divided loyalty, and that Searles would be a necessary witness due to a 1996 article he authored on physician-assisted suicide.

The court, on its own initiative, considered dismissing the motion as frivolous or vexatious.

The court found the motion frivolous, noting that CILT opposed the removal of its counsel, that accepting a binding Supreme Court decision (Carter) is not a basis for disqualification, and that Foley's attempt to call Searles as a witness was unlikely to be permitted at trial.

The motion was dismissed.

During a trial for damages and statutory accident benefits arising from a motor vehicle accident, the self-represented plaintiff sought to introduce a medical report for the truth of its contents without calling the authoring doctor to testify.

The defendants objected on the basis of hearsay and failure to comply with the Evidence Act and Rules of Civil Procedure.

The court ruled the report inadmissible, holding that without the opportunity for cross-examination, the hearsay content could not be admitted.

The court also provided guidance on best practices for self-represented litigants regarding expert evidence.

The appellants appealed a motion judge's decision refusing to allow them to amend their pleading to add a claim for punitive damages after the action was set down for trial.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's determination that the significant delay in seeking the amendment resulted in presumed non-compensable prejudice to the respondent.

The court affirmed that requiring a party to change its entire litigation strategy late in the proceedings constitutes non-compensable prejudice.

While the motion judge had granted leave to increase compensatory damages, the denial of leave for punitive damages was upheld due to the unexplained, lengthy delay and its impact on the respondent's defence.

The plaintiff's lawyer of record passed away, and his firm brought a motion to be removed from the record and for a charging order.

The motion was adjourned because adverse parties raised concerns about the plaintiff's capacity.

The court reviewed the legal framework for appointing a litigation guardian and ordering a capacity assessment under the Rules of Civil Procedure and the Courts of Justice Act.

The court directed the parties to consult and establish a framework to address the plaintiff's capacity before proceeding with the motion.

At a trial management conference, the court considered whether a jury trial scheduled to begin on May 24, 2022, could be completed by June 30, 2022.

Despite the cooperative efforts of counsel to pare down the estimated trial time, the court found that proceeding would create a very high risk of a mistrial due to scheduling constraints and unforeseen delays.

The court ordered the trial adjourned to a window in early 2023.

The plaintiffs sought an adjournment of a fixed 32-day jury trial, scheduled to commence on May 16, 2022, due to their intention to appeal a prior order that dismissed their request to add a punitive damages claim and denied leave for a further affidavit of documents.

The court denied the adjournment, emphasizing that the action, stemming from a 2014 incident, had been set down for trial twice and counsel had previously certified readiness.

The judge found no extenuating circumstances to justify adjourning a long-booked trial, noting the plaintiffs' delay in seeking amendments and pursuing an appeal.

The defendants brought a motion to vacate a Certificate of Pending Litigation (CPL) registered against a luxury property by the plaintiff, a construction project manager.

The plaintiff claimed damages for breach of contract and unjust enrichment, seeking a constructive trust after allegedly financing the construction out-of-pocket.

The defendants argued the CPL should be vacated because the property had been sold, it was not unique, and damages were an adequate remedy.

The court dismissed the motion, finding the plaintiff had a reasonable claim for a constructive trust and that a monetary remedy would be illusory since the defendants had relocated to Hong Kong and appeared to have no other assets in Canada.

The respondents sought to enforce a Utah default judgment against the appellant.

During discovery, the appellant refused to answer several questions, and an Associate Judge ordered him to answer them.

The appellant appealed the Associate Judge's decision, arguing the questions breached solicitor-client privilege or related to a coerced Stipulation of Fact.

The Superior Court allowed the appeal in part, striking one question that sought the content of legal advice, but upholding the orders to answer questions about the steps taken to secure legal advice, whether lawyers were paid, and which portions of the Stipulation of Fact were true, as the appellant had put these matters in issue in his pleadings.

This decision concerns the costs of a successful motion brought by the plaintiffs.

The court reviewed the parties' submissions, considering factors such as the nature and complexity of the motion, the amount claimed in the action, the defendant's conduct (including fulfilling undertakings and making concessions), and the proportionality of the requested costs.

While finding the plaintiffs wholly successful, the court determined that the quantum of costs requested was disproportionately large and applied a discount to the partial indemnity costs.

The plaintiffs brought a motion to remove the defendant's counsel, Zuber & Company LLP, alleging inappropriate direct communication with the plaintiff's treating doctors and improper requests for medical files without consent.

The court found that defence counsel's letter accompanying a summons to witness inappropriately sought production of medical files directly from the treating doctors, breaching confidentiality protocols established in Burgess v. Wu.

While the conduct was deemed inappropriate, the court, applying the high threshold for removal of counsel, determined that removal was not necessary in the interests of justice, especially since no new confidential information was disclosed.

However, due to the inappropriate conduct, the plaintiffs were awarded costs of the motion on a partial indemnity basis.

The moving parties, two commercial establishments, sought leave to appeal the dismissal of their motions for summary judgment.

The plaintiff had sustained a severe traumatic brain injury after falling down stairs at a rented chalet following a night of drinking at the moving parties' establishments.

The moving parties argued their duty of care ended when the plaintiff reached the chalet.

The court dismissed the motions for leave to appeal, finding no reason to doubt the correctness of the motion judge's decision that foreseeability of risk and the sobriety of the plaintiff's companions were issues requiring a trial.

The court determined pre-judgment interest and costs following a jury verdict in a personal injury action.

Pre-judgment interest on general damages was reduced from 14 to 10 years due to plaintiff-occasioned delays.

The applicable rate for past loss of income was confirmed at 2.8%.

Plaintiffs were awarded partial indemnity costs to December 8, 2015, and substantial indemnity costs thereafter, totaling $727,290.00.

The defendant Upright, having made a better offer than the jury verdict, was awarded partial indemnity costs of $210,000.00 from the defendant Janandee.

The plaintiffs' costs were apportioned between the defendants based on their respective liability findings (Janandee 94%, Upright 6%).

The plaintiffs moved to set aside a registrar's dismissal order for delay under Rule 37.14.

The action, arising from a 2007 slip and fall, had been dismissed after the plaintiffs failed to set it down for trial by the deadline ordered at a previous status hearing.

The Master applied the four-part Reid test.

Although the plaintiffs failed to adequately explain the delay or show inadvertence in missing the deadline, they moved promptly to set aside the order and rebutted the presumption of prejudice.

The Master found no actual prejudice to the defendants and granted the motion, allowing the action to proceed on a strict timetable.