Richard J. Campbell

This is Part 10 of a series of joint decisions in multi-jurisdictional class actions (Ontario and Quebec).

Class Counsel sought further revisions to the Distribution and Individual Issues Protocol (DIIP), specifically to increase the $6,000 costs cap for Track 2 claims to $12,000, and to add a clause about Rule 49 of the Rules of Civil Procedure applying to Track 2/3 claims, and to apply ordinary costs rules for contested Track 2 motions.

The court approved the latter two unopposed requests but denied the request to increase the costs cap, emphasizing proportionality and the need to simplify procedures rather than increase costs.

In a consolidated class action, Class Counsel sought partial indemnity costs for their work on a Distribution and Individual Issues Protocol (DIIP).

The court dismissed the motion, finding that the costs for DIIP development had been prepaid as part of prior counsel fee approvals.

The decision emphasized that DIIP creation is a necessary and collaborative aspect of class proceedings, not an event warranting additional 'success' costs, and clarified that prior judicial statements about future payments referred to costs already accounted for.

The defendants, an insurance company and a public adjuster, brought a motion for summary judgment to dismiss the plaintiffs' action concerning a fire insurance claim.

The plaintiffs alleged the settlement and release were unfair due to an imbalance of bargaining power and the defendants' negligence/bad faith.

The court dismissed the summary judgment motion, finding genuine issues for trial regarding the validity and clarity of the release, the professional negligence claims against the adjuster, and whether expert evidence on the standard of care was required given the alleged egregious conduct.

The court emphasized caution against granting partial summary judgment due to risks of delay, expense, and inconsistent findings.

This is an appeal from an order dismissing a motion to validate late service of a statement of claim and extend the time for service in a motor vehicle accident action.

The appellant's former counsel failed to serve the defendants within the prescribed six-month period due to inadvertence.

The motion judge refused to admit a supplementary affidavit and dismissed the motion, finding insufficient explanation for delay and prejudice to the respondents.

The Court of Appeal found that the motion judge erred in finding insufficient explanation for delay, as it was due to counsel's inadvertence.

Furthermore, the motion judge erred in the prejudice analysis by failing to consider that the respondents' insurer had notice of the accident and the appellant's involvement, which shifted the onus to the respondents to prove prejudice.

The Court of Appeal allowed the appeal, validated the late service, and extended the time for service on unserved defendants, with a term regarding pre-judgment interest.

The plaintiff brought a motion to validate service of the Statement of Claim and to extend the time to set the action down for trial.

The defendant brought a cross-motion to dismiss the action for delay, arguing prejudice due to the five-year delay between issuance and service.

The court found the plaintiff's explanation for the delay acceptable, noting the plaintiff was pursuing a WSIB claim and attempting to consolidate discoveries with companion actions.

The court also found no non-compensable prejudice to the defendant, as his counsel had been involved in companion actions arising from the same accident.

The plaintiff's motions were granted, and the defendant's motion to dismiss was dismissed.

An appeal from a motor vehicle accident trial in which the appellant, driving while impaired, collided with the respondents' vehicle, causing the death of a young child and serious injuries to family members.

Liability was admitted.

The appellant raised five grounds of appeal challenging the trial judge's determination of threshold issues under the Insurance Act, the admissibility of expert evidence, awards for loss of care, guidance and companionship, and the costs award.

The Court of Appeal dismissed all grounds of appeal, finding no bias, no error in the admission of expert evidence from a psychologist, no excessive damages awards, and no error in principle in the costs determination.

The plaintiff was injured after falling or jumping from the roof of a commercial building owned and occupied by the defendants.

The plaintiff and the individual defendant had gone to the roof to smoke, but the door locked behind them, leaving them stranded.

The defendants brought a motion for summary judgment to dismiss the action, arguing the plaintiff was solely responsible for her injuries by venturing away from the door.

The court dismissed the motion, finding that a trier of fact could conclude the defendants breached their duty of care under the Occupiers' Liability Act and that such breach was a proximate cause of the injuries, thus presenting a genuine issue requiring a trial.

The respondent was injured in a motor vehicle accident in Las Vegas, Nevada in 2005.

The dispute concerns her entitlement to benefits under the OPCF 44R Endorsement in her Ontario motor vehicle insurance policy.

At a June 30, 2016 pre-trial, both counsel agreed that Ontario law applies and signed a Rule 50.08(3) certificate confirming this.

Subsequently, the respondents' counsel learned of the Chomos decision, which held that threshold and collateral benefits questions are governed by the law of the place where the accident occurred.

At a second pre-trial on January 25, 2018, the respondents' counsel sought to withdraw the choice of law agreement.

The motion judge dismissed the appellant's cross-motion for a declaration that Ontario law applies and declared that Nevada law will apply.

The appellant appealed, arguing the parties had reached a binding litigation agreement.

The Court of Appeal dismissed the appeal, finding no binding agreement existed and that the respondents' counsel had made an inadvertent admission based on a misunderstanding of the law.

The plaintiff, injured in a motor vehicle accident, suffered chronic pain and pain-related depression, which was treated by her family doctor and a neuropsychologist.

The defendant moved for an independent psychiatric examination of the plaintiff by a specific psychiatrist, Dr. Monte Bail.

The motion was dismissed.

The court found insufficient evidence to warrant a psychiatric examination, noting the plaintiff had never been treated by a psychiatrist and her psychological condition had improved.

Granting the order would significantly delay the upcoming trial.

The court also made strong obiter comments that Dr. Bail would not have been permitted to conduct the examination due to previous judicial findings of lack of credibility and failure to adhere to expert duties under Rule 4.1.01.

The defendants moved for an order requiring the plaintiff, who resides outside Ontario, to pay security for costs.

The plaintiff opposed, alleging impecuniosity and arguing that the defendants had deprived her of access to the accident site, preventing her from assessing liability.

The court dismissed the motion, finding it premature because the plaintiff had been denied the opportunity to investigate liability.

The court also found the plaintiff to be impecunious, noting that her financial disclosure was sufficient given her age, health, and limited income, and that requiring further evidence would be disproportionate.

The plaintiff was injured when struck in the face by an unknown object while riding a roller coaster at the defendants' amusement park.

The defendants brought a motion for summary judgment to dismiss the action.

The plaintiff, who was self-represented, provided no evidence of negligence or breach of the Occupiers' Liability Act, relying only on a theory that the defendants failed to properly investigate the incident.

The court granted the motion and dismissed the action, finding no genuine issue requiring a trial as the ride was inspected and in good working order.

The defendants sought costs following a successful motion for security for costs.

The court had previously ordered the plaintiff to post security for costs and later staged payment of that amount.

On the costs issue, the defendants requested $3,500 based on partial indemnity fees and disbursements, while the plaintiff argued each party should bear their own costs or that only a nominal award should be granted.

The court considered the submissions and the governing principles under s. 131(1) of the Courts of Justice Act and r. 5.01(1) of the Rules of Civil Procedure.

The court awarded partial indemnity costs of $2,400 all-inclusive to the defendants.

Following a prior order granting security for costs to certain defendants, the court addressed how the payment should be structured.

The defendants sought payment of the full security amount in a single lump sum within 45 days, while the plaintiff proposed staged payments tied to litigation milestones.

The court accepted the plaintiff’s proposal, finding that staging the payments appropriately balanced protection of the defendants’ anticipated costs with access to justice for the plaintiff.

The order required the security for costs amount to be paid in tranches corresponding to discovery, mediation, and setting the action down for trial.

The defendants brought a motion under Rule 56.01 of the Rules of Civil Procedure seeking security for costs against a non‑resident plaintiff who resided in California in a personal injury action arising from a motor vehicle accident in Ontario.

The plaintiff argued that her claim had a strong prospect of success and relied on a litigation risk insurance policy to demonstrate the availability of funds to satisfy a potential costs award.

The court held that the plaintiff failed to provide affidavit evidence establishing impecuniosity or demonstrating that security would prevent her from pursuing the action.

The court further found that the insurance policy did not constitute a sufficient asset within Ontario accessible to the defendants for enforcement of a costs award.

As the plaintiff failed to discharge her evidentiary burden, the court ordered security for costs.