Olivier Guillaume

On panel review under s. 7(5) CJA, the appellant challenged dismissal of a motion to extend time to perfect an appeal.

The panel found justice required an extension because perfection materials had been tendered before dismissal notice and defects were largely technical with no demonstrated prejudice.

The review motion was granted and timelines reset.

The appellants appealed an order declaring them vexatious litigants under s. 140 of the Courts of Justice Act.

The application judge found the respondent had standing and applied the Lang Michener test, noting the appellants' history of meritless litigation against a former client who is a party under a disability.

The Court of Appeal found no reversible error and dismissed the appeal, confirming the vexatious litigant order applies to the appellants in their personal capacity.

This decision concerns the interpretation and distribution of proceeds from a Legal Expense Insurance (LEI) policy following the unsuccessful outcome of a personal injury trial.

The court considered whether the applicant (Spencer and Elite Insurance Company) or the respondent (Belton) was entitled to the policy funds, and whether the funds should be shared pro rata between costs and disbursements.

The court held that the policy funds were to be paid to the applicants to offset their costs, as the law firm (MHA) had abandoned its claim for disbursements, and that Belton was not a beneficiary entitled to direct the use of the funds.

The applicant, Jerzy Szot, sought an order under section 140 of the Courts of Justice Act declaring the respondents, Peter B. Cozzi and his professional corporation, to be vexatious litigants.

The application arose from a lengthy and complex litigation history involving Mr. Cozzi’s repeated attempts to access insurance proceeds and fees in relation to a former client, Mr. Nguyen, a party under disability.

The court found that Mr. Cozzi’s conduct, including relitigating settled issues, failing to pay costs orders, and acting against a vulnerable party, was vexatious and an abuse of process.

The court granted the order, prohibiting the respondents from instituting or continuing proceedings without leave.

The defendant brought a motion seeking an order that the plaintiffs disclose and produce information regarding an adverse costs insurance policy held by their law firm, which could satisfy a costs judgment.

The plaintiffs argued the policy was not disclosable under the Rules of Civil Procedure and was protected by privilege.

The court granted the defendant's motion, ruling that Rules 30.02(3) and 31.06(4) require disclosure of such policies regardless of who holds them, as they may be liable to satisfy a judgment.

The court found prior conflicting decisions unpersuasive and ordered specific disclosure, reserving on the issue of privilege for later determination if the parties could not agree.

The applicants sought an order compelling Martin & Hillyer Associates to produce an unredacted adverse costs insurance policy.

Martin & Hillyer had provided a partially redacted copy, claiming privilege and confidentiality over certain portions.

The court found that the redacted portions were neither privileged nor confidential, as the policy contained generic wording common to such contracts and did not include solicitor-client communications or litigation strategy.

The court emphasized that the entire policy was relevant for proper contractual interpretation.

The application for production was granted.

The applicants brought a motion for leave to appeal the decision of David L. Edwards J. dated December 15, 2021.

The Divisional Court allowed the motion for leave to appeal.

Costs of the motion were fixed at $5,000, to be determined by the panel hearing the appeal.

The defendant in a personal injury action brought a motion to stay an order striking out the parties' jury notices pending her appeal.

The trial was scheduled to proceed before a judge alone due to COVID-19 pandemic delays affecting civil jury trials.

Applying the RJR-MacDonald test, the motion judge found that the appeal lacked merit as the order was likely interlocutory, the defendant would not suffer irreparable harm, and the balance of convenience overwhelmingly favoured proceeding with the long-delayed trial.

The motion for a stay was dismissed.

The plaintiff brought a motion to strike the defendant's civil jury notice, arguing that the COVID-19 pandemic would cause a delay of 12 to 18 months if the matter proceeded before a jury.

The defendant opposed the motion, advocating for a 'wait and see' approach.

The court granted the motion, finding that the delay caused by the pandemic outweighed the defendant's right to a jury trial, and that justice would be better served by allowing the 10-year-old action to proceed more expeditiously before a judge alone.

The Stevens defendants brought a motion seeking leave to compel the plaintiff, Emanuel Ismail, to undergo an independent psychiatric examination.

The plaintiff had previously submitted a psychologist's report and initially agreed to a psychiatric assessment but later refused, citing concerns about location, number of visits, and the necessity of a psychiatrist to respond to a psychologist.

The court granted leave for the motion and ordered the plaintiff to attend the psychiatric examination, emphasizing the systemic issue of late expert reports and the need for trial fairness.

The court found that a psychiatric assessment was necessary given the plaintiff's use of anti-depressant medication and the claim for future care costs related to it, distinguishing this case from others where such examinations were deemed unnecessary.

The defendant, Coachman Insurance Company, brought a motion to amend its statement of defence and, in the alternative, for leave to withdraw alleged admissions concerning the involvement of an unidentified motorist.

The plaintiff, Margret Kabutangana, opposed the amendments, arguing they constituted a withdrawal of admissions.

The court first granted the plaintiff leave to file additional affidavit evidence.

On the main motion, the court determined that the defendant's original pleading did not contain unambiguous and deliberate admissions, thus Rule 51.05 (withdrawal of admissions) was not applicable.

The court then granted the defendant leave to amend its statement of defence under Rule 26, finding no uncompensable prejudice to the plaintiff, especially given the plaintiff's prior knowledge of the defendant's position and statutory obligations regarding corroborating evidence for damages exceeding $200,000.

The defendant in a motor vehicle accident claim brought a motion seeking production of the plaintiff's Children's Aid Society (CAS) records, arguing they were relevant to the plaintiff's claim for psychological injuries.

The court found that because the action had already been set down for trial, leave was required under Rule 48.04, which the defendant failed to justify as there was no substantial or unexpected change in circumstances.

Furthermore, the court held that the CAS file was not relevant under Rule 30.10, as it contained no psychological or medical records, and ordering its production would be a disproportionate invasion of privacy amounting to a fishing expedition.

The motion was dismissed.

The plaintiffs sought leave to appeal an interlocutory order requiring the injured plaintiff to attend a further defence medical examination with an addiction psychiatrist in a motor vehicle personal injury action.

The motions judge had granted the defendant’s request for the additional examination on the basis that the plaintiff’s marijuana use and addiction issues were central to the litigation and that expert evidence from a specialist would assist the court.

On the leave motion, the court considered Rule 62.02(4) of the Rules of Civil Procedure and whether a conflicting decision justified granting leave.

The court found that the broad discretionary approach taken by the motions judge conflicted with the narrower approach articulated in prior authority governing further defence medical examinations.

Leave to appeal to the Divisional Court was therefore granted.

The appellant appealed an order of the Superior Court of Justice that struck a jury notice and ordered security for costs.

The respondents brought motions to quash the appeal on the basis that the order was interlocutory, not final, and therefore the Court of Appeal lacked jurisdiction.

The Court of Appeal agreed, holding that while the right to a jury trial is a substantive right, an order striking a jury notice is collateral and does not determine the substantive issues in dispute.

The security for costs order was also held to be procedural and interlocutory.

The motions to quash the appeals were granted, with the Court noting that the delay caused by appealing to the wrong court should not be held against the appellant if he seeks leave to appeal to the Divisional Court.