Neil Searles

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.

Multiple groups of investors and the respondents brought motions before the Ontario Securities Commission seeking to revoke Freeze Directions, allocate disgorged funds to specific investors, and facilitate the sale of frozen real property.

The respondents also sought to vary the disgorgement amount or set aside the previously approved settlement agreement.

The Commission dismissed the motions, holding that it lacks adjudicative jurisdiction to order restitution to individual investors or to vary an approved settlement agreement.

The Commission noted that the allocation of disgorged funds is an administrative function and directed Staff to apply to the Superior Court of Justice for directions on distributing the frozen funds and facilitating the sale of the real estate.

An appeal of a conviction for "Turn not in safety" contrary to section 142(1) of the Highway Traffic Act.

The appellant was charged after her vehicle was struck by a motorcycle while she was making a left turn.

The trial justice found the appellant guilty of the strict liability offence, finding that although the appellant took some precautions (signaling, checking mirrors), she failed to ensure the turn could be made safely.

The appeal court upheld the conviction, finding ample evidence to support the trial justice's conclusion that the motorcycle was visible to be seen had the appellant taken reasonable steps, and that the last look she took was while already into her turn.

The plaintiff sought to amend the statement of claim to either substitute or add the automobile insurer of the vehicle in which she was travelling when injured in a motor vehicle accident allegedly caused by an unidentified driver.

Although the claim initially named only the plaintiff’s own insurer and her son as defendants, the plaintiff had notified the proposed insurer at an early stage of a potential unidentified motorist claim and provided ongoing information regarding the claim.

The court held that the plaintiff always intended to name that insurer and that it had been on notice of the claim and therefore suffered no prejudice despite the expiry of the limitation period.

Applying Rule 5.04(2) of the Rules of Civil Procedure and s. 21(2) of the Limitations Act, 2002, the court concluded the circumstances justified amendment.

The proposed insurer was added as a defendant rather than substituted because both insurers could potentially provide coverage.

The applicants sought directions regarding the marketing and sale process for several commercial properties previously ordered to be sold following a family dispute.

Disagreements among the parties had stalled execution of the earlier order, including disputes over listing price, bidding procedures, participation of bidding owners, and selection of an environmental assessment firm.

The court approved a two‑stage bidding process, confirmed that bidding owners could not attend the opening of first‑stage bids, and approved the proposed environmental firm.

Finding that persistent family conflict had frustrated the earlier order and would likely continue to delay the sale, the court determined that an independent receiver should be appointed to supervise the marketing and sale of the properties with the assistance of a brokerage firm.

The parties were directed to return with proposals for the appointment of a receiver and the bidding process was ordered to be completed by a specified deadline.

In a personal injury action arising from a motor vehicle accident involving alleged soft tissue injuries, the defendants sought leave to conduct a second defence medical examination after previously obtaining a neurological assessment before the plaintiff produced any expert reports.

The plaintiff later served orthopaedic and physiatry reports asserting permanent impairment.

The court held that trial fairness required allowing the defence an opportunity to respond to the plaintiff’s medical evidence with an examination by a physiatrist.

The court concluded that the request was not merely an attempt to match specialties and that no change in circumstances or supporting medical affidavit was necessary where the defence had not yet had an opportunity to respond to the plaintiff’s expert evidence.

Following earlier reasons ordering the court-supervised sale of several properties after a hybrid trial, the court addressed costs.

The applicants sought partial indemnity costs against various respondents across two related applications.

The court found the applicants had substantially succeeded but determined that the record did not allow proper allocation of costs between the two proceedings.

Accordingly, the court referred the costs of both applications to an assessment officer under Rule 57.01(3.1) of the Rules of Civil Procedure, with directions regarding which respondents could be liable and limiting recovery to litigation-related expenses.

The applicant, a security guard of Jewish and Israeli background, alleged that his employment was terminated and he was harassed by the respondents because of his ethnic origin and place of origin.

He also alleged reprisal.

The Tribunal found that the applicant's loss of assignments was due to his own misconduct and client complaints, not discriminatory factors.

The Tribunal also found insufficient evidence to support the allegations of workplace harassment and reprisal.

The application was dismissed.

The defendant retailer appealed a master's order refusing further inspection and testing of ski bindings that were alleged to have malfunctioned and caused a skiing accident.

The master had concluded that the prejudicial effect of destructive testing outweighed its probative value and that direct expert evidence was required to justify the testing.

The court held that the master erred in law by requiring direct expert evidence and by rejecting admissible hearsay evidence permitted on motions under the Rules of Civil Procedure.

The master also misapprehended the evidentiary record when assessing the qualifications of the proposed technician and the technical assertions contained in the affidavits.

Applying the correct Rule 32.01 test, the court found a reasonable possibility that further testing could reveal useful evidence and that its probative value outweighed the potential prejudice.

The appeal was allowed and testing of the binding was permitted.

The plaintiffs brought a motion under s. 21(5) of the Courts of Justice Act to review an order of a single judge of the Divisional Court that required them to pay $20,000 as security for costs.

The motion was brought well past the four-day time limit prescribed by Rule 61.16(6) of the Rules of Civil Procedure.

The Divisional Court declined to extend the time for the motion, noting the plaintiffs' repeated failure to meet deadlines, the lack of evidence explaining the delay, and the prejudice to the defendant.

The motion was dismissed with costs.

The appellant appealed a summary judgment granted in favour of the respondents.

The Court of Appeal found no error, noting there was no legal relationship between the appellant and the respondent contractor to support a claim.

Furthermore, the respondent municipality was statutorily authorized to add the contractor's bill to the appellant's tax bill, and the appellant failed to provide more than a bald statement to challenge the amount.

The appeal was dismissed.

The appellants appealed an order striking out their statement of claim without leave to amend.

The claim alleged conspiracy to injure and abuse of process by the police and government defendants in relation to an investigation targeting the adult entertainment industry.

The Court of Appeal allowed the appeal, finding the motion judge took an overly technical approach and that the material facts pleaded were reasonably capable of supporting the causes of action.

The appellant landlord appealed a decision of the Ontario Rental Housing Tribunal which held that the landlord substantially interfered with the tenants' reasonable enjoyment by changing secondary locks installed by the tenants.

The Divisional Court allowed the appeal, finding that the Tribunal erred in focusing on the ownership of the locks rather than whether the landlord had consented to the alteration of the locking system under s. 23 of the Tenant Protection Act.

The matter was remitted to the Tribunal to determine the issue of consent for each individual tenancy.