Judgment Released: April 22, 2010  Link to Judgment

Five judges of the Court of Appeal heard an appeal of a Divisional Court decision which expanded the ability of plaintiffs to audio-record defence medical examinations.  In reaching its ruling, the Divisional Court had referred to the Osborne Report and the concerns raised therein about expert evidence in civil actions.  In the course of allowing the appeal, Armstrong, Laskin, and Sharpe JJ.A., noted that the Osborne Report did not recommend the routine recording of defence medical examinations.  Lang and Gillese, JJ.A., dissenting, noted on the same topic that while the Osborne Report did not address the recording of defence medicals as an issue one way or the other, “[i]n any event, the Osborne Report recommendations were not meant to be exhaustive.  In addition, the law is a continually evolving process.”

Judgment Released:  May 12, 2010   Link to Judgment

The Court of Appeal upheld a grant of summary judgment dismissing a claim previously summarized on this blog (link to earlier summary) but noted that “it is neither necessary nor appropriate in this case to address the effect of the recent amendments to the Rules of Civil Procedure regarding summary judgment procedures.”

Judgment Released: February 18, 2010  Link to Judgment

The Court of Appeal confirmed that, at least prior to the introduction of the new Rules, the Superior Court lacked jurisdiction to bifurcate the trial of liability and damages issues where there is a valid jury notice in place and the parties do not consent.  In analyzing the question, the Court referred to new Rule 6.1.01, which states that “[w]ith the consent of the parties, the court may order a separate hearing on one or more issues in a proceeding, including separate hearings on the issues of liability and damages.”  While new Rule 6.1.01 did not apply to the case at bar, the Court noted that the new Rule “is the first time a rule speaking to bifurcation has been promulgated.  It signals that, in the opinion of the Rules Committee at least, the bifurcation of a trial, jury or non-jury, is not generally a good idea unless the parties consent…. This new rule may well permit the bifurcation of issues of fact or of mixed fact and law even where a jury notice has been filed, where the parties consent, thus surmounting the jurisdictional impediments previously in place.”

This is the first Court of Appeal judgment summarized on this blog.

Judgment Released: May 18, 2010   Link to Judgment

The Divisional Court granted leave to appeal a dismissal of a summary-judgment motion heard under the new Rules.  The summary-judgment motion judge’s ruling read in full as follows: “This motion is dismissed.  Submissions regarding costs may be exchanged & delivered to me within one month.  There are numerous conflicts in the evidence and I am satisfied that they can be justly resolved only after a trial.” The Divisional Court found good reason to doubt the correctness of the ruling in question as there were no appropriate reasons as to why the motion was dismissed. 

The Court noted that the application of the new Rule 20 was “very important to the legal profession.  It changes much of what was previously followed in summary judgment motions.  It gives the profession and judges much more guidance on what the results of such motions might look like, whether judgment is granted or not.  It allows the judge hearing the motion, if not granted, to set timetables, give directions on evidence and trial procedure”, noting that “none of this was followed by the Motions Judge hearing the motion for summary judgment.”

Note: this blog’s summary of the Divisional Court’s ruling on the merits, released October 21, 2010, is available here.

Judgment Released:  March 29, 2010   Link to Judgment

This appeal overturned the costs portion of a Master’s decision previously summarized on this blog (link to earlier summary).  The defendants had sought to amend their Statement of Defence after producing, late in the action, a key document that might dispose the action in their favour.  The Master granted the amendment upon the defendants paying the plaintiff certain costs on a substantial-indemnity scale.  On appeal, the Superior Court held that since the plaintiff as well as the defendants had long possessed the key document–so that each should have produced it earlier in the litigation–and since the non-disclosure was likely unintentional, the costs sanction ordered by the Master was in error.