Warren WhiteKnight

The defendants brought a motion to compel the plaintiff to attend defence medical examinations and to extend the time for serving expert reports.

The plaintiff opposed, arguing the defendants had no reasonable explanation for their significant delay in complying with the Rules of Civil Procedure and a consent timetable order.

The court applied the conjunctive test under Rule 53.08, which requires both a reasonable explanation for the failure and that granting leave would not cause non-compensable prejudice or undue delay.

The court found that the defendants' explanations, including a long-standing intention to obtain reports, misunderstanding of deadlines, and inadvertence over an eight-year period, did not constitute a reasonable explanation.

As the first part of the test was not met, the motion was dismissed, and the plaintiff was awarded costs.

This motion addressed Security National's request to add additional defendants (People on Bikes, Gordon Townley, and His Majesty the King in Right of Ontario) to an existing third-party claim, almost six years after the incident and after the expiry of the statutory limitation period.

The court determined that the applicable rule for adding parties to an existing claim was Rule 5.04(2), not Rule 29.02(1.2), which required considering prejudice to both the plaintiff and the proposed new parties.

The court found that Security National failed to demonstrate that the information regarding the proposed defendants was not discoverable earlier with due diligence, thus prejudicing the proposed defendants due to the expired limitation period.

Furthermore, the court found that allowing the motion would cause significant delay and increased costs, resulting in actual prejudice to the plaintiff, Erin Townley, who has suffered serious injuries and seeks closure.

The court also noted the questionable merit of the claim against uninsured proposed parties.

Consequently, Security National's motion was denied.

The defendants in a motor vehicle accident case brought a motion to compel the plaintiff to attend three defence medical examinations, months before a scheduled jury trial.

The plaintiff opposed, citing the defendants' non-compliance with the Rules of Civil Procedure and a consent order that set a deadline for expert reports, which the defendants missed.

The court dismissed the motion, finding no reasonable explanation for the defendants' significant delays in arranging the examinations and bringing the motion.

The court emphasized that compelling attendance for examinations whose resulting reports would be presumptively inadmissible at trial, due to the missed deadlines and lack of a motion to extend time for service, was contrary to principles of efficiency and proportionality.

This endorsement addresses three issues arising from a prior trial judgment: the statutory deductible for non-pecuniary damages, the prejudgment interest rate, and the costs of the action.

The court determined that the 2019 statutory deductible applied, reducing the net non-pecuniary damages.

The prejudgment interest rate was fixed at 1%, rejecting the plaintiff's request for a higher rate due to the defendant's conduct.

On costs, the court found the plaintiff was entitled to partial indemnity costs up to the Rule 49 offer date and substantial indemnity costs thereafter, criticizing the defendant's inflexible settlement approach.

The court adjusted the plaintiff's requested hourly rates and disbursements, ultimately fixing fees at $300,000 plus HST and disbursements at $39,864.56 plus HST.

The plaintiff, Peter St. Marthe, sued the defendant for injuries sustained in a bicycle-car collision.

The defendant admitted liability, leaving the court to determine damages, contributory negligence, whether the plaintiff met the permanent serious impairment threshold, and if the action was statute-barred.

The court found the plaintiff's claim was not statute-barred, he met the permanent serious impairment threshold, and was not contributorily negligent.

Damages were awarded for non-pecuniary loss, past and future income loss, and future housekeeping and home maintenance expenses.

The plaintiffs sued the defendant cardiac surgeon for failing to obtain informed consent after the plaintiff suffered permanent vision loss following life-saving heart valve surgery.

The defendant moved for summary judgment.

The court held that the presence of a jury notice does not alter the test for summary judgment.

Applying the modified objective test for causation, the court found that even if the remote risk of blindness was a material risk that should have been disclosed, no reasonable person in the plaintiff's position—facing an 80% chance of death within three years without the surgery—would have declined the procedure.

The plaintiff also admitted in cross-examination that he would have consented if presented with the relative risks.

The motion for summary judgment was granted and the action dismissed.

The defendants, CP REIT Ontario Properties Limited and Arcturus Realty Corporation, brought motions for summary judgment to dismiss the plaintiff's claim under the Occupiers' Liability Act.

The plaintiff was struck by a car in a shopping plaza managed by the defendants.

The court considered conflicting expert opinions regarding site safety and pedestrian "desire lines," and the impact of a jury notice on summary judgment motions.

The court found that a genuine issue for trial existed, as a reasonable jury, properly instructed, could find the defendants liable for breaching the Occupiers' Liability Act.

Consequently, the motions for summary judgment were dismissed.

The plaintiff and defendants brought cross-motions to determine the appropriate forum for resolving the quantum of costs following an accepted offer to settle.

The plaintiff sought assessment by an assessment officer under Rule 57.04 of the Rules of Civil Procedure, while the defendants argued for resolution by a judge under Rule 49.09, citing non-compliance with the offer.

The court found that Rule 49.09 did not apply as the defendants were prepared to pay costs, and the issue was the method of adjudication.

The court concluded that the resolution of costs and disbursements should proceed before an assessment officer pursuant to Rule 57.04, emphasizing that Rule 58.01 mandates assessment for costs not fixed by the court.

No costs were awarded for this motion due to the ambiguity of rule interpretation.

The parties sought clarification of a previous order regarding the conditions of the plaintiff's independent medical examinations.

The court issued supplementary reasons clarifying that the prohibition on using a questionnaire in advance of the assessment does not preclude the use of psychometric testing forms.

Furthermore, the condition that the plaintiff's health records not be disclosed to anyone other than defence counsel does not prevent the expert from utilizing administrative staff or a psychometrist.

This endorsement addresses the costs of a contested motion where the defendants successfully obtained independent medical examinations, but on terms largely advocated by the plaintiff.

The court found success was divided, with the plaintiff being "more successful" on the central issue of the conditions for the medical assessments, particularly regarding "ghostwriting" concerns.

Applying Rule 57, the court awarded the plaintiff partial fixed costs, acknowledging the legitimate differences of opinion on novel issues.

The defendant Jamie Macari moved for an order compelling the plaintiff to undergo two independent medical examinations (IMEs) and to pay a late cancellation fee for a missed appointment.

The plaintiff sought additional conditions for the IMEs, specifically regarding "ghost writing" of expert reports, and opposed paying the cancellation fee.

The court allowed the defendant's motion in part, imposing modified conditions for the IMEs to ensure expert reports are solely authored by the examining doctor and are compliant with Rules 33.06 and 53.03(2.1), and ordered the plaintiff to pay a reduced portion of the cancellation fee.

Following a 17-day trial resulting in a net judgment of approximately $472,000 for the plaintiffs, the court assessed costs.

The plaintiffs sought over $445,000 in fees and disbursements.

The court reduced the senior counsel's hourly rate, applied a 60% partial indemnity rate, and deducted amounts for unsupported time and disbursements.

The court declined the defendants' request to impose a $40,000 remedial penalty on the plaintiffs for refusing to mediate, noting such penalties should be proportionate to a party's financial strength.

Costs were fixed at $204,811.50 for fees and $42,545.30 for disbursements, plus HST.

Following a jury verdict in a personal injury action arising from a motor vehicle collision involving a cyclist, the court addressed post-verdict issues including the statutory threshold for recovery of non-pecuniary damages, the applicable statutory deductible, and the appropriate rate of pre‑judgment interest.

The court found that the injured plaintiff established a permanent serious impairment of an important physical function under the Insurance Act threshold.

The court further held that the increased statutory deductible introduced by O. Reg. 221/15 applied to pending actions, characterizing the deductible as procedural in nature and applicable to quantification of damages.

However, the court concluded that entitlement to and quantification of pre‑judgment interest are substantive matters and therefore the amended Insurance Act provisions did not apply retrospectively.

Pre‑judgment interest was therefore calculated under Rule 53.10 until December 31, 2014 and under s. 128(1) of the Courts of Justice Act thereafter.