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.