Thomas P. Connolly

In a personal injury action arising from a motor vehicle accident, the parties brought motions and cross-motions to resolve outstanding undertakings, refusals, and a proposed pleading amendment.

The court denied the defendant's request for the plaintiff's CAS and medical records, noting the plaintiff limited her Family Law Act claim.

The court ordered the defendant to produce MTO records and witness contact information but denied the request for the deceased defendant's medical records.

Finally, the court granted the defendant Estate leave to amend its statement of defence to plead plene administravit, protecting the estate trustees from personal liability, without requiring further discovery.

The moving party, the Corporation of the County of Renfrew, brought a motion for leave to appeal an order of MacLeod R.S.J. The Divisional Court dismissed the motion for leave to appeal and awarded costs of $3,000 to the responding parties.

The plaintiff moved to amend the statement of claim, and the defendant insurer moved under Rule 21 to strike out a portion of the claim seeking declarations regarding insurance coverage.

The defendant argued that adjudicating coverage issues in the main action was premature and contrary to the Insurance Act.

Relying on a recent decision of the same court, the judge granted the plaintiff's motion to amend and dismissed the defendant's motion to strike.

The defendant insurer brought two motions: one to be added as a statutory third party under s. 258(14) of the Insurance Act, and another to strike paragraphs in the plaintiff's Amended Statement of Claim seeking declaratory relief regarding the validity of the insurance policy.

The court granted the motion to be added as a statutory third party on consent.

The court dismissed the motion to strike, finding that the plaintiff had a tenable claim for declaratory relief regarding the enforceability of the policy, even without a direct cause of action against the insurer at this stage.

The plaintiff sought costs of $28,587.29 on a partial indemnity scale following a motion regarding a defence medical examination where success was divided but the plaintiff achieved greater success.

The defendants argued that no costs should be awarded or that they should follow the event, contending the hours claimed were excessive for a two-hour motion.

The court agreed the hours claimed were excessive and fixed costs at $6,500 payable by the defendants to the plaintiff.

The defendants brought a motion to compel the plaintiff to attend a defence medical examination shortly before a scheduled medical negligence trial.

The plaintiff opposed and brought a cross-motion to strike portions of the defendants' motion record, alleging a breach of settlement privilege.

The court found that the defendants did not require leave under Rule 48.04 to bring the motion, as they had not consented to the action being placed on a trial list.

However, the court dismissed the motion for a medical examination, finding it would prejudice the plaintiff given the impending trial date.

The cross-motion was also dismissed, as the impugned communications did not contain offers or compromises protected by settlement privilege.

The appellants, Ronald Patterson and his family, appealed the dismissal of their motions to strike the jury and declare a mistrial in a motor vehicle personal injury action.

During jury deliberations, a juror accessed extrinsic information (Fault Determination Rules) online and shared it.

The trial judge conducted an inquiry, issued a correcting charge, and dismissed the motions.

The Court of Appeal dismissed the appeal, affirming that the trial judge properly inquired into the extrinsic information and effectively addressed its prejudicial effect with a correcting charge, which the jury was presumed to have followed.

The court found no misapprehension of evidence or patent unreasonableness in the trial judge's decision.

This endorsement addresses two motions in a personal injury action arising from a 2009 motor vehicle accident.

The plaintiffs, who commenced their action eight years post-accident, claim damages against the County of Renfrew for alleged road maintenance failures.

The County brought an omnibus motion, including for summary judgment against municipal employees and for documentary production related to the plaintiffs' limitation defence.

The plaintiffs brought a cross-motion regarding undertakings and refusals.

The court granted summary judgment against the municipal employees on consent, lifted the deemed undertaking rule for previous litigation files, and ordered production of those files subject to privilege.

The court also provided guidance on the form of affidavits of documents and ordered answers to some discovery questions while denying others.

This addendum to a ruling addresses the approval of a contingency fee retainer agreement for the main action in a personal injury litigation.

The court re-evaluated whether "exceptional circumstances" existed in 2011, when the fee agreement was initially made, to justify a contingency fee of 25% plus costs recovered from the opposing party, as per s. 28.1(8) of the Solicitors Act.

The decision considers the complexity of the claim, the substantial financial risk assumed by counsel, the significance of the litigation to the clients, and the resources expended.

The court ultimately approved the agreement for the main action, finding that exceptional circumstances were present.

This application concerned the approval of a contingency fee retainer agreement (CFRA) for personal injury litigation involving a plaintiff under a disability.

The court approved an overall 25% contingency fee for the main action and third-party claim, to be split 15% for Connolly Obagi LLP and 10% for previous counsel, Christopher Moore.

However, the court dismissed Connolly Obagi LLP's request to receive costs recovered from the opposing party, finding no "exceptional circumstances" to deviate from the rule that costs go to the client.

The court also provided directions for the continuation of settlement approval motions and the finalization of solicitor-client accounts.

During jury deliberations in a motor vehicle personal injury trial, the jury foreman conducted internet research and found the Fault Determination Rules under the Insurance Act.

The jury asked a question about the regulation, prompting the trial judge to give a correcting charge instructing them to disregard it.

The jury subsequently returned a verdict finding the plaintiff 73% contributorily negligent.

The plaintiffs moved for a mistrial, arguing the jury was contaminated and failed to follow the correcting charge.

The court dismissed the motion, finding the correcting charge was sufficient, the jury's prompt disclosure of the research indicated a willingness to follow instructions, and the verdict was supported by the evidence.

During the second week of a medical malpractice trial, the defendant physician sought leave to bring a motion for summary judgment to dismiss the claim against him.

The court dismissed the motion for leave, finding that the defendant failed to provide a satisfactory explanation for the delay, the motion would unduly delay the ongoing trial, and there was insufficient evidence that a summary judgment motion would be a proportionate or cost-effective alternative to continuing the trial.

The plaintiff in a medical malpractice action brought a motion at trial to prohibit the defendant physicians from advancing theories of failure to mitigate and break in the chain of causation, arguing lack of prior notice.

The plaintiff contended that the defendants failed to update an undertaking given at discovery regarding mitigation.

The court dismissed the motion, finding that the plaintiff had adequate notice of the defence theories through the statement of defence, an expert report, and the defendants' pre-trial conference memorandum.

The court held that it would be fundamentally unfair to preclude the defendants from relying on these theories and that the trial remained fair to the plaintiff.

During a medical malpractice trial, the plaintiff objected to the defendants' opening statement, arguing lack of notice regarding certain defences.

The defendants brought a cross-motion seeking leave to file an excerpt from their pre-trial conference memorandum to prove notice was given.

The court considered the prohibition on communicating pre-trial conference statements under Rule 50.09 of the Rules of Civil Procedure.

Applying Rule 2.03, the court found it was in the interests of justice to dispense with the prohibition and permit the defendants to file the excerpt solely to address the issue of notice.

In this amended preliminary costs decision arising from a property title and access dispute, the plaintiffs sought a substantial costs award after being largely successful at trial and defeating most of the defendant's counterclaim.

The court held that the successful litigant principle, proportionality, the complexity and importance of the issues, and the limited impact of withdrawn alternative arguments supported an award of costs.

The court rejected the responding party's position that no costs should be awarded and fixed the appropriate scale as partial indemnity.

The quantum was deferred to an assessment after production of dockets and proof of disputed disbursements.

The plaintiffs sought declarations of ownership by adverse possession and an easement by necessity over portions of land surrounding their waterfront property, which they claimed were necessary for access and the location of their septic system.

The defendant, who owned the surrounding lands, counterclaimed for the removal of the plaintiffs' structures.

The court found that the plaintiffs had established adverse possession over the land containing their septic system due to a mutual mistake about the property boundaries.

The court also granted the plaintiffs an easement by necessity over the access road, finding that the original subdivision plan intended for the lots to have access, and the property would otherwise be landlocked.

The defendant's counterclaim was largely dismissed, except for an order to remove a small portion of the septic field encroaching on another part of the defendant's land.

The defendants brought a motion seeking an order bifurcating a jury trial so that liability would be tried first and damages later in a motor vehicle accident action involving catastrophic brain injury and complex insurance coverage issues.

The court held it lacked jurisdiction to bifurcate liability and damages where a valid jury notice had been delivered and the parties did not consent, relying on binding Court of Appeal authority.

The court further noted that even if jurisdiction existed, bifurcation would risk duplicative evidence, inconsistent findings, additional delay and cost, and could undermine settlement incentives.

The motion was dismissed and costs were awarded to the responding plaintiff.

The appellant sought to appeal an arbitrator's preliminary decision finding that the parties had not reached a settlement, and requested a stay of the upcoming arbitration hearing.

The Director's Delegate declined to exercise discretion to hear the interlocutory appeal, finding that it did not finally decide all issues in dispute and that hearing it would not facilitate the most cost-effective resolution.

The Delegate also refused to stay the arbitration hearing, noting the absence of special circumstances to take control of the process away from the hearing arbitrator.

The appeal was rejected without prejudice to renewing it after all issues are finally determined.

The plaintiffs brought a civil action in negligence against the defendant police officers following the fatal shooting of their family member.

The deceased, who was intoxicated and armed with knives, advanced aggressively toward an officer and refused commands to drop the weapons.

The court found that the officers acted reasonably and within the standard of care expected in such dangerous and rapidly unfolding circumstances.

The action was dismissed, though damages were assessed at $100,000 under the Family Law Act in the event of an appeal.

In a motor vehicle accident tort action scheduled for jury trial, the defendants brought a motion seeking production of a draft Form 1 assessment relating to attendant care benefits under the Statutory Accident Benefits Schedule.

The document had been inadvertently disclosed by the plaintiff’s counsel during production of the accident benefits file, after which the plaintiff asserted litigation privilege.

The court held that litigation privilege did not apply because the dominant purpose of the occupational therapist’s assessment was to support a statutory claim for accident benefits rather than to prepare for litigation.

The plaintiff could not retroactively convert the document into privileged litigation material after receiving an unfavourable assessment.

The motion was granted and the document ordered produced, though admissibility at trial remained within the trial judge’s discretion.