Ryan Naimark

The Receiver of a deceased personal injury lawyer's professional corporation brought a motion seeking to impose a 'Sliding Fee Structure' on new counsel who took over the deceased lawyer's client files.

The Receiver argued this was necessary to efficiently realize on the estate's interest in the files.

The court dismissed the request to impose the fee structure, finding it would inappropriately override the clients' statutory rights under the Solicitors Act to receive and assess a bill.

However, the court ordered new counsel to provide the Receiver with 'Determinable Information' about the files to assist the Receiver in rendering accounts, subject to a privilege protocol.

The plaintiffs brought an ex parte motion to approve an infant settlement and a contingency fee agreement following a fatal motor vehicle accident.

The court approved the settlement amount for the minor plaintiff but reduced the requested legal fees, finding the proposed fees disproportionate to the minor's share of the global settlement and the complexity of the case.

The court also ordered the settlement funds to be held in a trust account until the minor reaches age 25, rather than being paid into court and released at age 18.

The defendants in a motor vehicle accident claim sought an adjournment of the trial to bring a motion to consolidate the action with the plaintiff's separate defamation lawsuit against a newspaper.

The defendants argued the plaintiff was claiming psychological damages in both actions.

The court dismissed the request for an adjournment, finding the two pieces of litigation to be separate and distinct, and noting the defendants could cross-examine the plaintiff and experts on the overlapping issues without consolidating the trials.

The defendants in a defamation action sought leave to amend their statement of defence to plead limitation defences under sections 5 and 6 of the Libel and Slander Act.

The plaintiff opposed the motion, arguing that the amendment would cause actual prejudice due to the passage of time, changes to computer systems, and the unavailability of website snapshots from the date of publication.

The court granted the motion, finding that any evidentiary difficulties would prejudice the defendants rather than the plaintiff, and that the proposed defences were tenable at law.

The amendment was granted on the condition that the defendants pay the plaintiff's costs thrown away.

The plaintiff, a diabetic patient, brought a medical malpractice action against her family physician after requiring a below-knee amputation due to an undiagnosed neuropathic fracture (Charcot foot).

The plaintiff alleged the physician breached the standard of care by failing to order timely imaging or refer her to an orthopedic specialist.

The court found that the physician's treatment did not fall below the standard of care, noting that the condition was rare and not detected by other specialists who examined the plaintiff during the same period.

Although the court concluded that timely imaging would likely have saved the leg, the action was dismissed because the standard of care was not breached.

The plaintiff's motor vehicle accident action was dismissed after failing to meet the statutory threshold, despite a jury awarding $30,000 in general damages.

Both parties sought costs.

The court found that the defendant's counsel engaged in uncivil conduct, failed to cooperate on a joint document brief, delivered late expert reports, and repeatedly ignored a trial management order and court deadlines.

Although the defendant was the successful party and would normally be entitled to costs of approximately $100,000, the court exercised its discretion to deprive the defendant of costs due to counsel's misconduct.

The defendant was ordered to pay $441.13 for half the copying costs of the joint document brief.

Insurers moved for summary judgment dismissing claims against them on the basis that an automobile insurance policy had been properly terminated prior to an accident involving an uninsured motorist.

The court held that the insurer complied with the statutory requirements for delivery of a notice of cancellation under s. 12 of the Statutory Conditions – Automobile Insurance, as the notice was sent by registered mail to the insured’s correct address.

However, a genuine issue requiring trial remained regarding compliance with s. 11 governing effective termination, specifically whether the insurer’s attempted withdrawal of double the monthly premium created the payment default that triggered cancellation.

The court ordered production of banking records to determine whether sufficient funds existed to cover the agreed monthly premium and service charge.

Summary judgment was granted in part and the remaining issue was adjourned pending further evidence.