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The motions judge correctly concluded, after a holistic review, that the statement of claim was incoherent, lacked material facts and any reasonable cause of action, and that no amendment could cure its radical deficiencies; the discretionary decision to strike without leave to amend was not shown to be erroneous and the appeal is dismissed.
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Ontario Court of Appeal dismissed a broad challenge by healthcare workers to COVID-19 vaccination policies, striking the claim as an abuse of process and for no reasonable cause of action.
The appeal is allowed because the Athletic Commissioner Act and its regulations do not, expressly or by implication, create a private law duty of care to individual athletes, and SFU's amended third party notice fails to plead the material facts necessary to establish proximity (the key basis for a novel duty). Bare allegations that the regulator knew or ought to have known of contraventions are insufficient; therefore the third party notice is plain and obvious to fail and must be struck (without prejudice to SFU applying to refile if material facts are available).
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The appeal was dismissed because the trial judge did not err in her jury instructions or in admitting the Alberta statement of claim for limited non‑truth purposes, the judge properly answered the jury's question directing them to consider the totality of the evidence and burden of proof, counsel's remarks did not warrant a mistrial and, critically, the jury's verdict on liability is supportable on a reasonable view of the evidence and therefore is owed deference.
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Appeal dismissed: trial judge's factual findings and credibility assessments were supported by the evidence and not palpably overriding; Ndax met any applicable standard of care by providing multiple warnings, personal inquiries and independent risk analysis, and appellant failed to prove causation; fresh evidence excluded for lack of due diligence and lack of material bearing on decisive issues.
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The Court has jurisdiction to consider applications to amend leave applications after the s.60 30-day period, but must refuse amendments that are so significant they effectively constitute an application for extension of time; the proposed amendments here fundamentally reframed the appeal and therefore were dismissed as an impermissible extension of time.
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The court held that while the amendments did not create a new cause of action, they introduced a new head of damages (physical pain and health effects) that raises causation and mitigation issues necessitating review of extensive medical records and re-discovery; accordingly a conditional costs award approximating the Defendant's reasonable additional expenses ($20,000) was appropriate unless the Plaintiff discontinues those damage claims within the prescribed timeframe. Separately, the Plaintiff's voluminous, repetitive and often inadmissible affidavit material, inadequate preparation and re…
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Defendant liable for rear-end collision; on balance the court preferred the plaintiff's neurosurgical and psychiatric experts (Drs. Heran and Waisman) over the defendant's experts and found the MVA caused chronic left-sided neck/shoulder pain (including probable TOS and ulnar neuropathy/double crush), cervicogenic headaches and materially exacerbated pre-existing PTSD and major depressive disorder leading to somatic symptom disorder; plaintiff entitled to damages assessed by a capital approach for loss of earning capacity with contingencies and specific awards for non-pecuniary loss, housekee…
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Court accepted plaintiff's credibility and reliability overall, found MVA1 caused MTBI (resolved), chronic soft tissue injuries to neck/right upper back/shoulder, cervicogenic chronic headaches, disrupted sleep and mood/personality changes; MVA2 produced only brief aggravation; plaintiff unlikely to have significant lasting improvement; plaintiff failed to prove past loss of earning capacity due to insufficient evidence of lost side-work opportunities, but proved a real and substantial possibility of future pecuniary loss due to loss of capacity and the changed employment circumstances; capit…
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Defendants admitted liability for assault, battery, false arrest and false imprisonment; on the evidence the guards used excessive and unjustified force causing compensable physical injury and chronic PTSD; plaintiff did not fail to mitigate; aggravated harm is reflected in an augmented non-pecuniary award; Paladin's training and investigatory failures constituted conduct referable to the employer warranting punitive damages against Paladin alone; damages quantified accordingly.
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