Nicholas Mester

Case conference endorsement in a civil action that had been transferred from Ottawa to Toronto on consent.

The defendants sought to vacate the case conference following the transfer order, arguing the Ottawa court lacked authority to make further decisions.

The court declined to vacate, finding nothing in the transfer order or the Rules prevented it from finalizing pending issues to ensure an orderly transition.

The court directed the parties to proceed to examinations for discovery rather than pursue further production motions, reasoning that outstanding production issues could be canvassed under oath during examinations and a timetable was established on consent.

The plaintiffs, Steven and Carolyn Nadeau, brought an action for damages after Steven Nadeau was injured by an automatic garage door.

They sued the building owner (Ontario), property manager (CBRE), door installer (Wilcox), garage manager (SP Plus), and maintenance contractor (Haws).

Wilcox, SP Plus, and Haws each brought motions for summary judgment to dismiss the action against them.

The court granted Wilcox's motion, finding no duty of care owed to the plaintiffs and no basis for cross-claims, deeming it a rare case suitable for partial summary judgment.

The motions brought by SP Plus and Haws were dismissed, as genuine issues requiring a trial remained regarding their respective duties of care and, for SP Plus, ambiguities in contractual indemnification clauses.

The plaintiff suffered injuries at a pub when another patron, allegedly intoxicated, fell on him.

The plaintiff sued the pub operators and the landlord, 2320152 Ontario Inc. The landlord brought a motion for summary judgment, arguing it was not an 'occupier' under the Occupiers’ Liability Act.

The court granted summary judgment, finding that the landlord, operating under a 'completely carefree net lease' with limited involvement in the pub's operation, did not meet the definition of an occupier.

The action against the landlord was dismissed.

The Third Parties moved for summary judgment to dismiss claims against them arising from a motor vehicle accident.

The Defendant, Samra, brought a cross-motion to amend her Third Party Claim to allege the Plaintiff, Juneja, was the driver.

The court found no genuine issue for trial regarding the Third Parties' liability, concluding Samra was solely responsible for a precipitous left turn.

The summary judgment motion was granted, dismissing the Third Party Claim, and Samra's cross-motion was dismissed as moot.

The defendant brought a motion for leave under Rule 48.04 to compel the plaintiff to re-attend for a further examination for discovery and to permit examination on all events since the last discovery.

The action arose from a motor vehicle accident in 2005, with discovery in 2011 and the action set down for trial in 2015.

The court found the evidentiary basis for the motion, an affidavit by an articling student, problematic due to reliance on hearsay regarding the plaintiff's alleged employment change.

The defendant failed to demonstrate a "substantial or unexpected change in circumstances" or that refusing leave would be "manifestly unjust," as required by Rule 48.04(1).

The motion was dismissed, with the court also noting deficiencies in the motion record, including the absence of tax returns and discovery undertakings.

Following a jury award for general damages and future chiropractic care, the court addressed several post-trial issues.

These included the applicable statutory deductible, the rate of prejudgment interest, whether future chiropractic care costs should be deducted from the plaintiff's accident benefits settlement, a request for a remedial penalty against the defendant insurer for its conduct during mediation, and the final costs award.

The court determined that the $30,000 deductible applied (as the jury award predated the statutory amendment), prejudgment interest was 5% per annum (as it is a substantive matter not to be applied retrospectively), and future chiropractic care was not deductible from accident benefits.

The court declined to impose a remedial penalty, finding the insurer's mediation participation meaningful despite its aggressive stance.

Ultimately, the plaintiff was awarded costs of $106,906.90.

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.

Following a jury trial in a motor vehicle personal injury action where the plaintiff recovered no damages and the action was dismissed, the court determined the defendants’ entitlement to costs.

The defendants sought significant costs awards, including substantial indemnity costs based on an unaccepted settlement offer.

The court held that Rule 49.10 did not apply because the plaintiff obtained no judgment.

Applying s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court confirmed that successful parties are generally entitled to costs but emphasized that awards must be fair and reasonable.

The requested amounts were found excessive, and the court fixed reduced partial indemnity costs payable by the plaintiff to each defendant.

The plaintiff's motor vehicle accident action was dismissed after failing to meet the statutory threshold, despite a jury awarding $30,000 in general damages.

Both parties sought costs.

The court found that the defendant's counsel engaged in uncivil conduct, failed to cooperate on a joint document brief, delivered late expert reports, and repeatedly ignored a trial management order and court deadlines.

Although the defendant was the successful party and would normally be entitled to costs of approximately $100,000, the court exercised its discretion to deprive the defendant of costs due to counsel's misconduct.

The defendant was ordered to pay $441.13 for half the copying costs of the joint document brief.

The court issued a consent order setting the timetable for the parties to deliver their costs submissions.