Todd J. McCarthy

The plaintiff pedestrian was struck by a left-turning pickup truck while crossing an intersection at night.

The plaintiff suffered a severe traumatic brain injury.

The plaintiff sued the driver, the municipality, and the municipality's electrical contractor, alleging the intersection was in a state of non-repair due to missing streetlights on the median.

The court found the driver 100% liable for failing to ensure the turn could be made safely.

The claims against the municipality and contractor were dismissed, as the intersection had sufficient illumination from other sources and was deemed in a state of repair under the Minimum Maintenance Standards.

Damages of approximately $2 million were awarded against the driver.

The appellant insurer appealed a Licence Appeal Tribunal decision finding that a binding settlement of tort and accident benefits claims was reached via email following mediation.

Shortly after the email exchange, the plaintiff was killed.

The insurer argued no settlement was reached because the plaintiff had not finalized the structure percentage or signed the settlement disclosure notice.

The Divisional Court dismissed the appeal, holding that the essential terms were agreed upon, the structure percentage was a default minimum, and the right to rescind under consumer protection legislation implies a settlement was already reached.

The respondent insurer requested a reconsideration of a decision finding that the parties had reached a binding settlement agreement regarding the applicant's accident benefits claims.

The insurer argued that the Tribunal erred in concluding that an email from the mediator constituted minutes of settlement and that an executed Settlement Disclosure Notice was not an essential term.

The Tribunal dismissed the request, finding no significant legal or evidentiary mistake that would have affected the outcome, and held that the insurer was attempting to re-litigate arguments that failed at first instance.

The plaintiff was injured in a motor vehicle accident for which the defendants admitted liability.

The trial proceeded by judge alone to determine whether the plaintiff's injuries met the statutory threshold and to assess damages.

The court found that the plaintiff sustained a permanent serious impairment of an important physical, mental, or psychological function, specifically chronic widespread pain, mild neurocognitive disorder, and psychological symptoms.

The court dismissed the defendants' threshold motion and awarded the plaintiff $100,000 in general damages, $38,371 for past income loss, $201,294.72 for housekeeping, and various amounts for future care costs and out-of-pocket expenses, with future income loss to be calculated based on a projected retirement date.

The defendants, an insurance company and a public adjuster, brought a motion for summary judgment to dismiss the plaintiffs' action concerning a fire insurance claim.

The plaintiffs alleged the settlement and release were unfair due to an imbalance of bargaining power and the defendants' negligence/bad faith.

The court dismissed the summary judgment motion, finding genuine issues for trial regarding the validity and clarity of the release, the professional negligence claims against the adjuster, and whether expert evidence on the standard of care was required given the alleged egregious conduct.

The court emphasized caution against granting partial summary judgment due to risks of delay, expense, and inconsistent findings.

The applicant was involved in two motor vehicle accidents and reached a global settlement with the respondent insurer at mediation.

Ten days later, before signing the settlement disclosure notice (SDN) and release, the applicant was killed by her mother.

The insurer argued the settlement was unenforceable because the applicant did not personally sign the SDN and release, and because the common law slayer rule prevented the funds from flowing to the mother.

The Tribunal found that a binding settlement was reached at mediation and that the applicant's estate could execute the SDN and release on her behalf.

The Tribunal also found that the slayer rule did not invalidate the settlement, as the family committed to ensuring the funds would flow only to the applicant's sister.

The plaintiff in a medical malpractice action moved to consolidate his action with two other related actions: a motor vehicle accident (MVA) action in which he was the defendant, and a long-term disability (LTD) action brought by the MVA plaintiff.

The court applied the test for consolidation under Rule 6.01 of the Rules of Civil Procedure.

Finding significant overlap between the MVA and LTD actions, the court ordered them to be tried together.

However, due to the early procedural stage of the malpractice action and the prejudice delay would cause to the MVA plaintiff's income loss claim under the Insurance Act, the court declined to strictly consolidate the malpractice action, ordering it to be tried with the others only if it is ready in time.

Following a jury trial for a motor vehicle accident where the jury awarded $40,000 in non-pecuniary damages, the defendant brought a threshold motion to dismiss the claim.

The court analyzed whether the plaintiff's soft tissue injuries, TMJ dysfunction, and psychological issues were caused by the accident and constituted a permanent serious impairment.

The court found that only the whiplash injury was caused by the accident, while the TMJ and psychological issues were pre-existing or unrelated.

The court concluded that the whiplash injury, although permanent, was not a serious impairment as it did not substantially interfere with the plaintiff's usual activities.

The threshold motion was granted and the claim for non-pecuniary damages was dismissed.

The defendants brought a motion under Rule 59.06(2)(a) to vary a consent order that established a wait-and-see deadline for striking their jury notice due to COVID-19 court capacity limits.

The defendants argued that recent communication from defence counsel in a conflicting criminal jury trial constituted new facts justifying an extension of the deadline.

The court dismissed the motion, finding that the communication did not amount to new facts that could not have been known earlier, and emphasized that courts should rarely vary voluntary consent orders.

This is an appeal from an order dismissing a motion to validate late service of a statement of claim and extend the time for service in a motor vehicle accident action.

The appellant's former counsel failed to serve the defendants within the prescribed six-month period due to inadvertence.

The motion judge refused to admit a supplementary affidavit and dismissed the motion, finding insufficient explanation for delay and prejudice to the respondents.

The Court of Appeal found that the motion judge erred in finding insufficient explanation for delay, as it was due to counsel's inadvertence.

Furthermore, the motion judge erred in the prejudice analysis by failing to consider that the respondents' insurer had notice of the accident and the appellant's involvement, which shifted the onus to the respondents to prove prejudice.

The Court of Appeal allowed the appeal, validated the late service, and extended the time for service on unserved defendants, with a term regarding pre-judgment interest.

The plaintiffs brought a motion to strike a jury notice due to court availability issues in Kingston, while the defendant brought a motion to adjourn the trial so it could be heard together with a separate action arising from a subsequent 2018 motor vehicle accident.

The court conditionally struck the jury notice, noting that criminal trials take priority and a civil jury trial was unlikely to proceed as scheduled.

The court dismissed the defendant's motion to adjourn, finding that delaying a 2012 accident claim by several more years to allow the 2018 action to catch up would cause significant prejudice to the plaintiffs.

This appeal concerned a jury award for damages in a motor vehicle accident case, specifically challenging the trial judge's directions on causation and the admissibility of evidence.

The appellant argued that the trial judge misdirected the jury on the "but for" test for causation by using "material contribution" language and improperly excluded a Statistics Canada report and curtailed re-examination of an expert.

The Court of Appeal dismissed the appeal, finding that the jury, despite the "material contribution" language, would have properly understood the "but for" test.

The court also upheld the exclusion of the Statistics Canada report due to lack of authentication and reliance by the expert, and found no reversible error in the re-examination ruling.

Furthermore, the court affirmed that hypothetical past income loss is to be proven on a "real and substantial possibility" standard, not on a balance of probabilities.

The representative plaintiff brought a motion for approval of a $5,000,000 settlement in a class proceeding against a Children's Aid Society regarding a privacy breach where confidential client information was leaked online.

The court found the settlement fair, reasonable, and in the best interests of the class.

The court also approved class counsel's contingency fee of approximately $1.6 million plus disbursements, applying the Smith Estate factors, and approved a $5,000 honorarium for the representative plaintiff to be paid from counsel's fees.

The respondent slipped and fell on an icy driveway while walking toward a waiting rideshare vehicle.

The License Appeal Tribunal found the incident was an 'accident' under the Statutory Accident Benefits Schedule, entitling her to benefits.

The insurer appealed.

The Divisional Court allowed the appeal, finding the Tribunal erred in law by conflating the 'but for' test with the direct causation test.

The court held that while the vehicle's location led to the respondent being on the icy driveway, the use or operation of the vehicle was not the direct cause of her injuries.

This is an appeal from a costs ruling in a negligence action.

The plaintiff, Anna Przyk, sued Hamilton Retirement Group Ltd. (Rushdale) after a slip and fall.

A jury found Rushdale not liable, and the action was dismissed.

Rushdale, as the successful party, sought partial indemnity costs, which the trial judge denied.

The trial judge cited three reasons: the need for negligence law to adapt to elder care, a "David and Goliath" situation due to Rushdale's insurer (Aviva), and Aviva's "hardball" settlement approach.

The Court of Appeal found that the trial judge erred in principle by relying on the insurer's resources and settlement posture as reasons to deny costs to a successful party, absent litigation misconduct.

However, the Court upheld the no-costs award on the independent ground that the case raised important and novel issues concerning elder care, which is a valid consideration for costs discretion.

The appeal was dismissed, with no costs awarded for the appeal.

The plaintiff was injured in a motor vehicle accident when the vehicle he was in was struck by a vehicle driven by the defendant.

The main action settled for $220,000.

The defendant brought a third party claim against another driver, alleging that the third party's road rage and threatening behaviour caused the defendant to flee the scene and strike the plaintiff's vehicle.

The court found that the third party's conduct materially contributed to the accident and apportioned liability 50/50 between the defendant and the third party, ordering the third party to pay $110,000.

The plaintiffs brought pre-trial motions in a personal injury action arising from a bicycle-motor vehicle collision involving an eight-year-old.

The plaintiffs sought to reverse the order of presentation at trial due to the defendant's reverse onus under the Highway Traffic Act, a declaration that the minor could not be found contributorily negligent, a presumption that healthcare expenses paid by the accident benefits insurer were caused by the accident, and leave to amend the statement of claim to increase damages.

The court declined to alter the order of presentation or rule out contributory negligence at this stage.

The court also refused to presume causation for the accident benefits, requiring the plaintiffs to prove their damages on a gross basis.

However, the court granted leave to amend the statement of claim to increase the damages claimed to $22 million.

The applicant sought judicial review of a preliminary decision by the Licence Appeal Tribunal (LAT) that stayed her application for statutory accident benefits until she consented to the release of insurer's examination reports.

The applicant had revoked her consent, arguing that the involvement of a third-party vendor compromised the independence of the assessments.

The Divisional Court dismissed the application for judicial review as premature, holding that absent exceptional circumstances, courts should not interfere with ongoing administrative processes until they are completed.

The court found no exceptional circumstances, noting that issues regarding the independence of medical assessments should be raised before the ultimate trier of fact.

The plaintiff, who was injured in a motor vehicle accident while riding her bicycle, brought a motion to strike her own jury notice due to anticipated delays caused by the COVID-19 pandemic.

The plaintiff argued that the delay would cause financial hardship and prejudice under the Insurance Act.

The defendants opposed the motion, arguing that the delay was uncertain and that they preferred a jury trial.

The court found that the anticipated delay would cause significant prejudice to the plaintiff, which outweighed the defendants' preference for a jury.

The court conditionally struck the jury notice, ordering that the matter proceed by judge alone if civil jury trials are not running when the case is called.

The moving party sought leave to appeal from a lower court order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $2,500.