Todd J. McCarthy

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 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.

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.

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 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 plaintiff's lawyers brought a motion to remove the defendants' lawyer of record, alleging an actual or perceived conflict of interest in her joint representation of all three defendants.

The plaintiff was never a client of the challenged lawyer.

The court dismissed the motion, finding that the plaintiff failed to establish a possibility of real mischief or that the proper administration of justice required the removal.

The court also found that the motion was brought for a tactical advantage, given the nearly two-year delay in bringing it after the issue was first raised.

The plaintiff brought a motion to strike the defendant's civil jury notice, arguing that the COVID-19 pandemic would cause a delay of 12 to 18 months if the matter proceeded before a jury.

The defendant opposed the motion, advocating for a 'wait and see' approach.

The court granted the motion, finding that the delay caused by the pandemic outweighed the defendant's right to a jury trial, and that justice would be better served by allowing the 10-year-old action to proceed more expeditiously before a judge alone.

The Dominion of Canada General Insurance Company appealed a motion judge's decision that Pembridge Insurance Company of Canada had no duty to defend Dennis Chu and John Chu from claims arising from a motor vehicle accident.

The underlying claim involved allegations that Dennis Chu drove negligently and subsequently engaged in threatening and assaultive conduct toward another driver.

The motion judge found that Pembridge's homeowner policy exclusions for vehicle-related claims and intentional acts precluded coverage.

The Court of Appeal reversed, holding that the motion judge erred by making factual findings inappropriate at the duty to defend stage, by failing to apply the proper legal test comparing pleadings to policy language, and by conflating the duty to defend with the duty to indemnify.

The court declared that the Chus were entitled to a defence under Pembridge's homeowner policy.

An appeal by Royal Sun Alliance Insurance Company of Canada (RSA) from a trial judge's decision that RSA was responsible to provide insurance coverage to the estate of Steven Devecseri, who was killed in a motorcycle accident in 2006.

Devecseri had alcohol in his system at the time of the accident, which breached both his M2 driver's licence restrictions and his insurance policy terms.

RSA did not learn of the alcohol consumption until 2009 during discovery proceedings, at which point it took an off-coverage position.

The trial judge found that RSA waived its right to deny coverage by failing to obtain the coroner's report in 2006 and by defending the claim without taking a reservation of rights.

The Court of Appeal reversed, holding that RSA did not waive coverage and was not estopped from denying coverage because it lacked actual knowledge of the policy breach until 2009.

An appeal from a motor vehicle accident trial in which the appellant, driving while impaired, collided with the respondents' vehicle, causing the death of a young child and serious injuries to family members.

Liability was admitted.

The appellant raised five grounds of appeal challenging the trial judge's determination of threshold issues under the Insurance Act, the admissibility of expert evidence, awards for loss of care, guidance and companionship, and the costs award.

The Court of Appeal dismissed all grounds of appeal, finding no bias, no error in the admission of expert evidence from a psychologist, no excessive damages awards, and no error in principle in the costs determination.

The plaintiff brought a motion to bifurcate a motor vehicle accident trial, strike the jury notice, and bar a defence medical examination.

The defendant cross-moved to compel the medical examination.

The court granted leave under Rule 48.04 for both parties to bring their motions.

The court dismissed the motion to bifurcate, finding it lacked jurisdiction under Rule 6.1.01 because the defendant had withdrawn its consent.

The court ordered the plaintiff to attend the defence medical examination to ensure trial fairness.

The motion to strike the jury notice was dismissed based on the 'wait and see' approach, as it was premature to determine if the jury would be prejudiced by the plaintiff suing her deceased husband's estate or confused by the engineering evidence.

Despite the defendant's success on the motions, costs of $5,000 were awarded to the plaintiff because the motions were necessitated by the defendant's late withdrawal of consent to bifurcation.

The defendant banquet hall brought a motion for summary judgment to dismiss the plaintiff's claim against it.

The plaintiff suffered a traumatic brain injury in a motor vehicle accident caused by an intoxicated driver who had just left a Christmas party hosted at the defendant's premises.

The defendant argued it had no reason to intervene as the driver showed no visible signs of intoxication and it had standard alcohol service protocols in place.

The court dismissed the motion, finding that a jury could conclude the defendant breached its duty of care by failing to properly monitor alcohol consumption and track patrons leaving the premises.

The plaintiff was injured after falling or jumping from the roof of a commercial building owned and occupied by the defendants.

The plaintiff and the individual defendant had gone to the roof to smoke, but the door locked behind them, leaving them stranded.

The defendants brought a motion for summary judgment to dismiss the action, arguing the plaintiff was solely responsible for her injuries by venturing away from the door.

The court dismissed the motion, finding that a trier of fact could conclude the defendants breached their duty of care under the Occupiers' Liability Act and that such breach was a proximate cause of the injuries, thus presenting a genuine issue requiring a trial.

The appellants appealed a jury verdict awarding approximately $186,000 in damages for a motor vehicle accident, significantly less than their claim of over $10 million and the respondent's pre-trial settlement offer of $500,000.

The appellants argued that the jury improperly assessed the plaintiff's credibility through evidence of his criminal record and unlawful conduct, and that the jury was misled on the test for causation and the standard of proof for future damages.

The Court of Appeal rejected all arguments, finding that the trial judge properly exercised her gatekeeping function, correctly charged the jury on credibility and causation, and that the jury's verdict was reasonable.

The appellants recovered nothing after costs were set off.

The court determined the appropriate interest payable on unpaid Income Replacement Benefits (IRBs) following a jury verdict in favor of the plaintiff.

The plaintiff sought interest under s. 46(2) of the Statutory Accident Benefits Schedule (SABS) (2% compounded monthly), while the defendant argued for pre-judgment interest under the Courts of Justice Act (CJA) (4.5% simple annual).

The court found that the claim for SABS interest was implicitly pleaded or, in the alternative, an amendment to the Statement of Claim would be permitted.

The court further ruled that SABS interest would apply from March 30, 2006, recognizing an initial period (February 20, 2004, to March 15, 2006) where the plaintiff's own conduct (misleading disability certificate) justified the insurer's non-payment, during which CJA interest would apply.

The court considered motions for approval of a tentative settlement in two tort actions and an order to continue without a litigation guardian, involving a plaintiff who suffered a serious brain injury.

The court found the motion records deficient, specifically regarding the plaintiff's current capacity and the clarity of proposed legal fees and disbursements.

Settlement approval was withheld, and counsel was directed to provide further documentation, including a certified capacity assessment and a detailed affidavit addressing the reasonableness of the contingency fee agreement.

The defendants brought a motion to compel the plaintiff, Kayla Annette Joanna Stetler, to attend a two-day independent neuropsychological examination.

The plaintiff opposed the neuropsychological assessment but was open to a psychological one, arguing that mood and pain, not cognitive impairment, drove her deficits.

The court dismissed the application for a neuropsychological assessment, finding it would impose an undue burden and potentially delay the trial schedule.

Instead, the court ordered the plaintiff to attend a single-day defence psychological assessment.