P.D. Lauwers

The plaintiff brought motions to set aside administrative dismissals in three related actions for unpaid invoices.

The actions were dismissed for delay after the plaintiff's former counsel failed to take steps to advance the litigation or respond to status notices.

Applying the Reid factors, the court found that while the plaintiff did not intend to abandon the actions and the missed deadlines were due to counsel's inadvertence, the delay in bringing the motions to set aside the dismissals (up to 31 months) was inordinate.

The court concluded that the interest in finality must trump the plaintiff's plea for an indulgence, and dismissed the motions with costs.

Following a trial decision awarding equitable compensation to the plaintiff, the parties disputed the calculation of damages.

The court resolved issues regarding the proportionality of property taxes, mortgage payments, and rent receipts to be deducted from the plaintiff's award.

The court also determined the appropriate method for calculating pre-judgment interest under the Courts of Justice Act, rejecting both parties' overly complicated approaches.

Judgment was granted in favour of the plaintiff for $4,976,925.32.

The plaintiff, an assistant store manager, was terminated for just cause after failing to prevent a workplace safety violation where a wheelchair-bound employee was lifted to a second floor using an order picker forklift.

The court applied the McKinley contextual approach and found that while the plaintiff's failure to stop the lift was serious misconduct, it did not strike at the heart of the employment relationship to justify summary dismissal.

The court awarded the plaintiff 10 months' salary in lieu of notice, but declined to award aggravated or moral damages.

The representative plaintiff brought a motion for approval of a settlement agreement in a class action arising from the loss of an unencrypted USB key containing the personal information of over 83,000 individuals who received H1N1 vaccines.

The proposed settlement established a claims process for class members who suffered economic harm, with a claim period ending in August 2016, but provided no direct cash payments for anxiety or distress.

Despite objections from some class members regarding the lack of immediate compensation and the length of the claims period, the court approved the settlement as fair and reasonable.

The court noted that the risk of identity theft had largely dissipated over time, making the prospects of success at trial poor, and also approved class counsel fees of $500,000 plus a percentage of future claims.

The applicant sought to exclude a loaded handgun seized during the execution of a search warrant at his residence, alleging multiple Charter breaches under sections 8 and 10(b).

The court found that while the police breached the applicant's right to counsel by delaying access for 4.5 hours, and overstepped the warrant by seizing excluded items and searching a cell phone without a warrant, the telewarrant itself was validly issued and executed.

Applying the Grant framework, the court concluded that the breaches were at the less serious end of the continuum, did not produce the firearm, and that society's interest in adjudicating serious gun charges on their merits outweighed the impact of the breaches.

The application to exclude the evidence was dismissed.

During a trial regarding a schoolyard assault that allegedly caused the rupture of an arteriovenous malformation (AVM) in the plaintiff's brain, the plaintiffs moved to exclude an addendum to the defendants' neurosurgical expert report.

The plaintiffs argued the addendum, which contained statistics on the annual risk of an AVM bleeding, constituted a new 'crumbling skull' defence related to damages that was not properly pleaded or disclosed.

The court dismissed the motion, finding that the risk statistic was already patent in the expert's original report and had been accepted by the plaintiffs' own expert.

The court held that a medical fact relevant to causation for liability is equally relevant to the assessment of damages, and its use did not open a new medical field.

The parties sought a determination of custody, access, and child support for their 6-year-old child.

The applicant mother sought to maintain the status quo access schedule, while the respondent father sought a week-about shared parenting arrangement.

The court ordered joint custody with primary residence to the mother, but increased the father's access time, finding that the father's poor conflict management skills and impulsive behaviour made an immediate week-about arrangement inappropriate.

For child support, the court imputed the self-employed father's income at $100,000, ordered $7,140 in arrears, and set ongoing support at $775 per month, reflecting that the new access schedule crossed the 40 percent shared parenting threshold.

In an ongoing estate litigation spanning over 20 years, the trustees of the defendant estate became deadlocked.

One trustee refused to approve a settlement or the payment of professional fees, asserting his own interests as a beneficiary and threatening litigation against his co-trustees.

The co-trustees moved to remove him as a trustee and for court approval of estate expenses paid from property sale proceeds.

The court granted the motion to remove the dissenting trustee, finding he was no longer acting in the interests of the estate.

The court also exercised its inherent jurisdiction to break the deadlock and approve the payment of reasonable estate expenses, without prejudice to the removed trustee's right to challenge the payments at a future passing of accounts.

The Litigation Administrator in a class action sought court approval for its accounts totaling $65,455.25.

The defendants objected, arguing the fees significantly exceeded the initial estimate of $21,500.00.

The court applied the principles for passing a receiver's accounts and found the work was necessary, well done, and the hourly rates were known in advance.

The court approved the accounts up to the end of December 2011, noting that changes in the notice process increased the complexity and expense of the administrator's work.

The applicant applied for a stay of proceedings under section 24 of the Charter, arguing his right to be tried within a reasonable time under section 11(b) was infringed.

The total delay from the charge to the anticipated trial date was approximately 28 months.

The court analyzed the delay using the Morin framework, attributing portions to inherent time, Crown delay, and institutional delay.

The court found the total attributable delay was modestly above the guidelines for a two-stage process.

However, balancing the delay against the lack of significant prejudice to the applicant and the seriousness of the firearms charges, the court dismissed the application.

Following an unsuccessful motion by the third party, the defendants sought substantial indemnity costs, arguing the motion was hopeless.

The court rejected the claim for substantial indemnity costs, finding the third party was entitled to pursue the motion.

Applying principles of reasonableness and proportionality, the court awarded the defendants partial indemnity costs fixed at $13,000 plus HST and disbursements.