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The Ontario Court of Appeal set aside summary judgment in a greenhouse insurance dispute, holding the motion judge misapplied causation analysis and failed to resolve key factual issues.
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 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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Trial judge found plaintiff's accounts internally inconsistent and inherently implausible, and materially contradicted by credible third‑party witnesses (particularly Mendel and Boyetchko) who described prolonged consensual interactions; on balance of probabilities first touching was consensual and second violent battery was not proven; further, even assuming liability, medical evidence did not establish on a balance of probabilities that the alleged second battery caused the claimed concussion/epilepsy; claim therefore dismissed.
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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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By the end of October 2025 the aggregate of discovery and expert evidence exposed fundamental gaps in the plaintiff's case (notably absence of evidence to establish the applicable standard of care and causation) such that the March 6, 2023 walk-away offer ought reasonably to have been accepted by that time; therefore defendants are entitled to Scale B costs to October 31, 2025 and double costs thereafter, plus costs of the application.
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The trial judge erred by applying specific negative contingency deductions to non-pecuniary, past and future earning capacity awards without firm evidentiary grounding or proper legal analysis; the Court of Appeal allowed the appeal, set aside those contingency deductions and substituted higher awards: non-pecuniary $175,000; past loss of earning capacity $325,000; future loss of earning capacity $400,000.
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The court found on the balance of probabilities that (1) the Baker defendants were 100% liable for the First Accident (left turn into oncoming lane), (2) Gerrard admitted and was fully at fault for the Second Accident, and the defendants are equally responsible for damages; (3) the plaintiff suffered soft tissue injuries and developed Somatic Symptom Disorder with psychiatric overlay attributable to the accidents but CRPS was not established; (4) the plaintiff is disabled from the workforce but exaggerated functional limitations, so damages are reduced from plaintiff's projections; (5) awards…
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