Last updated September 1, 2011
Is there a presumption that commercial plaintiffs are entitled to compound interest on their damages?
Justice Newbould says it should be presumed that the corporate plaintiff would have made the most beneficial use of the damages and that therefore, compound interest should be awarded. Should it?
Judge says surveillance video given to IME doctor must be produced to plaintiff
Justice Perell rejected a defence objection that producing a surveillance video before the plaintiff underwent a defence medical would allow the plaintiff to "deceive" the doctor. But we think there are other ways of addressing the problem.
C.A. says OPCF-44R insurer can still be sued after release of tortfeasors
The Court said that a settlement with the tortfeasors and the primary insurer that has denied coverage does not bar an action against the underinsured insurer.
CPP and HOOP benefits not deductible
A Superior Court judge has held that CPP benefits (now deductible by statute from MVA tort damages) are not deductible in relation to pre-October 1, 2003 accidents. And Hospitals of Ontario Pensio Plan benefits are also not deductible.
When is an expert not an expert?
When he or she is testifying as a fact witness. Recent decision lets treating physicians testify, but not as experts.
Privilege on surveillance waived by providing it to defence medical expert
More on experts and their role under the new Rules. This decision is from Master Short
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Rules 4.01 and 53.03 held not to apply to experts not retained by a party
Justice MacLeod-Belliveau comes to a different conclusion than did Moore J. in Beasley v. Barrand.
Auto insurer no longer owes duty to defend once it has paid out policy limits
Justice Arrell yesterday ruled that once an auto insurer has paid its policy limits plus costs, it no longer owes a duty to defend its insured.
Pro bono lawyer wreaks havoc on U.S. foreclosure wave
The New York Times profiles the lawyer whose deposition of a "robo-signer" has precipitated a halt to the flood of mortgage foreclosures in the U.S.
Superior Court discusses law regarding variation of prescribed rate of prejudgment interest
In the present economy, existing rules regarding prejudgment interest are giving rise to requests to vary the prescribed rate. Quigley J. considers the law.
Court says uninsured motorist insurer not bound in tort action by its settlement of income benefits claim as SABS insurer
C.A. splits 3-2 on whether defence medical examinations should be recorded
The issue seems likely to end up at the Rules Committee.
C.A says defendants' offers to settle don't give rise to substantial indemnity costs--or maybe they do
Confusingly, the Court of Appeal has released two decisions in the last week or so which take different positions on the question of whether a defendant's offer to settle can create an entitlement to substantial indemnity costs.
Master Dash clarifies limits on counsel "helping" a witness being examined for discovery
This case makes it clear that an examiner is entitled to get the evidence from the mouth of the witness.
Superior Court refuses to allow tort insurer to call AB experts at trial
The new Rules applicable to expert witnesses will make it more difficult to call experts retained by someone else.
C.A. says $125,000 is present maximum for "loss of care, guidance and companionship"
The Court reduced a jury's $200,000 award to the mother of a woman killed in an MVA.
Matlow J. says changes to R. 20 mean motions for summary judgment can be brought before judges, not just masters
Costs fixed at $76,000 where jury's award of damages only $5,000
A Pyrrhic victory.
Motion to compel answers to discovery undertakings requires leave once action set down for trial
Justice Paul Perell held that despite R. 48.04, which lists obligations that continue once a party has set an action down for trial, a motion to enforce discovery undertakings (one of the items on the list in R. 48.04) require that leave of the court be obtained.
First summary judgment under new Rule 20 suggests not much has changed
In a medical malpractice case, a judge hearing a summary judgment motion declined the invitation of counsel, to decide the issue of discoverability, preferring to leave it to trial. This, despite the broadened powers given to judges under the new R. 20.
Lump sum offer to multiple plaintiffs not a R. 49 offer
Justice Ferguson discusses what does and doesn't qualify
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Costs premiums? They're b-a-a-a-c-k!
A judge has awarded a "risk premium" despite Walker v. Ritchie.
"Litigating finger" can point to two partes simultaneously
Master MacLeod has ruled that use of a "placeholder" such as "John Doe" in a proceeding can permit a later amendment, based on the principle of misnomer, to add two new parties.
Sidewalk height discrepancy of 3/4" not "unreasonable"
As a result, this slip and fall action was dismissed.
Court finds that claims reserves lack "semblance of relevance"
Accordingly, the Master refused to order an insurer to produce documents containing information about its reserves.
New Rules of Civil Procedure apply to motion for summary judgment served in 2009 but scheduled to be heard in 2010
This is one of
the first cases (of many, probably) to address the mechanics of transition from the old to the new Rules.
Duty to defend owed to vendor alleged to have made misrepresentations to purchaser of home
Liability insurance was found to be triggered by a claim against a vendor of a home who was being sued by the disgruntled purchaser who alleged that the home had deficiencies.
Court fixes costs of R. 76 trial at $1,600
The judgment was for $13,400 and the trial judge said that the costs sought--$13,360--were "grossly excessive".
Motions for summary judgment should be heard by masters, not judges
Mr. Justice Matlow says that motions for summary judgment must be brought before a master, where that is possible. He said that it is up to the master, not to counsel, to determine whether the motion involves a legal issue requiring resolution by a judge.
C.A. says plaintiffs claiming under uninsured motorist coverage need not pursue insured joint tortfeasors
Last week, the Court of Appeal ruled that a personal injury plaintiff is entitled to sue his or her own insurer under the uninsured motorist coverage, without having pursued all potential insured tortfeasors. Because of the nature of the liability for the uninsured insurer (statutory and contractual), it might be left with no way to recover against those insured joint tortfeasors.
Discovery witness must provide summary of his prior statement about accident
Court finds duty to defend but refuses to allow insured to select defence counsel
Does this decision set the bar too high?
Court discusses loss of privilege on electronic documents through disclosure of documents to third parties
New rules for electronic documents?
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