Pat Peloso

The plaintiffs brought a motion to strike the jury notice and sever their action from a companion action arising from a 2013 motor vehicle accident.

The plaintiffs argued that the case was too complex for a jury and that delay, exacerbated by the COVID-19 pandemic, warranted a judge-alone trial.

The court dismissed the motion to strike the jury notice, finding insufficient evidence of case-specific prejudice or that an earlier trial date would be available for a judge-alone trial.

The court also dismissed the motion for severance, emphasizing the need to avoid a multiplicity of proceedings under section 138 of the Courts of Justice Act and noting common issues between the actions.

The plaintiffs brought a motion to strike the defendant's jury notice in a motor vehicle accident claim, arguing that the Covid-19 pandemic would indefinitely delay a jury trial.

The court granted leave to bring the motion, finding the pandemic constituted a substantial and unexpected change of circumstances.

However, the court dismissed the motion to strike the jury notice because the parties were not yet ready for trial.

Specifically, the defendant's psychiatric expert had not received all necessary raw data to complete his report, and a pre-trial conference remained outstanding.

The court vacated the upcoming trial dates and directed the matter to a trial management court.

The moving party sought approval of a settlement dismissing a third party claim without costs.

The court found multiple deficiencies in the motion record, including failure to properly cite the grounds for the motion, failure to include pleadings, and failure to address whether the third party defended the main action, which would trigger the requirement for court approval under Rule 7.08 due to a plaintiff being under disability.

The court also noted the draft order was deficient.

The motion was adjourned with directions to file a proper motion record.

The defendants brought a motion to compel the plaintiff to attend a defence medical examination with an orthopedic surgeon without an audio recording.

The plaintiff opposed, arguing the examination should be recorded due to the expert's alleged bias and past adverse judicial findings against him.

The court applied the test from Bellamy v. Johnson, finding the plaintiff failed to show substantial and compelling reasons to order a recording.

The court held that general allegations of bias or the fact that an expert primarily conducts defence assessments do not justify recording the examination.

The motion was granted.

The moving party insurer sought summary judgment dismissing a claim by another insurer seeking indemnity for statutory accident benefits paid to an insured injured in two separate motor vehicle accidents.

The responding insurer alleged that the moving party remained responsible for benefits arising from the earlier accident and should contribute to benefits paid following the second accident.

The motion raised issues concerning the interpretation of the Insurance Act, the Statutory Accident Benefits Schedule, the Disputes Between Insurers regulation, and limitation periods.

The court held that the evidentiary record was insufficient to determine causation between the accidents, the applicability of statutory limitation periods, and whether an equitable cause of action for indemnity existed.

Given the novel legal issues and gaps in the evidentiary record, summary judgment was inappropriate and the matter should proceed to trial.

Following dismissal of an appeal from a costs assessment arising out of a defamation action commenced under the Simplified Procedure, the court determined the appropriate costs of the appeal.

The responding party sought more than $29,000 in costs relying on an offer to settle and substantial indemnity rates.

The court emphasized the principles of proportionality and the reasonable expectations of the losing party in fixing costs, drawing on appellate authority cautioning against rigid cost formulas.

Finding the matter straightforward and the claimed fees disproportionate, the court fixed costs in line with a reasonable settlement offer previously made by the appellant.

Appeal from an assessment officer’s decision awarding costs following settlement of a defamation action commenced under the Simplified Procedure.

The appellant argued the assessment failed to properly apply proportionality and the reasonable expectations of the losing party.

The court held that the assessment officer appropriately considered the Rule 58.06(1) factors, including the significance of reputational harm and the defendant’s litigation conduct, and reasonably discounted the claimed fees.

The officer’s conclusions reflected no error in principle, and the substantial indemnity costs awarded for the assessment hearing were also upheld.