Author Archives: Admin4

http://canlii.ca/t/g7zm0

ANALYSIS

[34]        In my view, the motion should be dismissed.

[35]        Justice Murray’s order was provided to plaintiff’s counsel three days after it was obtained. There is no explanation why plaintiff’s counsel did not review it until sometime in September 2012. There is no satisfactory explanation as to why the motion was not brought until December 2012. While I might not dismiss this motion on this ground alone, the motion was not brought forthwith as required by the rule 37.14(1).

[36]        While the motion to dismiss was brought without notice as allowed by Wein J., it must be kept in mind that this was not entirely without notice to plaintiff’s counsel. He was in attendance when Justice Wein’s order was made. This situation must not be confused with a motion such as an interim injunction brought and heard before the defendant is even aware that an action has been commenced.  The plaintiff knew exactly what should be done and by when to avoid the motion.

[37]        In his affidavit and factum, the plaintiff submits that:

“[G]iven [plaintiff counsel’s] ongoing best efforts to provide and request outstanding undertakings, [plaintiff’s counsel] did not anticipate that the Defendants would pursue this matter so aggressively and demand strict compliance. Most importantly, [plaintiff’s counsel] did not anticipate that [defendants’ counsel] would bring an ex-parte motion to strike the plaintiff’s claim so soon following Justice Wein’s order. Had [plaintiff’s counsel] some notification of [defendant’s counsel]’s intention to proceed with a Motion to strike the Plaintiff’s claim, he would have undertaken all possible efforts to pay the costs award (which he believed would not be enforced) and deal with the outstanding undertakings on an urgent basis.”

[38]        I do not accept this submission. The defendants had been prodding the plaintiff with correspondence before the motions were brought. Two motions had been successfully argued and substantial costs were ordered. Despite the defendants’ clear intention and the court’s clear orders, there is no reason why the plaintiff would not have undertaken all possible efforts to pay the costs and deal with the outstanding undertakings on an urgent basis. This is not a reasonable explanation for inadvertent error or technical non-compliance with the rules or orders.

[39]        I do not accept that the motion should be granted because no prejudice was shown.  Given the failure to provide a reasonable explanation, prejudice is less of a factor.  Even so, I am satisfied that there was some prejudice to the defendants for the following reasons.

[40]        The plaintiff’s admitted list of outstanding undertakings included the requests that he provide:

(1) whether he intended to obtain any expert opinions;

(2) the plaintiff’s business registration and confirm when the plaintiff started his business; and

(3) whether the results of the accident benefits testing was a proper assessment of the plaintiff’s ability to move.

[41]        There were also rather simple undertakings such as to advise whether the plaintiff experienced any pain in his lower back while working in construction or at all prior to the accident and to advise if the plaintiff was aware of a significant economic downturn in 2008.

[42]        The first three are significant undertakings to allow the defendants to properly respond to the claim. A failure to deal with expert evidence until almost five years after the accident will likely significantly delay the proceedings.  The latter two undertakings would provide the defendants with necessary background information to accurately assess the claim. They also suggest an inattention to the file by the plaintiff himself.

[43]        There is no responding affidavit from the plaintiff but his counsel sets out a number of letters sent to his client to respond to the undertakings even as late as May 2012. A lawyer’s errors should not be visited upon the client; however, it appears that Mr. Zuk was involved in this failure to provide undertakings in a timely fashion, even after an order to do so. In any event, Mr. Zuk may have his own remedy against his lawyer if he is blameless.

[44]        There is nothing in the material filed by the plaintiff that would suggest that he would have been any more successful in front of Murray J. with the material that he now puts before this court. The undertakings were not completed; the costs were blithely ignored. Counsel had already been provided with two opportunities to extend the time for compliance and he failed to meet them. Indeed, using his own words, he could and should “have undertaken all possible efforts to pay the costs award and deal with the outstanding undertakings on an urgent basis.” Given those circumstances, the difference in the number of outstanding undertakings is not material.

[45]        Before dismissing an action or striking pleadings, the court should consider other alternate or less extreme remedies. Faced with this particular lawyer’s response to the outstanding orders, I can think of no other remedy. There is no suggestion that the failure to comply was inadvertent; plaintiff’s counsel is simply saying that he could have complied if he chose to but did not. On this record, any other order would not address the interests of the defendants in moving this matter forward and encouraging compliance with orders.

[46]        On a regular basis in the courts across Ontario, motions are filed to require counsel to live up to their undertakings. Time after time, they are resolved on the morning of the motion by a consent to extend the time for compliance with or without costs. Invariably the motion records are thick and correspondingly expensive. If counsel would simply comply with their undertakings as and when they are given, those motions would not be necessary and that time and money would not be wasted. While I hope that I see a distorted picture based only on the cases that come before me, there appears to be a culture in civil litigation that undertakings will be given at examinations but only complied with when pressed by the other side with letters, motions that are threatened or motions that are brought. That culture should come to an end; it should not be encouraged by granting orders such as requested in this case.

http://canlii.ca/t/g7ffz

[23]         The action arises from a motor vehicle accident that occurred on December 5, 2008.  The statement of claim, however, was not issued until December 7, 2010 – two days after the expiry of the applicable limitation period.

[28]         In light of that report, one would have expected the plaintiff to have provided some detail to support the discoverability plea and why, despite these reported symptoms, she did not believe she had the ability to meet threshold within the limitation period.

[29]         In terms of the odd timing for the issuance of the claim, the only explanation for it is found at paragraph 12 of Mr. Dran`s first supporting affidavit, where he states:

In order to protect the above noted limitation (sic), the statement of claim was issued on    December 7, 2010.

[30]         This assertion appears to conflicts with what the pleading states about discoverability.  The two-year limitation period had already expired – 2 days earlier.  If, as pleaded, the plaintiff formed the view on December 7, 2009, that her injuries now met threshold, then why would Mr. Dran believe that prior counsel issued to protect a limitation period that had already expired?   This evidence is incompatible with the pleading.

Efforts made by current counsel to locate and serve the defendant

[42]         Plaintiff’s current counsel assumed carriage of this file on July 11, 2012.  It does not appear, however, that a file review was conducted at that time.  Had the file been reviewed, Salmon’s failure to defend would have been noted and that would have led to the discovery that he had never been served.  Presumably that would have left to a motion to extend the time for service at that time, and efforts to locate him would have been initiated.  There is no explanation in the materials to explain why none of this transpired at that time.

[43]         The only explanation as to why nothing occurred when carriage of the file was assumed is contained in the supporting affidavit of Kiren Dran, who indicates that he is counsel at the firm with carriage of the file.  He says nothing, however, about his own involvement with this matter.  All he states is as follows:

I am advised and verily believe that due to inadvertence, the law clerk tasked with the plaintiff’s file did not alert the lawyer with carriage of the file of the failed attempt to serve the defendant Jason Salmon, and did not perform the updated searches on the defendant. As a result, the failed attempt was not brought to the attention of the lawyer with carriage of the matter.

[44]         This short passage raises the following questions:

–         By whom was Dran advised:

[72]         Although this motion was first booked back in January 2013 and though it was not confirmed the first time it was up and then adjourned the second time at the plaintiff’s request, there is still no affidavit from the plaintiff attesting to the fact that it was always her intention to proceed with this action.

[73]         The only evidence on point in contained in the affidavit of Simon Mariani, an articling student at the firm currently representing the plaintiff that was only delivered in late January 2014.  He states:

The plaintiff has continued to meet with our office and express her continued interest to proceed with this litigation

[74]         At this point, it is not even clear if the plaintiff was made aware that her rights were in jeopardy.  There is no evidence to the effect that anyone ever raised this with her.

[90]         The facts of this case are quite different from those in Chiarelli, supra. In Chiarelli, the court found that there were steps the defence ought reasonably to have taken to protect themselves from prejudice.  This was based on their having received not only notice, but 12 medical reports, so they were aware the injuries were serious.  They were therefore in a position to assess the potential magnitude of the claim and consider the value of taking steps to protect themselves early on.

[91]         In this case, it is not even clear that notice was even sent to the defendant or his insurer, let alone received be either.  The defendant had already moved from the address to which notice appears to have been sent while the insurer has no record of having received it.

[92]         Even if the notice letter had been sent and received, absent any medical information as to the nature and extent of the injuries suffered, how can the defendant be faulted for not having initiated surveillance and why would the defendant have expected the defence to seek a defence medical assessment?  With whom?  No area of injury had been identified to allow the defendant to identify what kind of specialist they should retain to assess the plaintiff.

[93]         As in Noori, I conclude that the defence would have suffered irreparable prejudice if validation of service had been permitted at this late date.   They have lost the opportunity to conduct timely surveillance and a vocational assessment.  They have also lost the opportunity to isolate the injuries suffered in this accident as distinct from those suffered in the plaintiff’s fall in May 2013 by way of defence medical examinations.

[94]         It is not reasonable to have expected them to have undertaken any of these steps in the absence of any information at all about the plaintiffs’ alleged injuries or losses.  Although plaintiff’s counsel was seeking and amassing these reports, they simply sat in their own file and none of these materials were forwarded to the defendant to allow them to assess the value of the claim or the work they should undertake to address it.

[95]         At best, the defence received notice and then heard nothing between November 2009 and March 2013.   In view of the two year limitation period and the 6 month period within which to serve the claim, they had no reason to do anything in the absence of service of the claim by June 2011.

[96]         Notice letters are usually sent before a plaintiff is in a position to assess if they can meet the legislative threshold, as the plaintiff alludes in her own pleading.  It is therefore not unusual for insurers to receive a notice that is never followed by an issued statement of claim.

[97]         In this case, it is not even clear if notice of the claim was received, or even sent.  There is no evidence form counsel with carriage at the relevant time addressing the issue.   As a result, the plaintiff’s position regarding prejudice is totally unfounded.

[98]         I am also mindful that a considerable period has now passed since this loss occurred and the parties have not yet gone to examinations for discovery.  Trying to reconstruct the events that led to the accident so long after the fact will be difficult.  When one is looking at a time frame of 6 years, concern about fading memoires is legitimate when liability remains in issue and those memories will have to be relied on.

[99]         For all of the above reasons, I conclude that the motion must be dismissed if I am to do justice between the parties.         

http://canlii.ca/t/g68rq

[13]           Up until November 8, 2013, some 4 years after the accident, the defendant, Gabriel Uribe-Valez had no knowledge that the plaintiffs were asserting a claim against him.  This of course falls well outside of the parameters of Rule 14.08(1) of the Rules that requires that a statement of claim be served within 6 months after it is issued.

[14]           The plaintiffs offer almost no explanation for the delay, except that they were unable to locate the defendant Gabriel Uribe-Valez, which is the basis for the motion for substitute service.  There was one unsuccessful attempt to serve the defendant on August 31, 2011 at his Burlington address two years after the accident.  Following that, there was a driver’s licence/address search on July 30, 2013, almost 4 years after the accident.  I am mindful that Gabriel Uribe-Valez has, since the time of the accident, resided at the Burlington address.  I find that the defendant could have, if any real effort had been made, been notified, and served with the statement of claim.  There seems to have been no effort or steps taken to advance the plaintiffs’ claim for at the very least almost two full years after it was issued.  I do not know what they were doing because there is no affidavit evidence filed, nor were there any arguments made orally.

[19]           I further find that the defendants ability to bring claims against potentially liable non-parties has been comprised and prejudiced.  I find this to be a live issue given the circumstances under which the accident took place.

[20]           I am also mindful that the onus remains on the plaintiffs to prove the lack of prejudice and rebut allegations of prejudice as put forth by the defendants.  A bald statement that there is no prejudice falls short of meeting that onus:  Noori v. Grewal, 2011 ONSC 5213 (CanLII), 2011 ONSC 5213.

[21]           I find that the plaintiffs have not demonstrated due diligence in their attempts to locate and serve the defendants.  As such, the motion for substitute service is dismissed.

[22]           Further, I find that granting the extension of time for service would result in real prejudice and unfairness to the defendants.  As such, that motion is dismissed.

http://canlii.ca/t/g50gr

What is it “to know” whether a litigant has a cause of action? This summary judgment motion raises questions about when a plaintiff and her lawyer knew or ought to have known about the existence of a motor vehicle negligence cause of action that meets the threshold requirements of s. 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8.

http://canlii.ca/t/g314j

9]         The appellant’s submission before the motion judge and in this court is that the respondent misled her concerning her entitlement to Non-Earner Benefits. She thought she could never receive the benefits because she had been working at the time of the accident, so she did not apply for them when her Income Replacement Benefits were terminated. At the time the respondent terminated her Income Replacement Benefits, she should have been told of her right to apply for Non-Earner Benefits.

[10]      The motion judge held that although the appellant may have been personally misled, she had hired a lawyer in early 2006 to advise her of her rights as a result of the accident and this would have included her right to accident benefits. Her lawyer would have known that limitation periods were running. The OCF-9 contained a clear refusal to pay Non-Earner Benefits, and this triggered the limitation period in s. 51(1) of the SABS, which required mediation to be commenced “within two years after the insurer’s refusal to pay the amount claimed.”

http://canlii.ca/t/g2zx9

[8]              Contingency fee agreements are governed by the Solicitors Act, R.S.O. 1990, c. S.15.  Section 5 of Contingency Fee Agreements, O. Reg. 195/04, made pursuant to the Solicitors Act, provides:

            5. (1) A solicitor for a person under disability represented by a litigation guardian with whom the solicitor is entering into a contingency fee agreement shall,

(a) apply to a judge for approval of the agreement before the agreement is finalized; or

(b) include the agreement as part of the motion or application for approval of a settlement or a consent judgment under rule 7.08 of the Rules of Civil Procedure.

(2) In this section,

“person under disability” means a person under disability for the purposes of the Rules of Civil Procedure. [emphasis added]

[9]              On May 21, 2013, I dismissed the motion for the approval of the CFA since it did not comply with s. 5 of the Regulation.  The court informed Counsel that the application could be renewed if and when an approval of a settlement or consent judgment is sought under Rule 7.08. The court must assess the fairness and reasonableness of the agreement and give effect to it if it finds the agreement is fair and reasonable.

[14]         The sole outstanding issue relates to the legal fees, disbursements and H.S.T.  Counsel proposes to allocate to Elizabeth Smith in the aggregate amount of $738,618.54.  If approved counsel would receive $1,040,000 for fees, $135,000 for G.S.T. and $80,000 for disbursements: an aggregate amount of $1,255,200 for its work on this entire action.

http://canlii.ca/t/g30lv

[2]          This is a sad case.

[3]          Not only was the Plaintiff Eva Hajos catastrophically injured in the April 7, 1996 motor vehicle accident that set off this difficult journey through the courts; but the Plaintiffs’ involvement with this litigation resulted in her husband spending virtually all of his waking hours in a quixotic search for justice.

[4]          They appeared before me, a sympathetic couple.  He, well dressed and articulate and evidently very bright and she, in a wheelchair, contributing very little to the argument.

[5]          After the accident they hired a lawyer (David) to pursue their accident-related claims, in the Fall of 1996.  But he withdrew his services in the Fall of 2005.

[6]          So they sued him in 2007.  That resulted in Mr. David filing a Requisition for Assessment in the Superior Court at Toronto.

[7]          A preliminary appointment for the assessment was scheduled for February 11, 2008 and the Plaintiffs brought a motion to stay the assessment proceedings pending resolution of their claim against David.

[8]          Then all went off the rails.

http://canlii.ca/t/g2wsk

[1]               By Application, Cassie Hodge sues Gary Neinstein and Neinstein & Associates.

[2]               Ms. Hodge seeks to have her Application certified as a class proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6. Ms. Hodge’s Application challenges the legality, fairness, and the reasonableness of the contingent fee retainer agreements of the Respondents.

[3]               Ms. Hodge’s motion record for certification was delivered in November 2012. The Respondents’ motion record was delivered in April 2013. Rule 39.03 examinations and cross-examinations of ten affiants, including: Ms. Hodge, Ryszard Kolbuc, a Class Member, Czeslaw Kupnicki, another Class Member, Greg Neinstein, and Gary Neinstein, took place in October and November 2013. There was a refusals motion on November 18, 2013.  The Neinsteins were re-examined on December 16, 2013. My endorsement on the refusals motion was silent about who was to pay for the follow-up examinations.

Class action targets law firm’s fees

A Toronto personal injury lawyer is facing a class action spearheaded by a former client who won $150,000 as a settlement award but alleges she ended up keeping only $8,000 of it.

http://www.lawtimesnews.com/201301212131/headline-news/class-action-targets-law-firms-fees

http://canlii.ca/t/fvbm7

Cassie Hodge is an applicant in a proposed class action under the Class Proceedings Act, 1992. Ms. Hodge alleges that the Respondents, Gary Neinstein, a lawyer, and Neinstein & Associates LLP, his law firm, entered into unlawful contingency fee agreements with clients.

http://canlii.ca/t/g2s06

NATURE OF MOTION

[1]         Manar Srajeldin retained Joseph Zayouna to bring an action on her behalf against the Toronto Transit Commission (“TTC”) and one of its streetcar drivers for damages for personal injury she suffered in a collision with a streetcar in 2009.  A year later, when a TTC Claims Adjuster made an offer to settle the action, Mr. Zayouna falsely informed the Adjuster that he had received instructions to settle for the amount offered.  Later, when Mr. Zayouna was unable to secure his client’s signature on a release that the TTC had sent to him, he informed the Adjuster that he had been instructed to proceed to litigation.

[2]         The TTC moved for judgment in accordance with the settlement the Adjuster believed he had reached with Mr. Zayouna.  Ms. Srajeldin opposed the motion, and her new lawyer advised Mr. Zayouna that she would be seeking the costs of the motion against Mr. Zayouna personally.  I dismissed the TTC’s motion, but found that Mr. Zayouna had precipitated the motion and should personally pay the costs that the TTC and Ms. Srajeldin had incurred in connection with it.

[3]         The court must determine the amount of costs that Mr. Zayouna should pay to the TTC and to Ms. Srajeldin.