Sheila Colleen Handler

The defendant sought leave to appeal to the Divisional Court from an order dismissing a motion for a defence neuropsychological examination in a motor vehicle accident action.

The underlying motion had been brought after the action was set down for trial and after several other defence medical examinations had already been conducted.

The court considered the test for leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure.

While the proposed appeal raised arguable issues regarding the need for leave after an action is placed on a trial list and whether an additional medical examination should have been permitted, the court found the issues lacked general importance and largely reflected litigation strategy and delay by the defendant.

Leave to appeal was therefore refused.

The plaintiff sought leave to file a statement of claim after failing to do so within the 30‑day period following issuance of a notice of action.

The underlying action alleged damages for wrongful arrest, prosecution, and incarceration arising from charges that resulted in an acquittal.

The court held that issuing the notice of action within the limitation period tolled the limitation period and that the failure to file the statement of claim in time was an irregularity caused by solicitor inadvertence.

Applying the test from Nugent v. Cook, the court found the delay resulted from inadvertence and caused no prejudice to the defendant.

Leave was granted to issue the statement of claim and extend time for service.

A teenage plaintiff became paraplegic after falling from a tree in a municipal park.

The plaintiffs alleged the municipality breached its duties under the Occupier’s Liability Act by failing to monitor the park, trim or remove the tree, or prohibit tree climbing.

The court held that the municipality’s inspection and maintenance practices were reasonable and that the risk of injury from climbing the tree was not reasonably foreseeable given the absence of prior complaints or incidents.

The court rejected arguments that the municipality should have altered or removed the tree or enacted prohibitions on climbing.

The action was dismissed, although the court stated that if liability had been established the plaintiff’s contributory negligence would have been assessed at 67 percent.

The appellant appealed a motion judge's finding that two individuals were not covered under renewal insurance policies from 2009 through 2011.

The Court of Appeal dismissed the appeal, agreeing that the individuals no longer met the definition of insured because they had been terminated as foster parents in 2008.

Furthermore, under the claims-made policy, no proceedings were commenced against them after the effective date of the renewal policies.

The plaintiffs sued various provincial and municipal officials for negligent investigation, malfeasance in public office, and Charter breaches after the plaintiff Hilary Payne was charged with arson by negligence following a fire at a student rental property.

The defendants brought motions for summary judgment to dismiss the claims.

The court granted summary judgment dismissing the claims against one defendant (an engineer-in-training) and the Charter claims under ss. 8, 11(d), and 11(g).

However, the court dismissed the balance of the summary judgment motions, finding that the novel issues of duty of care, standard of care, causation, and statutory immunity required a full trial to resolve conflicting evidence and assess credibility.

Two applications sought interpretation of an insurance policy issued to a Children’s Aid Society concerning legal expense coverage for foster parents charged with Criminal Code offences.

The applicants argued that the $500,000 aggregate limit applied per policy year, allowing stacking across successive policy periods in which defence costs were incurred.

The insurer argued that the legal expense rider was a claims‑made policy triggered only in the policy period when the criminal proceedings commenced and that coverage was limited to a single $500,000 aggregate limit.

The court held that the wording of the rider allowed aggregate limits to accumulate across policy periods but concluded that the foster parents ceased to qualify as “insureds” after their termination.

As a result, recovery remained limited to the $500,000 aggregate available under the 2008–2009 policy.

The plaintiffs brought a motion under Rule 30.02(2) of the Rules of Civil Procedure seeking production of a statement prepared by a property manager shortly after a motor vehicle accident on a commercial parking lot.

The statement had been created following the accident after the property manager contacted the insurer and an adjuster and anticipated litigation.

The court held that litigation privilege attached because the dominant purpose of the investigation and statement was to prepare for potential litigation and assist the employer’s defence.

The court further held that privilege was not waived when the witness reviewed the statement prior to her examination for discovery.

The motion for production was therefore dismissed.

The appellants sued a police detective and others for misfeasance in public office, relying in their statement of claim on testimony the detective gave at a coroner's inquest.

The motions judge struck the paragraphs referencing the inquest testimony under Rule 25.11, finding the testimony protected by s. 42(1) of the Coroners Act.

The Court of Appeal upheld the striking of paragraphs that explicitly relied on the testimony to establish civil liability, but allowed the appeal regarding one paragraph that did not expressly refer to the testimony, finding it was not a 'clearest case' for striking at the pleadings stage.