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 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 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.

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 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.

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.

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.

Following acceptance of an offer before a scheduled trial, the parties sought a judicial determination of costs, pre-judgment interest, and the proper wording of a release.

The court assessed relative success on issues including the quantum of costs previously awarded, the appropriate start date for pre‑judgment interest, and the permissibility of additional confidentiality and derivative action clauses in the release.

The plaintiff was more successful overall, particularly in resisting unilateral additions to the release.

A prior Rule 49 offer did not trigger adverse cost consequences because the judgment exceeded the offer and the proposed release terms had not been agreed upon.

Applying Rule 57 cost factors, the court fixed the plaintiff’s costs of the motion at $9,000 inclusive.

The successful plaintiffs sought costs following a motion in civil litigation.

The court considered the relevant factors under Rule 57 of the Rules of Civil Procedure, including success on the motion, proportionality, complexity of the issues, and the conduct of the parties.

The defendants argued that costs should not be awarded due to alleged deficiencies in disclosure discovered during examinations for discovery.

The court declined to address the disclosure dispute at this stage and left any potential consequences to the trial judge.

Finding the plaintiffs completely successful and the claimed partial indemnity costs reasonable, the court ordered the defendants to pay costs in the amount of $9,500 inclusive of HST.

Following settlement of an environmental claim between the plaintiff and a third party for $30,000 shortly before trial, the parties were unable to agree on the wording of the release and the quantum of costs.

The court considered whether a confidentiality clause and an expanded derivative indemnity enforcement clause should be included despite not being specified in the settlement offer.

The court held that such terms cannot be implied where they were not negotiated as part of the settlement agreement.

The court also determined the appropriate quantum of partial indemnity costs and assessed proportionality and fairness in light of the litigation circumstances.

Costs were fixed at $38,000 with pre‑judgment interest calculated according to the settlement terms.

The plaintiffs sought declarations that a 40‑foot road allowance adjacent to their property constituted a public highway and alternatively claimed ownership of portions of neighbouring land through adverse possession or similar equitable remedies.

The Township and the neighbouring landowner brought motions for summary judgment, while the plaintiffs brought a cross‑motion to amend their statement of claim.

The court granted leave to amend under Rule 26.01 of the Rules of Civil Procedure, finding the proposed amendments legally tenable and not causing irremediable prejudice.

Summary judgment was granted to the Township because the evidence established the road allowance was a private roadway never dedicated to or accepted by the municipality as a public highway.

However, summary judgment was refused with respect to the neighbouring landowner because significant factual disputes, including inconsistent permission agreements and issues surrounding encroachments and use rights, required a full trial.

The defendants brought summary judgment motions in a civil action while the plaintiffs brought a motion to amend the statement of claim.

During the hearing, the parties did not address whether the defendants intended their summary judgment motions to apply to the relief sought in any amended pleading should the amendment be granted.

The court directed counsel to arrange a brief appearance or provide written submissions addressing this procedural issue.

The endorsement addresses scheduling and clarification of the scope of the summary judgment motions.

The applicant sought a declaration that her homeowner’s insurer owed a duty to defend counterclaims alleging negligent supervision of a child that resulted in injury to her son.

The counterclaims arose after the family sued third parties for injuries sustained by the child, and those defendants sought contribution and indemnity against the applicant.

The insurer denied coverage relying on a policy exclusion for bodily injury to the insured or any person residing in the insured’s household.

The court held that the exclusion, read together with the policy’s liability coverage provisions, clearly removed coverage for claims relating to bodily injury suffered by a household member.

Because the injured child fell within the policy definition of “you”, the insurer had no duty to defend the counterclaims.