Richard A. Levin

The appellant, injured in a prisoner transport van, sued for negligence alleging design deficiencies.

After settling with the Province, the appellant pursued the driver and the City of Toronto, primarily seeking punitive damages for alleged callous disregard for prisoner safety.

The trial judge dismissed the claim, finding no conduct warranting punitive damages.

The Court of Appeal upheld the trial judge's decision, finding no error in the assessment of the punitive damages claim or the factual findings, and dismissed the appeal with costs.

The defendant brought a motion for summary judgment to dismiss the claims against him arising from a three-way motor vehicle accident.

The defendant brought the motion before submitting to discovery and relied solely on a lawyer's double-hearsay affidavit rather than providing his own direct evidence.

The court dismissed the motion, finding that the record was insufficiently developed to permit a fair and just determination of the issues on the merits, and drew an adverse inference from the defendant's failure to provide his own evidence.

This endorsement addresses the costs of a summary judgment motion where the plaintiffs were wholly successful.

The court awarded the plaintiffs partial indemnity costs of $7,166.78, all-inclusive, payable forthwith by the moving party defendants, Subramaniam Jeyakumar and Financialinx Corporation.

The decision considered the reasonableness and proportionality of the costs, as well as the factors set forth in Rule 57.01 of the Rules of Civil Procedure.

The moving defendants, Subramaniam Jeyakumar and Financialinx Corporation, sought summary judgment to dismiss the action and crossclaims against them, arguing no genuine issue for trial existed regarding their liability in a motor vehicle accident.

The plaintiffs opposed, citing conflicting evidence on liability and damages, and the co-defendant Jamie Marston's admission of only 1% liability.

The court also addressed whether leave was required to bring the motion under Rule 48.04.

The motion judge found that no consent was given to place the action on a trial list, thus no leave was required.

Alternatively, if leave was required, it was granted due to a substantial and unexpected change in circumstances (Marston's 1% liability admission).

Ultimately, the court dismissed the summary judgment motion, finding genuine issues requiring a trial, particularly regarding the allocation of liability between the co-defendants, and that summary judgment would not be a proportionate, expeditious, or less expensive means to achieve a just result.

The defendants brought a motion under Rule 19.03(1) of the Rules of Civil Procedure to set aside a registrar’s noting of default entered at the plaintiff’s request in a motor vehicle personal injury action.

The court applied the factors set out in Bardmore, including the parties’ conduct, length and reasons for delay, complexity and value of the claim, and potential prejudice.

Although the defendants’ insurer delayed retaining counsel and delivering a defence, the court found the three‑month delay was not excessive and there was no evidence of non‑compensable prejudice to the plaintiff.

The court therefore exercised its discretion to set aside the noting in default on terms requiring prompt litigation steps.

Despite their success, the defendants were ordered to pay the plaintiff’s motion costs as the relief constituted an indulgence.

Following settlement negotiations in a personal injury action arising from a motor vehicle accident, the parties sought a judicial determination of whether an earlier Rule 49 offer to settle remained open for acceptance after the defendants delivered a subsequent “revised” offer.

The plaintiffs purported to accept the original offer after the revised offer clarified the allocation of damages and limited prejudgment interest to certain heads of damages.

The court held that the revised offer constituted a new offer that implicitly withdrew the earlier offer.

Even if the original offer had remained open, the plaintiffs could not reasonably rely on its literal wording because they knew the revised terms limited the interest calculation.

The court concluded that the original offer was not open for acceptance when the plaintiffs attempted to accept it.