February 9, 2015

Case Summaries

MDM Plastics Limited v. Vincor International Inc.

2015 ONCA 28

Released January 21, 2015

This was an appeal of a Divisional Court decision regarding the setting aside of a second dismissal order by the Court registrar.

The plaintiff had commenced an action against the defendant in February 2009 in relation to the defendant's alleged $11 million breach of a commercial agreement for the long-term supply of polyethylene terephthalate bottles. In July 2011, the registrar dismissed the plaintiff's action for delay pursuant to Rule 48.14(4) of the Rules of Civil Procedure. The plaintiff promptly sought and received the defendant's consent to set aside the dismissal order. Several months later, the registrar again ordered that the plaintiff's action be dismissed for delay. The plaintiff did not receive a status notice prior to the second dismissal. The defendant refused to consent to set aside the second dismissal order and the plaintiff promptly brought a motion to set it aside.

The Court reviewed the factors identified in Reid v. Down Corning Corp.

which require the plaintiff seeking to set aside a dismissal to explain the litigation delay, show inadvertence in missing the Court's deadline, bring a motion to set aside the dismissal promptly, and convince the Court that no prejudice would be suffered by the defendant as a result of the plaintiff's delay or as a result of steps taken following the dismissal of the action. The Court emphasized that the issue of prejudice and the principle of finality for the defendant were important considerations on a motion to set aside a dismissal order. The Court found that the master erred in requiring the plaintiff to adduce affirmative evidence to rebut a presumption of prejudice against the defendant. It found that in evaluating the strength of the presumption of prejudice, a master or motion judge must consider all of the circumstances, including the defendant's conduct in the litigation. In addition, the Court found that the master erred in failing to consider that the defendant's interest in finality had no application on the facts given that the plaintiff acted promptly to set aside the second dismissal order. The Court ultimately upheld the Divisional Court's decision setting aside the dismissal order.

Read the full decision on CanLII

Gyorffy v. Drury

2015 ONCA 31

Released January 22, 2015

This was an appeal dealing with the issue of whether an injured plaintiff is able to provide corroborating evidence of a change in function on a threshold motion. OTLA acted as an intervener in the case.

The plaintiff had been injured in a car accident in November 2003 in which he sustained a severe whiplash injury, continuous and permanent back pain, acute and chronic pain in his right shoulder, continuous headaches, and decreased range of motion in his spine. At trial, the plaintiff and three physicians testified. The jury awarded the plaintiff $39,000 in non-pecuniary loss less then statutory deductible of $30,000. While the jury continued to deliberate, defence counsel brought a threshold motion which was granted by the trial judge. The trial judge found that although he accepted the plaintiff's evidence about his pre- and post-accident condition, the plaintiff was precluded from providing the corroborating evidence of a change in function to show that he had suffered a permanent and serious impairment of an important physical, mental, or psychological function pursuant to the Insurance Act and the Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O. Reg. 461/96.

The Court upheld the Divisional Court's view that under s. 4.3(5) of O. Reg. 461/96, it was the physician's evidence that required corroboration. It found that the plaintiff was not expressly precluded from being a corroborating witness under the regulation. The Court further asserted that physicians will often have first-hand knowledge of a plaintiff's change in function, such as a family physician who has an ongoing relationship with the plaintiff both before and after an accident. The Court added that in cases of chronic pain, where a physician may have little or no independent knowledge of a plaintiff's change in function, it will be up to the trial judge to assess the plaintiff's evidence and determine whether it corroborates that of the physician. The Court declined to consider s.15 Charter arguments raised by the majority of the Divisional Court and OTLA regarding s. 4.3(5) of O. Reg. 461/96. The Court ultimately upheld the Divisional Court's decision allowing the plaintiff to corroborate his physician's evidence about his change in function pursuant to s.4.3(5) of O. Reg. 461/96.

Read the full decision on CanLII

Elliot v. Gallean Capital Partners Inc.

2015 ONSC 443

Released January 21, 2015

This is a case in which the plaintiff was seeking leave to amend her statement of claim to add two defendants. At issue was whether the two-year limitation period had expired.

The plaintiff had been injured on December 24, 2008 when she slipped and fell outside of a large office building where she worked. The counsel she initially retained commenced an action against the building owner and the property manager on December 23, 2010. Before the claim was issued, an adjuster from Aviva had sent a letter to plaintiff's counsel on November 6, 2009, advising of the existence of a contractor who had performed snow removal on the property. The plaintiff's file was transferred to a new lawyer on November 25, 2011. The new lawyer claimed that a copy of the November 6, 2009 letter was not contained in the previous solicitor's file. Examinations for Discovery of the existing defendants were held on November 2, 2012. At that time, the plaintiff's second lawyer was advised that a representative of the contractor would be produced on behalf of one of the existing defendants. Counsel for the plaintiff did not serve a motion to amend the pleadings in the action until November 24, 2014.

The Court found that based on the evidence, the most generous view in favour of the plaintiff was that a claim against the proposed defendants was not discovered or reasonably discoverable until the examinations for discovery of the existing defendants on November 2, 2012. That being said, the Court also found that even with such a generous view of the circumstances, the two year limitation period to add the proposed defendants would have expired on November 2, 2014, or approximately 22 days before the motion to amend was served. The Court ultimately dismissed the plaintiff's motion to add additional defendants on the basis of section 21(2) of the Limitations Act.

Read the full decision on CanLII

Summaries provided by Veronica Marson, OTLA member and lawyer practising with Singer Kwinter Personal Injury Lawyers.

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