Peter James Elkins Cronyn

The plaintiffs in three related lawsuits arising from a fatal head-on automobile accident brought summary judgment motions to determine liability.

All parties agreed that liability could be determined by summary judgment but held diametrically opposed positions on who was liable.

The court found that the existence of competing expert accident reconstruction reports, particularly those based on computer simulations with unknown reliability, created genuine issues of material fact regarding causation.

The court also noted an "air of reality" to the contention that the deceased plaintiff's distracted driving might have contributed to the collision, despite a prior Highway Traffic Act conviction against one of the defendants.

Consequently, the motions for summary judgment were dismissed, as a full trial with oral testimony and cross-examination was deemed necessary to resolve the complex factual disputes and competing expert opinions.

The plaintiffs brought a motion to approve a $13,375,000 settlement in a class action against a fertility doctor who allegedly used incorrect genetic material, including his own, during artificial insemination procedures.

The court found the settlement to be fair, reasonable, and in the best interests of the class members, noting the novel legal issues and the emotional toll of continued litigation.

The court also approved class counsel's 25% contingency fee of $3,343,750, recognizing the significant risk, time investment, and successful outcome achieved.

The defendants brought a motion for an order that the same judge hear the third party proceeding as the main action, which was dismissed.

The third party sought costs of the motion.

The court found that costs should follow the event but that the $14,000 claimed was disproportionate for a procedural motion that could have been resolved at a case conference.

Costs were fixed at $5,000 on a partial indemnity scale.

The appellants appealed a motion judge's decision dismissing their limitations defence in an action brought by the respondent for improper use of confidential and proprietary information disclosed in 2002.

The respondent filed its action on September 9, 2011.

The motion judge found that the respondent's obligation to exercise due diligence was not triggered prior to April 2009, and that exposure to the appellants' affairs through a consultant's work was insufficient to constitute actual notice or trigger a duty to investigate.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding errors of fact or law, and affirmed that the respondent could not have discovered its claim until September 11, 2009, when exercising reasonable diligence.

The defendants brought motions for leave to appeal an interlocutory decision that dismissed their Rule 21 motions to strike the plaintiffs' statement of claim.

The plaintiffs, including a former RCMP member, claimed damages for harassment, assault, and sexual assault.

The defendants argued the claims were barred by section 9 of the Crown Liability and Proceedings Act because the plaintiff received a pension for PTSD.

The court refused leave to appeal, finding no conflicting case law on the principles for striking pleadings and no good reason to doubt the motion judge's conclusion that it was not plain and obvious the entire claim was barred.

The appellants, the City of Ottawa and a city bus driver, appealed a trial judgment finding them 20% liable for a fatal intersection collision.

The bus driver, travelling on a green light, collided with a vehicle that entered the intersection on a red light.

The trial judge found the bus driver negligent for speeding and momentary inattention, concluding the accident could have been avoided had he driven at the speed limit.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's articulation of the standard of care or her causation analysis.

The appeal regarding the trial judge's costs award was also dismissed.

The appellant appealed a trial judgment finding it liable for breach of contract and awarding $11 million in damages to the respondent, who had purchased the action from a bankrupt IT company.

The Court of Appeal upheld the trial judge's finding that the appellant's representative had actual authority to bind the company to the contract.

However, the Court allowed the appeal regarding damages, finding the trial judge erred by assessing damages as of the end of a five-year business plan rather than the date of the breach.

Applying a discounted cash flow analysis as of the date of breach, the Court reduced the damages award to $1.3 million.

The defendants moved to dismiss the plaintiffs' statement of claim, or in the alternative, for leave to file a statement of defence, arguing that the action was barred by section 9 of the Crown Liability and Proceedings Act (CLPA) and section 111(2) of the Pension Act.

The plaintiffs, including a former RCMP Staff Sergeant, sought damages for intentional torts, breach of contract, and Charter violations arising from alleged harassment and assault during her service, for which she had already received a disability pension for PTSD.

The court dismissed the motion to strike, finding that it was not plain and obvious that the claims were entirely barred, particularly for damages not covered by the pension, claims for events after the initial injury, and Charter claims.

The court also found that section 111(2) of the Pension Act did not require a further stay as the plaintiff was not seeking to review or re-assess her pension.

The defendants moved for summary judgment to dismiss the plaintiff's claim based on the expiration of the limitation period.

The plaintiff alleged misappropriation of software and breach of non-disclosure agreements and fiduciary duties.

The court applied the discoverability principle under the Limitations Act, 2002, finding that the plaintiff did not discover its claim until September 11, 2009, when it confirmed the defendants authored the disputed software.

Consequently, the action, commenced on September 9, 2011, was within the two-year limitation period.

The court dismissed the limitation defense, granting partial summary judgment to the plaintiff.

Secondary issues regarding discovery were adjourned or left to the trial judge.

Following a trial on liability for a motor vehicle accident where the deceased driver was found 80% responsible and the City of Ottawa and its bus driver 20% responsible, the court determined the costs payable to the successful plaintiffs.

The plaintiffs sought over $811,000 in costs and disbursements.

The court reviewed the factors under Rule 57.01, including proportionality, the complexity of the case, and the results achieved.

The court reduced the plaintiffs' claimed costs due to excessive hourly rates for students/paralegals, duplication of effort, and excessive time spent on certain stages.

The court awarded the plaintiffs $527,065.25 in fees and $143,531.25 in disbursements.

Additionally, the court granted a Sanderson Order requiring the unsuccessful defendants to pay the costs of the successful defendant insurer directly.

The plaintiffs were injured when the SUV they were passengers in ran a red light and was struck by an OC Transpo bus.

The driver of the SUV was killed and admitted to be primarily at fault.

The plaintiffs sued the bus driver and the City of Ottawa, alleging the bus driver was also negligent.

The court found that the bus driver, despite having the right of way, owed a duty of care to avoid the collision.

The court held that the bus driver breached the standard of care of a professional driver by speeding, failing to adjust his driving for the snowy and slushy road conditions, and momentary inattention.

Relying on expert accident reconstruction evidence, the court concluded that but for the bus driver's negligence, the accident could have been avoided.

Liability was apportioned 80% to the SUV driver and 20% to the bus driver.

The plaintiffs were wholly successful on a motion brought by the defendants regarding claims of privilege over certain documents and seeking the removal of the plaintiffs' counsel of record.

The plaintiffs sought full indemnity costs of $53,871.81.

The court found that while the plaintiffs were successful, they should have brought the motion to determine privilege themselves rather than forcing the defendants to do so.

The court declined to award substantial indemnity costs, finding the amount claimed disproportionate, and fixed costs at $25,000 plus HST and disbursements.

The defendants brought a motion seeking a declaration that certain inadvertently disclosed documents were subject to solicitor-client or litigation privilege, their return, and the removal of the plaintiffs' counsel of record.

The plaintiffs, former executives of the defendant organization suing for wrongful dismissal, argued that common interest privilege applied to the legal advice they received alongside the board of directors.

The court found that common interest privilege applied to the majority of the disputed communications and that privilege had been waived for others.

The motion to remove the plaintiffs' counsel was dismissed as grossly disproportionate, given that only one minor redaction was required and no prejudice was shown.

Following a 31-day trial where the plaintiff was awarded $11 million in damages, the court determined the quantum of costs payable to the plaintiff.

The parties agreed that partial indemnity was the appropriate scale.

Applying the factors under Rule 57.01(1) of the Rules of Civil Procedure, the court fixed the plaintiff's partial indemnity fees at $675,000 plus HST and disbursements at $238,000 inclusive of HST.

An investor that had acquired the rights of a bankrupt Indigenous‑owned technology company sued a software corporation for breach of contract arising from a failed strategic partnership.

The plaintiff alleged the defendant committed to invest $1.5 million and provide technological support but later withdrew, causing the company’s collapse.

The court found a binding agreement was formed through oral approval and a confirming letter, and that the defendant’s internal corporate approval issues did not negate the contract.

Alleged misrepresentations regarding finances, market size, and potential investors were rejected.

Applying a modified valuation based on projected business plans and discounting for risk, the court awarded damages for the lost business opportunity.

Following an eight‑day trial in which the plaintiff’s action was dismissed, the successful defendant sought substantial indemnity costs after an earlier settlement offer to dismiss the claim without costs.

The plaintiff argued that costs should remain on a partial indemnity scale and challenged both the proportionality of counsel time and several disbursements.

The court considered the factors under Rule 57.01, including the magnitude of the claim, the complexity of the litigation, the importance of the issues to other generators, and the relative financial positions of the parties.

The judge concluded that the amounts sought were excessive and that the unsuccessful party should not bear the full scope of the defendant’s litigation resources.

Total costs were fixed at $250,000 inclusive of HST.

A small hydroelectric power producer sought a declaration and damages concerning the interpretation of a long‑term electricity purchase contract.

The plaintiff argued that payments after the tenth year of the agreement were required to escalate annually with inflation, while the defendant maintained that the contract fixed the tenth‑year rate as a floor and permitted annual rate determinations thereafter.

The court held the contract language was clear and contained no entitlement to an automatic inflation escalator.

Claims based on estoppel arising from the treatment of other generators were rejected.

Although the limitation period did not bar claims arising within two years before the action, the plaintiff ultimately failed to establish entitlement under the contract.

The Attorney General of Canada was completely successful on a motion to stay the plaintiffs' claim and sought costs.

The court found the Attorney General's claimed costs excessive as the matter was not complex and the case law was overwhelmingly in its favour.

Costs were fixed at $8,000 on a partial indemnity basis, payable in any event of the cause rather than forthwith, due to the pending decision on whether the action is barred by section 9 of the Crown Liability and Proceedings Act.

The individual defendants who supported the motion were denied costs as they contributed little to the debate.

The appellants challenged the dismissal of their negligence claim arising from alleged tingle voltage in a barn said to have caused dairy herd production losses and the loss of a farm operation.

The Court of Appeal held that the trial judge erred in invoking the material contribution test, because the governing causation analysis was the but for test as explained in Clements, but found the error non-dispositive since causation failed even under the more lenient framework.

Deferring to the trial judge's detailed factual findings and assessment of competing expert evidence, the court upheld the conclusion that tingle voltage was not proved to be a contributing cause of the production issues on a balance of probabilities.

The appeal and cross-appeal were dismissed, with costs to the respondent.

The defendants moved to stay a civil action brought by an RCMP member alleging assault, sexual assault, harassment, and related torts arising during her service on the RCMP Musical Ride.

The moving party argued that under s. 111 of the Pension Act and s. 9 of the Crown Liability and Proceedings Act, the action must be stayed until the plaintiff applied for and exhausted the statutory pension process for disability benefits arising from the same injuries.

The plaintiff argued the statutory scheme should not apply to intentional misconduct such as assaults and sexual assaults.

The court held that the statutory language broadly captures injuries or diseases arising out of service and reflects Parliament’s intent to prevent double recovery.

Accordingly, the action was stayed pending a final determination of the plaintiff’s entitlement to a pension by the Veterans Review and Appeal Board.