Thomas V. Ozere

This decision concerns the approval of a contingency fee retainer agreement, the reasonableness of solicitor-client accounts, and the management of settlement funds for plaintiffs under disability in a personal injury action.

The court reviews the proposed legal fees for both Stephen and Adriana Duffy, the structure of the settlement payments, and the adequacy of the arrangements for the management of funds, ultimately approving the proposals as reasonable and in the best interests of the parties.

This is an interim ruling on a motion for court approval of a tentative settlement reached in a personal injury action involving parties under disability.

The plaintiffs sought approval for the settlement of Stephen Duffy's and Adriana Duffy's claims, approval of contingency fee retainer agreements, approval of a proposed structured settlement for Stephen, and an order dispensing with service of the motion record on the defendants.

The court approved the settlement amounts for both Stephen and Adriana, and the disbursement accounts.

However, the court adjourned the approval of the proposed solicitor-client fee accounts for both Stephen and Adriana, and the proposed structured settlement for Stephen, due to insufficient supporting evidence.

The request to dispense with service of the motion record on the defendants was also denied, requiring the plaintiffs to provide specific details on claimed privileges.

The court issued a costs endorsement following post-trial motions concerning the assignment of Long Term Disability (LTD) benefits, pre-judgment interest (PJI) rates, and tax treatment of LTD benefits.

The defendant sought partial indemnity costs for these motions, while the plaintiff argued for each party to bear their own costs, citing legal developments and novelty of arguments.

The court awarded the defendant $8,000 in partial indemnity costs for the PJI portion of Motion 1, finding the plaintiff's argument on PJI not novel.

For the assignment and tax treatment issues (Motion 1 and Motion 2), the court found both parties responsible for the lack of agreement and ordered them to bear their own costs.

The court also addressed costs for preserving the plaintiff's LTD rights, which were to be paid by Aviva on a full indemnity scale, with quantum to be resolved by the parties or fixed by the court.

Following a jury verdict, the plaintiff brought a motion for judgment to determine the pre-judgment interest (PJI) rate applicable to general non-pecuniary damages.

The plaintiff argued for a 5% PJI rate, asserting that amendments to the Insurance Act effective January 1, 2015, were not retroactive as PJI is a matter of substantive law, relying on the Divisional Court's decision in Carr v. Modi.

The defendant conceded the court was bound by Carr, despite believing the case law was wrongly decided, given a pending Court of Appeal decision in El-Khodr v. Lackie.

The parties agreed to issue judgment with a 5% PJI rate, with a mechanism to revisit the calculation if the El-Khodr appeal decision impacted it.

The court ordered judgment for the plaintiff in the agreed amount.

The defendant brought a threshold motion under section 267.5 of the Insurance Act, seeking a declaration that the plaintiff had not suffered a permanent and serious impairment of an important physical, mental, or psychological function as a result of a motor vehicle collision.

The plaintiff opposed the motion, arguing that her injuries, including PTSD and major depression, met the threshold criteria.

The court dismissed the defendant's motion, finding that the plaintiff had, on a balance of probabilities, suffered a permanent, serious impairment of an important physical, mental, or psychological function caused by the collision.

The court also made findings on the credibility and reliability of the defence medical expert.

The plaintiff in a motor vehicle collision action brought a motion to include the names of the parties' respective motor vehicle insurers (Belair Direct and Aviva) in the jury pre-screening process.

The plaintiff argued that public awareness of mandatory insurance mitigated prejudice and that broader "connections" beyond employment should be screened.

The defendant opposed, citing potential prejudice and increased complexity.

The court dismissed the motion, affirming that civil jury selection in Ontario does not permit challenges for cause based on unspecified partiality and that the presumption of juror impartiality is strong.

The court held that identifying insurers at the outset could mischaracterize the dispute as one between insurers rather than individuals and potentially mislead the jury regarding a defendant's personal exposure.

The plaintiff sought a specific instruction to the jury regarding the defendant's in-court admissions concerning fault for a collision.

During cross-examination, the defendant stated she did not believe the plaintiff was responsible and that her decision to enter a lane ultimately caused the accident.

The court had previously given a general instruction that the jury are the triers of fact and the defendant's views on fault are merely her views.

The plaintiff argued these were in-court admissions warranting a specific instruction that the jury should rely on them unless contradicted.

The court ruled that the defendant's answers were her views, not admissions of fact based on all relevant evidence, and therefore did not warrant specific mention in the jury charge.

The defendant in a personal injury action sought to rely on approximately 20 posts from the plaintiff’s Facebook page for cross-examination, which had been retrieved through an agreement but not formally disclosed.

The plaintiff objected, citing prejudice due to the late disclosure of a significant volume of materials, which prevented proper trial preparation, expert review, and settlement negotiations.

The court dismissed the defendant's request, emphasizing the importance of full and rigorous compliance with disclosure obligations under the Rules of Civil Procedure and the agreement between counsel.

The defendant sought to admit surveillance video of the plaintiff as substantive evidence in a personal injury action.

The court applied a three-part test for admissibility (accuracy, fairness/absence of intention to mislead, and verification on oath) and found that the surveillance evidence did not meet these criteria due to issues with inconsistent time-stamping, selective editing, subjective descriptions by the investigator, and significant gaps in footage.

The court also determined that the evidence had minimal probative value and that its potential prejudice to the plaintiff, particularly given the claim of post-traumatic stress disorder and the lack of expert review of the surveillance, outweighed any probative value.

Additionally, the defendant's late disclosure of 2016 surveillance evidence, two weeks before trial, was deemed non-compliant with disclosure obligations, and leave to rely on it was denied.

The motion to admit the surveillance evidence was dismissed in its entirety.

The plaintiff, Beate Nkunda-Batware, was awarded $418,330 by a jury in a motor vehicle personal injury action.

The defendants brought a threshold motion, arguing that the plaintiff's injuries did not meet the statutory exceptions under subsections 267.5(3) and (5) of the Insurance Act, requiring a "permanent, serious impairment of an important, physical, mental or psychological function." The court found that the plaintiff, a "thin skull" individual with a pre-existing predisposition to depression, suffered whiplash injuries that evolved into a chronic pain syndrome directly caused by the accident.

The court preferred the plaintiff's medical experts and concluded that the plaintiff's impairments were permanent and serious, substantially interfering with her employment and daily functioning.

The defendants' threshold motion was dismissed.