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Dennis v. Ontario Lottery And Gaming Corporation, 2011 ONSC 7024 (Div. Ct.) (rule 4.1 – duty of expert witness; rule 53.03 – expert witnesses)

Judgment Released: December 2, 2011  Link to Judgment

Rule 4.1 confirms that an expert’s duty of impartiality prevails over any duty owed to the parties who retained the expert. The new procedures in Rule 53.03(2.1) requiring the execution of an Acknowledgement of Expert’s Duty applies only to trials, not to class action certification motions; however, “one could make the case” that it would be good practice on a certification motion to include the matters set out in Rule 53.03(2.1) in an expert’s report.

Dennis v. Ontario Lottery And Gaming Corporation, 2011 ONSC 7024 (Div. Ct.) (rule 4.1 – duty of expert witness; rule 53.03 – expert witnesses)

Laiken v. Carey, 2011 ONSC 7629 (Div. Ct.) (rule 20 – summary judgment)

Judgment Released: December 22, 2011   Link to Judgment

Romano v. D’Onofrio (2005), 77 O.R. (3d) 583 (C.A.), which holds that novel causes of action are best determined on a fully developed record at trial rather than on a summary judgment motion, remains good law after Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764.

Laiken v. Carey, 2011 ONSC 7629 (Div. Ct.) (rule 20 – summary judgment)

Bolohan v. Hull, 2012 ONCA 121 (rule 48.14 – action not on trial list)

Judgment Released: February 22, 2012   Link to Judgment

The test for dismissal under the status hearing provisions of Rule 48.14 is that the plaintiff bears the burden of demonstrating that there is an acceptable explanation for litigation delay and that, if the action is allowed to proceed, the defendant will suffer no non-compensable prejudice. The focus of the inquiry is the plaintiff’s conduct, but the conduct of the respondent in the litigation can have a bearing on the assessment of the reason for the delay and on the exercise of the court’s discretion under Rule 48.13. Rule 24, which addresses motions to dismiss for delay, has no bearing on Rule 48.14 status hearings. 

A party seeking to dismiss an action at a Rule 48.14 status hearing does not usually present affidavit evidence. The usual practice is for the initial status hearing to proceed on the basis of oral submissions. If the judicial officer conducting the status hearing forms the view, on the basis of the oral submissions, that the action is vulnerable dismissal for delay, ordinarily a full hearing will be ordered on affidavit evidence.

Bolohan v. Hull, 2012 ONCA 121 (rule 48.14 – action not on trial list)

CIA Inspection Inc. v. Dan Lawrie Insurance Brokers Ltd., 2011 ONCA 706 (rule 1.04 – proportionality)

Judgement Released: November 7, 2011   Link to Judgment

In upholding an award of partial indemnity costs said to be “virtually the same” as a substantial indemnity award, the Court of Appeal held, among other things, that “while the trial judge did not specifically refer to R. 1.04(1), and while there may be some disproportionality in the amount of costs awarded, the trial judge’s reasons make it clear he had the proportionality principle in mind.”

CIA Inspection Inc. v. Dan Lawrie Insurance Brokers Ltd., 2011 ONCA 706 (rule 1.04 – proportionality)