The LAT held that the golf cart is not an “automobile” because the subject accident did not take place on a “common and public driveway”.  As such, the applicant was prohibited from launching an accident benefits claim.

The bleak future of MVA general damage awards in Ontario.

After an action has been set down for trial, leave to conduct a further examination for discovery will be granted when there has been a “substantial or unexpected change in circumstances.” The plaintiff’s deterioration in health and subsequent surgery, if reasonable extensions of injuries present prior to setting the action down, will not satisfy this test.

The Minor Injury Guideline is Found Unconstitutional

The Court dismisses the Defendants’ motion to strike the paragraphs in the amended Statement of Claim which assert a claim under the Fraudulent Conveyance Act.

This decision arises from a motion to remove Counsel of Record, Brennan Kahler and Gary Will, for the minor Plaintiff due to conflict of interest as they had previously also represented his parents whom the Defendants had counterclaimed against.

Where the party to be examined resides outside of Ontario, the test for determining the location of the examination for discovery is what is just and convenient for all parties based on the circumstances of the case.

In this decision, the Court of Appeal upheld a Divisional Court’s reasoning regarding limitation periods for applying for FSCO mediation.

Review of the law on the interpretation of exclusion clauses.

This summary judgement motion concerned issues of witness credibility and the evidentiary requirements of proving entitlement to the OPCF-44R Family Protection Endorsement

Following a jury Trial in which the Plaintiff recovered $68,250 in damages, Justice Salmers ruled on the quantum of costs and disbursements to be paid by the Defendant.  Specifically, the Court commented on whether the Plaintiffs’ disbursement in purchasing adverse costs insurance ought to be payable by the Defendant.

In a recent decision out of British Columbia, the Court ordered a punitive damage award of $350,000 against ICBC. The decision of Arsenovski v. Bodin underscores the importance of an insurer’s responsibility to act in good faith when undertaking claim investigations. In Arsenovski, the Court found the insurer acted maliciously and negligently in its investigation. The case reinforces the fact that insurers should reassess their position in response to new information and evidence to ensure they are acting reasonably and in good faith to their insureds.

In this Divisional Court decision, a three-judge panel considered whether the applicant was entitled to Statutory Accident Benefits after being involved in an ATV accident while in British Columbia (“BC”).

The Court of Appeal held that Section 33(4)3 of the Statutory Accident Benefits Schedule does not require an insurer to give a specific reason for requesting an Examination under Oath of the claimant.

This appeal concerned the nature of the notice an insurer must give to examine an applicant for accident benefits under oath. Section 33 (2) says the applicant “shall” submit to an examination under oath if requested. Section 33 (4) (3) requires an insurer to give the applicant advance notice of the “reason” for the examination. Relying on the latter, some applicants demanded their insurer provide reasons in the sense of a justification that they attend an examination under oath.

This was an appeal of a preliminary issue application commenced by the insurer to determine if the applicant was entitled to accident benefits under the SABS. The question before the court was whether s.279 of the Insurance Act could be circumvented in this manner.

Court of Appeal provides refresher with respect to limitation periods and municipal notice periods in cases dealing with minors.

This refusals motion concerned a plaintiff’s request for the statutory third party’s file contents, including the defendant’s first statement to his liability insurer and all correspondence between the defendant and his liability insurer. TD, the statutory third party (when the motion was heard), refused production on the basis of litigation privilege. The plaintiff’s motion was defeated.

Honest belief of valid insurance found despite cash and barter deal; lay witness testimony sufficient to show proof of economic loss.

The Occupiers’ Liability Act does not create a standard of perfection or presumption of negligence against occupiers whenever individuals are injured on their premises. Rather, a plaintiff must be able to point to some act, or failure to act, on the part of the occupier which caused or contributed to his or her injury before liability will be established.

On the defendant’s summary judgment motion over the limitation period in this class action the plaintiff was granted partial judgment for breach of fiduciary duty.

Despite serving the co-defendant to the point of intoxication and breaching their obligations under the Liquor License Act, the Court found no liability on the part of the bar for damages sustained by the Plaintiff in an assault and battery.

The Court of Appeal has upheld a trial judge’s decision finding the City of Sudbury negligent for failure to properly maintain a roadway during inclement winter conditions. Cities (and by extension winter maintenance contractors) are expected to respond to the potential of ice forming on roadways even while maintenance is underway. Even in the face of a roadway being cleared just prior to an accident a City may be found to have breached the standard of care in discharging a City’s obligation to maintain the roadway in good repair.

Superior Court Threshold Motion in which the plaintiff established that their impairments (including chronic pain disorder) constituted permanent serious impairment of important physical, mental or psychological function as a result of a motor vehicle collision

Summary Judgment for Failure to Give Notice under s. 44(10) of Municipal Act

Revision of the Traditional Deductions in Calculating Quantum of Damages

The Court of Appeal orders a new trial after finding the trial judge failed his gatekeeper duties in allowing Dr. Monte Bail’s testimony.

Nurses found liable for injuries to child suffered at birth – $5.2 million dollars awarded

Dismissal of constitutional Challenge to the LAT and restrictions on pre-trial MVA income loss.

Defendant brought Third Party claim against home owner, but failed to serve the Third Part Claim. Defendant’s motion to validate service was dismissed. Court was not satisfied that statement of claim came to third party’s attention. Motion judge found personal service was important because third party’s potential liability far exceeded limits of her policy. Defendant appealed and this appeal was dismissed as the interests of justice did not require dispensing with service.

PJI Amendment is Not Retroactive and Costs Incurred Pursuing ABs May be Paid by Tort Defendant

Costs on a Motion – Allegations that impugn the professional integrity of opposing counsel and are unproven warrant a punitive award of costs and will result in an award on the substantial indemnity scale.

The Court of Appeal dismissed an appeal granting summary judgement against a plaintiff for damages arising from a rear-end motor vehicle accident.

Municipality found partially liable for motor vehicle accident resulting in quadriplegia

Settlement approval motion rejected due to claims not being fully delineated in motion materials

The cooling off period applies for accident benefit settlements in litigation if settlement disclosure notice forms part of the written release.

Duty of insurer to defend or indemnify

Released November 13, 2015 | Full Decision [CanLII] Note:  not yet available on CanLII There are 3 good reasons to do careful mathematics before resolving a case, drafting an offer to settle or going to trial: deduction of collateral benefits; the statutory deductible for General and FLA damages; and the applicable pre-judgment interest rate. In Cobb, a $220,000 jury verdict, broken down below, was virtually …

Amendment to PJI Rates & SABS Calculations Applicable to 3rd Party Claims. These companion Judgments are appeals dealing with, among other issues, pre-judgment interest and SAB claw-back’s in 3rd party claims  

LAT deems spinal cord injury caused by parked car to be an “accident” for purposes of SABS.

A plaintiff need not know that a defendant’s act or omission was culpable in order for the loss it causes to be discovered.

Superior Court Judge invalidates waiver on the basis of violation of the Consumer Protection Act

Injuries sustained while maintaining vehicle may be an “accident” within the meaning of the SABS.

Added Pleas Constitute a New Cause of Action and are Limitation-Barred

Summary Judgment Motion – Changes to the attendant care benefit that came into force on February 1, 2014 only apply to accidents on or after February 1, 2014.

This was a motion by the Plaintiff to compel productions and attendance at examinations for discovery of an insurance broker after the matter had been set down for trial in which conflicting authorities were reviewed.

Clarification of test for granting leave after trial record filed under rule 48

Spilling hot coffee in a drive-through is an “accident” under s.3(1) of the SABS Released October 24, 2017 | Full Decision [CanLII] The Plaintiff spilled hot coffee on her lap while in McDonald’s drive-through. Her car was in gear at the time, but not moving. There was no other vehicle involved in the spill. She was wearing her seatbelt and could not take evasive action …

Released July 2, 2015 | CanLII This lawsuit was commenced in relation to the violation of a publication ban by the defendant, Sun Media Corporation, after a long and complex criminal proceeding involving Gregory Last, accused of various offences including sexual assault. Briefly, the accused was convicted in 2005, lost on appeal, but had his convictions set aside by the Supreme Court of Canada in 2009.  The …

Released September 21, 2015 | Decision Dube permitted relief from forfeiture for a disabled employee who failed to give proof of claim within the 90-day period under his employer’s group policy.  The Court of Appeal provides a victim-friendly analysis under the relief from forfeiture test. In Dube, the Plaintiff was injured in an accident in May 2010. His employer advised him that he was ineligible …

In this MVA summary judgment motion, the court found that the plaintiff’s conviction of “failure to yield” under the Highway Traffic Act did not resolve the issues of liability in the civil action.

This is a Costs Hearing subsequent to the Judgment by Healey J., with respect to a Motor Vehicle Accident Claim with a particular focus on SABS deductibility Released March 7, 2017 | Full decision [CanLII] Two of the most pressing issues to be decided by the Court were: The amount, if any, of any deduction for collateral benefits to be made from Meaghan Dunk’s award; The scale …

Where trial counsel employs inflammatory and inappropriate language in their closing, a clear and strong jury charge may obviate the need for a mistrial. Further, where a party fails to provide a Rule 53 report in adherence with the Rules, that expert’s evidence will be limited in scope.

Court of Appeal upholds application judge’s finding that a trip over parked motorcycle qualifies for SABS.

This is a motion for leave to appeal from a motion for summary judgment and documentary productions

Court of Appeal dismisses appeal of charging order alleging judicial bias

If an insurer fails to comply with the notice requirements at section 38(8) of the SABS, the relief in section 38(11) is mandatory and the insurer is prohibited from making a MIG determination on the applicant’s claim.

Lawyers can be held personally responsible for costs when a lawyer breaches his or her duty as an officer of the court and abuses the processes of the court.

Court rules ATE policies must be produced.

Adverse costs insurance policies must now be produced pursuant to rule 30.02(3).

An unsuccessful motion to add defendants more than 4 years after the incident with helpful comments about reasonable due diligence.

Released Semptember 23, 2015 | Full decision [OTLA Document Bank] This was a motion before the Divisional Court for leave to appeal an order dismissing a summary judgment motion. The defendant, Elizabeth Carroll had pleaded that she was driving her mother, the defendant Celina Carroll’s car with permission.  Apart from the presumption of permission, all other evidence, including the sworn testimony of both defendants on …

A plaintiff’s claim against her own Ontario-based automobile insurance company for uninsured/underinsured coverage is not a “real or substantial connecting factor” in establishing jurisdiction over an out-of-province motor vehicle tort claim

This is a motion for summary judgment in the context of the OAP-1’s unidentified motorist provisions.

In considering the issue of gross negligence by a city, the court looked at whether it was reasonably foreseeable that members of the public would enter the premises during the winter season. If it is, the city must provide a reasonable level of winter maintenance, post notice that maintenance had ceased, or block access to the premises. However, the court will also look at whether enough snow has fallen that a reasonable observer would conclude that the premises are no longer in use and/or not being maintained and, at that point, the city may reasonably cease all maintenance on the premises as there would be no good reason to believe that anybody will use it.

Court of Appeal upholds trial decision apportioning liability 20% as against City Bus with right-of-way, which collided with a vehicle running a ran light.

Court is not required to determine whether a plaintiff’s injuries meet threshold for non-pecuniary general damages and health care costs under s. 267.5(15) of the Insurance Act if the amount awarded for pain and suffering is zero.

An LTD insurer is entitled to reduce the amount of LTD payments under a group insurance plan by the amount of the non-earner benefit the insured person is receiving, so long as the accident benefits insurer is not deducting LTD payments from the amount of the NEB payable.

This was a motorcycle vs. recycling truck collision where the parties agreed that the Plaintiff motorcyclist’s damages were $8 million. The Plaintiff appealed the jury’s verdict that he was 100% liable for the collision. 

Summary judgment granted where the Plaintiff could not produce objective evidence of an unsafe condition resulting in her slip and fall.

The Court of Appeal for Ontario held that a Minnesota tortfeasor with only $500,000 liability limits is an “inadequately insured motorist” under the Family Protection Endorsement (OPCF 44R) in Ontario, where the 44R limits are $1 million.

Judge upholds Master’s decision not to order production of settlement release related to prior motor vehicle accident litigation.

Coverage decision about “use or operation of an automobile”

Court of Appeal speaks to the Difference between Litigation Experts & Participant Experts (and the exception to complying with Rule 53.03)

The Court ordered that it was just and convenient to conduct examinations for discovery by way of video conference based on Rule 1.04 and Rule 37.04. The Midland decision clearly states that where a party resides outside of Ontario, neither party has a prima facie right with respect to the place of examination. Equally, there is no presumption for or against video conferencing. The test for determining the location of examinations is what is just and convenient for both parties based on circumstances of the case.

A recent decision from the LAT has given claimant’s counsel some direction regarding the procedure for appointing a litigation guardian for an incompetent applicant.

Once the plaintiff has proven that a rear-end collision occurred, the evidentiary burden shifts from the plaintiff to the defendant, who must then show that he or she was not negligent.

This case addresses whether the abuse of process doctrine prevents the appellant from leading evidence in subsequent arbitration, subject to a previous finding of fact by another court; enlivening the principle of ‘evidence to the contrary’.

The standard of care applicable for drivers in emergency situations is not a standard of perfection. The doctrine of emergency will be applied where the harm is “imminent and unforeseen”.

This fire loss trial resulted in an award to the plaintiff for its losses under the policy, extended profits losses due to insurer delay and a punitive award to denounce the high handed insurer behavior in delaying payment two years.

Adverse costs insurance policies need not be produced in their entirety where the insured is the law firm and not the plaintiffs. To require disclosure would require a breach of the solicitor-client privilege of other clients covered under the policy.

Court awards $11,300 in costs where late served surveillance leads to a mistrial and an adjournment.

Released September 28, 2015 | Full Decision [OTLA Document Bank] This was a summary judgment motion seeking to dismiss the action against the defendants, Economical Insurance Group and its subsidiary, Perth Insurance Company.  On July 5, 209, the plaintiff, Dimitar Jeliazov was struck on his motorcycle by an unidentified motorist.  He had taken possession of the motorcycle on June 29, and had not yet informed …

This is a post-verdict motion dealing with, among other issues, the assignment of future sabs which the plaintiff may be entitled.

Motion for the production of non-party Children’s Aid Society’s file is speculative and an unmeritorious fishing expedition that amounts to an unwarranted invasion of privacy.

The Court is set to consider whether payors of automobile insurance premiums should be excluded from sitting on juries and intervening parties are set to weigh in to assist the Court in making a determination.

Released December 29, 2014 | Decision Kassburg imposes on insurers a duty to communicate a clear and unequivocal denial of a claim in order to trigger the limitation period under the Limitations Act 2002.  It also ruled that LTD contracts are not “business agreements.” Ms. Kassburg stopped working due to disability in October 2007, submitted her LTD claim in April 2008 and was denied benefits …

This was a defendant’s motion for an order pursuant to Rule 19.03 of the Rules of Civil Procedure setting aside the noting of default and allowing him to file a statement of defence. The motion was granted after Maramger J. reviewed principles the Court will take into account when exercising its discretion to set aside and order noting a party in default.

This is an Appeal from Summary Judgment asking whether the motion Judge erred in concluding that a termination clause in the employment contract was unenforceable for lack of consideration.

To ensure trial fairness and the preservation of proper litigation, it was justified to impose a condition to ensure that expert reports are written solely by their author and not by a ghost writer, as has become more common and problematic in litigation recently.

This decision concerns a request to add issues to an arbitration proceeding resulting from an Application for Arbitration, filed February 18, 2016.

This is a summary judgment motion brought by the Defendant for a determination that the Plaintiff is statute barred from commencing an action beyond the two year period from the date of denial.  Here, the Plaintiff applied for LTD benefits from the Defendant and received monthly payments from September 2008 through October 2010.  The Plaintiff was denied benefits in October 2010 following obtaining the results …

In motions to exclude one party from another party’s discovery, the onus is on the party seeking the exclusion order to demonstrate that there is a risk that evidence will be tailored.

Court of Appeal reverses 1 year limitation imposed by SCJ for some Occupier’s Liability claims

Denied motion for summary judgment about tavern liability.

Barrie jury returns $7 million verdict for young plaintiff in an action against school bus company.

This is a motion to withdraw an admission made during oral submissions at a previous summary judgment motion and to amend certain paragraphs of that summary judgment decision.

A municipality will only be liable for failing to salt and clear road of snow where it had actual or constructive knowledge that road conditions create unreasonable risk of harm to users of a highway, and where the municipality unreasonably neglected that risk. Furthermore, in determining the proper reasonable response, municipalities should not be limited in their response by the minimum maintenance standards. Municipalities should consider the circumstances and determine if the condition of the road poses an unreasonable risk of harm to reasonable drivers. Whether municipality’s actions are reasonable or not depends in part on resources that were available to the municipality.

Recent decision about the right to commence actions and arbitrations post-April 1, 2016

Justice Corthorn dismissed the defendant doctor’s motion for leave to bring a motion for summary judgment at the beginning of the second week of trial.

A recent LAT decision was overturned and the law regarding compliance with the notice requirement under section 44 (for insurers’ examinations) was clarified.

A marginal expansion of the upper limit of damages for loss of care, guidance, and companionship for the loss of an adult sibling.