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.
Summaries Category Archives
Abdulwasi v Pietrantonio, 2017 ONSC 3608
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.
Abu-Hmaid v. Napar, 2016 ONSC 2894
This Master’s decision holds that a plaintiff must disclose the existence, but not particulars, of adverse costs protection at examination for discovery.
Abuajina v. Haval, 2015 ONSC 7938 (CanLII)
Summary judgment motions on the issue of liability are not appropriate where the credibility of witnesses are important, there is insufficient evidence on the record to evaluate credibility and a mini-trial is not appropriate in the circumstances of the case.
Abyan v. Sovereign General Insurance Company, FSCO A16-003657
The Minor Injury Guideline is Found Unconstitutional
Ahmed v. Rowe, 2017 ONSC 2289
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.
Aleksa v. Henley, 2017 ONSC 1117
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.
Ali v. Gibbons 2017 ONSC 5013
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.
Allstate Insurance Company of Canada v. Klimitz, 2015 ONCA 698
In this decision, the Court of Appeal upheld a Divisional Court’s reasoning regarding limitation periods for applying for FSCO mediation.
Anderson v. Confederation College, 2017 ONSC 5791
Review of the law on the interpretation of exclusion clauses.
Anjum et al. v. Doe et al., 2015 ONSC 5501 (S.C.J)
Released September 3, 2015 | Full Decision Judge orders summary judgment motion to proceed with viva voce evidence This was a personal injury claim arising from a car accident. The plaintiff suffered catastrophic injuries. He claimed that an unidentified vehicle caused the accident and fled the scene. He then sued his own insurance company for unidentified motorist coverage. The insurer announced its intention to bring a …
Anjum v. John Doe and State Farm, 2016 ONSC 7784 (CanLII)
This summary judgement motion concerned issues of witness credibility and the evidentiary requirements of proving entitlement to the OPCF-44R Family Protection Endorsement
Aquatech Logistics et al. v. Lombard Insurance et al., 2015 ONSC 5858 (CanLII)
Released September 23, 2015 | Full Decision Justice Dunphy ordered that three insurance companies had the duty to defend. The Application was brought by Aquatech and one of its insurers, Aviva (provider of the automobile policy), against two of Aquatech’s liability insurers: Lombard – provided a $3 million Comprehensive General Liability Policy; ACE INA – provided a $1 million Pollution Incident Liability Insurance The purpose …
Arcari v. Dawson, 2016 ONCA 715
Plaintiff’s Appeal From Unsuccessful Motion To Add Defendants 6 Years After Collision Statute-Barred: A Review Of Limitation Periods
Armstrong v. Lakeridge Resort Ltd., 2017 ONSC 6565
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.
Arruda and Western Assurance Company, FSCO A13-003926
Released July 7, 2015 | Full Decision This decision by Arbitrator Jeffrey Shapiro makes clear that a diagnosis of chronic pain syndrome can remove an insured from the Minor Injury Guideline (the “MIG”). The arbitration concerned a motor vehicle accident which occurred on May 5, 2012. The insured sustained soft tissue and psychological injuries and was placed in the MIG. After depleting the maximum funding …
Arsenovski v. Bodin, 2016 BCSC 359
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.
Arunasalam v. State Farm Mutual Automobile Insurance, 2015 ONSC 5235
Released August 20, 2015 | CanLII This Superior Court decision involved a motion brought by a defendant for an order requiring the plaintiff to attend defence orthopaedic and psychiatric examinations. The plaintiff was involved in two motor vehicle accidents in 2006 and 2009. The pleadings and the available medical evidence indicated that the plaintiff’s physical and psychological impairments were matters at issue in the proceeding. …
Aviva Insurance Company of Canada v. McKeown, 2016 ONSC 6017 (CanLII)
SABS insurers must provide a specific reason for an EUO request before being entitled to it.
Aviva Insurance Company of Canada v. McKeown, 2017 ONCA 563
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.
Aviva Insurance Company of Canada v. McKeown, 2017 ONCA 563 (CanLII)
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.
Ayr Farmers Mutual Insurance Co v. Wright, 2016 ONCA 789
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.
Azzeh v. Legendre, 2017 ONCA 385
Court of Appeal provides refresher with respect to limitation periods and municipal notice periods in cases dealing with minors.
Babcock v. Destefano, 2016 ONSC 5352
Defendant’s Motion for DMEs Dismissed, while also Chastised for Not Taking Pre-Trial Preparations Seriously
Badesha v. Haider, 2017 ONSC 1745
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.
Bakir and Dominion of Canada General Insurance Company (FSCO A12-002657)
Honest belief of valid insurance found despite cash and barter deal; lay witness testimony sufficient to show proof of economic loss.
Baltadjian v. Roman Catholic Episcopal Corporation for the Diocese of Alexandria, 2017 ONSC 61
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.
Baradaran v. Alexanian 2016 ONCA 533
The Court of Appeal confirmed that it is inappropriate to treat a motion to strike portions of a Statement of Claim as a summary judgment motion by examining evidence on the merits of the action.
Barker v. Barker, 2017 ONSC 3397 (CanLII)
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.
Baron v. Clark, 2017 ONSC 738 (CanLII)
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.
Basandra v. Sforza, 2016 ONCA 251(CanLII)
Appeal of a judge’s decision to reduce the jury’s awards pursuant to s. 267.8 in the absence of clear evidence of quantum.
Batoor v. State Farm Mutual Automobile Insurance Company, FSCO A13-007600
This is a preliminary issue hearing as to whether the applicant, Hiwad, should be excluded by section 31(1)(a)(i) of the Statutory Accident Benefits Schedule from claiming certain accident benefits as a result of operating an uninsured automobile.
Belanger v. Sudbury (Regional Municipality), 2017 ONCA 428
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.
Benhaim v. St-Germain, 2016 SCC 48
In a 5-4 decision, the Supreme Court of Canada held that a trial judge is not required by law to draw an adverse inference against physicians whose negligence makes it impossible to prove causation and where the plaintiff adduces at least some evidence of causation. Trial judges are permitted to draw such inferences, but are not required to do so.
Bhatt v William Beasley Enterprises Limited, 2015 ONSC 4941 (CanLII)
Released August 10, 2015 | CanLII This is a brief decision addressing whether counsel must produce dockets when the issue of costs is being considered after a trial. This issue arose after the Plaintiffs were successful at trial and awarded $305,000.00 for damages, inclusive of interest. The damages award was more than double the amount of the Defendant’s formal Offer to Settle. This was a judge alone …
Bhatt v. William Beasley Enterprises Limited, 2015 ONSC 2168
Released June 12, 2015 | CanLII This is a judge alone trial decision. The trial proceeded before Mr. Justice Faieta in March 2015. The minor Plaintiff was injured while boarding a ride with his father at the Centreville Amusement Park. The Defendant advanced the argument that there was contributory negligence on both the minor Plaintiff and his father in part because he had a pre-existing …
Bishop-Gittens v. Lim, 2016 ONSC 2887
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
Bishop-Gittens v. Lim, CV-11-00107056-0000
In considering the issue of costs, factors taken into account include: 1) the rates charged and the hours spent by the plaintiff’s counsel; 2) the amount claimed and the amount recovered by the plaintiff; 3) the complexity of the proceeding and the importance of the issues; 4) the conduct of any party that tended to shorten or lengthen the proceeding; 5) whether the action should have been brought under the simplified rules pursuant to Rule 76; and 6) the reasonableness of the costs.
Bonaccorso v. Optimum, 2016 ONCA 34
A Temporary Return to Work Does Not Extend Two Year Limitation Period Triggered by Denial of Income Replacement Benefits
Bonilla v. Great-West Life Assurance Co. et al, 2016 ONSC 2249 (CanLII)
Additional reasons on costs following successful summary judgment motion by second defendant, CIBC. CIBC argued for substantial indemnity on basis of Offers to Settle.
Bourassa v Temiskaming Shores (City), 2016 ONSC 1211
Summary Judgment for Failure to Give Notice under s. 44(10) of Municipal Act
Brake v. PJ-M2R Restaurant Inc., 2017 ONCA 402
Revision of the Traditional Deductions in Calculating Quantum of Damages
Brown v. Baum, 2016 ONCA 325
The Ontario Court of Appeal held that, in circumstances where the plaintiff’s doctor continued to treat the plaintiff and engage in good faith efforts to remediate damage, the plaintiff did not know that it was appropriate to start an action against the doctor until after the last surgery proved unsuccessful.
Bruff-Murphy v. Gunawardena, 2016 ONSC 7
This decision concerns a threshold motion following final instructions to the jury for an order striking the plaintiff’s claim for general damages on the basis that she failed to prove she suffered permanent and serious impairment of an important physical, mental or psychological function pursuant to s. 267.5 of the Insurance Act, R.S.O. 1990 Chapter I.8, as amended, including Ontario Regulation 381/03, made therunder. The motion was defeated.
Bruff-Murphy v. Gunawardena, 2017 ONCA 502
The Court of Appeal orders a new trial after finding the trial judge failed his gatekeeper duties in allowing Dr. Monte Bail’s testimony.
Bustamante v. The Guarantee Company of North America, 2015 ONCA 530 (CanLII)
Released July 13, 2015 | CanLII This is an appeal by the Plaintiff from the judgment of Ramsay J., granting summary judgment and dismissing the Plaintiff’s claim for non-earner benefits (“NEBs”) as time-barred. At the time of the accident on June 3, 2004, the Plaintiff was a hairdresser. She elected income replacement benefits (“IRBs”), although her disability certificate indicated that she was entitled to both IRBs …
Butler v. Royal Victoria Hospital, 2017 ONSC 2792
Nurses found liable for injuries to child suffered at birth – $5.2 million dollars awarded
Campbell v. Bruce (County), 2016 ONCA 371
The Court of Appeal upheld the trial decision of Justice M.A Garson. The County of Bruce (Bruce) as occupier, was liable for the Plaintiff’s injuries for failing to take reasonable care. No damages were dealt with at trial.
Campisi v Ontario, 2017 ONSC 2884
Dismissal of constitutional Challenge to the LAT and restrictions on pre-trial MVA income loss.
Cardenas v. Toronto (City), 2017 ONCA 237
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.
Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited 2015 ONCA 592 (CanLII)
Released September 2, 2015 | CanLII In August 2006, a fire spread from land owned by the respondent, Canadian Pacific Railway Ltd. (“CPR”), to land owned by the applicant, Carioca’s Import & Export (“Carioca”). Carioca alleged that the fire spread due to CPR’s negligence and claimed against CPR for the alleged damage that it caused. In June 2009, Carioca set the action down for trial, and …
Carr v. Modi, 2016 ONSC 7255
PJI Amendment is Not Retroactive and Costs Incurred Pursuing ABs May be Paid by Tort Defendant
Cassidy v. Belleville (Police Service), 2015 ONCA 794
Waiting for an investigation to be completed does not extend the limitation period
Castronovo v. Sunnybrook & Women’s College Health Sciences, 2016 ONSC 6275 (CanLII)
An extension of time to amend a pleading will not always be granted, especially if it will cause undue delay.
Chambers v. Cobb, 2015 ONSC 5313
Released August 24, 2015 | CanLII This Superior Court decision involves two summary judgment motions brought by two defendants to dismiss the action against them on the basis of liability. The action arose from injuries the plaintiff sustained to his left ankle while operating a tractor on a steep embankment of a cottage property. While the plaintiff was moving rocks on the property, the tractor flipped …
Charlebois v. SSQ Life Insurance Co., 2015 ONSC 6231
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.
Charlebois v. SSQ Life Insurance Company, 2015 ONSC 2568
Released May 29, 2015 | CanLII This was an appeal of an order dismissing SSQ’s motion to remove plaintiff’s counsel in a disability claim against SSQ. The motion was brought by SSQ after it learned that plaintiff’s counsel had retained two medical experts who had been consulted by SSQ regarding the plaintiff’s treatment needs prior to litigation. SSQ argued that the two experts, an occupational …
Chernet v. RBC General Insurance Company, 2017 ONCA 337
The Court of Appeal dismissed an appeal granting summary judgement against a plaintiff for damages arising from a rear-end motor vehicle accident.
Chiocchio v. Ellis, 2016 ONSC 7570
Municipality found partially liable for motor vehicle accident resulting in quadriplegia
Choma v. City of Toronto, 2016 ONSC 5510
Given a proper evidentiary record, a Court may draw reasonable inferences and grant summary judgment in favor of a party who is seeking to prove that, on the balance of probabilities, an event is unlikely to have occurred, so long as the party can show that it exercised due diligence and that a trial would not change anything in that regard or show different evidence.
Clarke v. Argosy Securities, 14-62625 (ONSC)
Settlement approval motion rejected due to claims not being fully delineated in motion materials
Clarke v. Faust, 2016 ONCA 223 (CanLII)
Solicitor’s Negligence Action not statute barred as a result of discoverability.
Clatney v. Quinn Thiele Mineault Grodski LLP, 2016 ONCA 377
In special circumstances, the Court of Appeal has jurisdiction to reopen contingency fee agreements that have been paid and order an assessment to be conducted to ensure public confidence in the administration of justice.
Co-operators General Insurance Company v. Doobay, 2017 ONSC 5804 (CanLII)
The cooling off period applies for accident benefit settlements in litigation if settlement disclosure notice forms part of the written release.
Coachman Insurance Co v. Kraft, 2017 ONSC 1875
Duty of insurer to defend or indemnify
Cobb v. Long Estate, 2015 ONSC 6799
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 …
Cobb v. Long Estate, 2017 ONCA 717 & El-Khodr v. Lackie 2017 ONCA 716
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
Corbett et al v. Odorico, 2016 ONSC 1964 (CanLII)
Damages assessment, following jury verdict, in which the new statutory deductible was considered. Also provides commentary on threshold and Chronic Pain.
Corbett v. Odorico, 2016 ONSC 2961
Superior Court Motion for costs of trial by successful plaintiff. The sought costs exceeded the award recovered at trial. The court decides that over-emphasis on proportionality may serve to under-compensate a litigant for costs legitimately incurred
Cormack v Chalmers, 2015 ONSC 5564
Released September 8, 2015 | Full Decision This case involved a plaintiff who was badly injured when she was struck by a motor boat while swimming near a harbour entrance. She had been staying at a cottage owned by defendants Shannon Pitt and Erik Rubadeau (“Pitt defendants”) at the time. She brought claims against Benjamin Chalmers in his capacity as driver of the motor boat and …
Cormack v Chalmers, 2015 ONSC 5599
Released September 8, 2015 | Full Decision Following jury selection and prior to the commencement of trial, counsel sought a ruling concerning the legal effect of the Apology Act. The plaintiff was badly injured when she was struck by a motor boat while she was swimming in close proximity to a harbour entrance. At the time the plaintiff went swimming, she was a guest of the …
Crompton v. City of Toronto, 2016 ONSC 3823 (CanLII)
The costs fallout of an abandoned summary judgment motion
D.E. v. Unifund Assurance Company, 2014 ONSC 5243
Related: Unifund Assurance Company v. D.E., 2015 ONCA 423 Released September 11, 2014 | CanLII This was an application for a declaration that Unifund Assurance Company (“Unifund”) had a duty to defend and indemnify the applicants under a homeowner’s property insurance policy. The applicants were a married couple who lived with their minor daughter in Toronto. The daughter and parents were all sued as defendants in a lawsuit …
D.S. v. TD Insurance Meloche Monnex, 16-000131-AABS
LAT deems spinal cord injury caused by parked car to be an “accident” for purposes of SABS.
Dabor et al. v. Southbram Holdings Limited et al. (CV-11-417735)
This verdict serves as a warning to owners and occupiers of properties that they must ensure they have the right person to do the job and that their premises must be safe for the work intended to be performed.
Daggitt v. Campbell, 2016 ONSC 2742
This decision opens the door, albeit in obiter, to precluding experts with prior judicial findings of bias from conducting defence medical examinations and giving evidence at trial.
Dale Cox and Aviva Canada Inc., FSCO A13-012588
Released July 3, 2015 | Full Decision The Applicant was riding his bicycle in Burlington, Ontario, when an unidentified vehicle struck either him or his bike and he fell to the ground. The vehicle did not stop and there were no known witnesses. The Applicant’s bicycle was damaged to the point that he could not ride it home. The damage was seen by his wife and his brother-in-law. …
Dale v. Frank et al, 2017 ONCA 32
A plaintiff need not know that a defendant’s act or omission was culpable in order for the loss it causes to be discovered.
Dams v. TD Home and Auto Insurance Company, 2016 ONCA 4
This decision concerns the relief from forfeiture provisions at ss. 129 of the Insurance Act and 98 of the Courts of Justice Act. The provisions were invoked because the plaintiff, who was involved in a motor vehicle accident with an unidentified driver, failed to comply with the reporting requirements in s. 3 of the Schedule attached to the Uninsured Automobile Coverage regulation under the Insurance Act (the “Schedule)”.
David Schnarr v. Blue Mountain Resorts Limited, 2017 ONSC 114 (CanLII)
Superior Court Judge invalidates waiver on the basis of violation of the Consumer Protection Act
Davis v. Aviva Canada Inc, 2017 ONSC 6173
Injuries sustained while maintaining vehicle may be an “accident” within the meaning of the SABS.
Davis v. Wawanesa Mutual Insurance Company, 2015 ONSC 6624
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.
Denis v. Lalonde, 2016 ONSC 5960
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.
Denis v. Lalonde, 2016 ONSC 5960
Clarification of test for granting leave after trial record filed under rule 48
Dhawan v Wehbe, 2015 ONSC 6104 (CanLII)
Released October 15, 2015 | CanLII This motion concerns a plaintiff’s efforts to set aside an administrative dismissal order dated November 26, 2014 to permit reinstatement of the proceeding and to extend time to set the action down for trial. The action was commenced in 2008 and at the time of the motion, the plaintiff’s counsel missed deadlines to set it down. The defendant consented …
Dimopoulos v. Mustafa et al, 2016 ONSC 429
Threshold motion which considered competing Orthopedic expert reports. Court preferred more extensive, functional approach to impairment used by Plaintiff’s expert.
Ding et al v. John Doe et al, 2016 ONSC 1690 (CanLII)
Summary judgment was granted dismissing the Plaintiff’s action pursuant to the unidentified driver provisions of the Plaintiff’s policy.
Dittmann v. Aviva Insurance Company of Canada, 2016 ONSC 6429
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 …
Doe v. Sun Media et al, 2015 ONSC 4239 (CanLII)
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 …
Dube v. RBC Life Insurance Company, 2015 ONCA 641
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 …
Duncan v Taylor, 2015 ONSC 7186
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.
Dunk v. Kremer, 2017 ONSC 1547
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 …
Dunk v. Kremer, 2018 ONCA 274 (CanLII)
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.
Echelon General Insurance Company v. Ontario (Minister of Finance), 2016 ONSC 5019
This was an appeal of a preliminary award in which the arbitrator determined that an insurer’s policy had expired prior to the collision in question. The issue on appeal was whether an improperly cancelled policy remained in force.
Economical Mutual Insurance Company v. Caughy, 2015 ONSC 3251
Released June 10, 2015 | CanLII Patrick Caughy applied to Economical for accident benefits under his own motor vehicle policy, as a result of injuries he sustained on August 3, 2012. Economical brought an application for a determination as to whether Mr. Caughy had been involved in an “accident”, pursuant to section 3(1) of the Statutory Accident Benefits Schedule – effective September 1, 2010 (“the Schedule”). …
Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 (CanLII)
Court of Appeal upholds application judge’s finding that a trip over parked motorcycle qualifies for SABS.
Edwards v Camp Kennebec, 2016 ONSC 2501
In this settlement approval motion, plaintiff counsel’s fees were reduced from $793,500 to $225,000 because the contingency fee agreement was not compliant with the Solicitor’s Act
El-Khodr v. Lackie, 2015 ONSC 4766
Released July 28, 2015 | CanLII This decision concerns the calculation of prejudgment interest, whether the Court has jurisdiction to make an order pursuant to the trust and assignment provisions of the Insurance Act in the absence of a notice of motion and costs. It was released after the plaintiff, who was catastrophically injured in a motor vehicle accident, was awarded $2,931,006.00 by a jury. …
Ernewein v. Honda Canada, 2017 ONSC 3727
This is a motion for leave to appeal from a motion for summary judgment and documentary productions
Evans v. Canusa Automotive Warehousing Inc., 2015 ONSC 6406 (CanLII)
Released October 16, 2015 | CanLII This endorsement on costs concerns the plaintiffs’ effort to escape an adverse costs award after their action was dismissed following the defendants’ successful summary judgement motion. The plaintiffs requested there be no cost order on the basis of their impecuniosity, which they sought to substantiate by filing an affidavit stating they had accumulated debt and tax liabilities in excess …
Fancy Barristers P.C. v. Morse Shannon LLP, 2017 ONCA 82 (CanLII)
Court of Appeal dismisses appeal of charging order alleging judicial bias
Farhat v. Monteanu, 2015 ONSC 2119 (CanLII)
In this summary judgment motion, Perell J. of the Ontario Superior Court of Justice held that a person cannot always be expected to commence an action before he or she knows that the injuries surpass the threshold, which may not always be apparent on the date in which the accident occurred.
Ferawana v State Farm Mutual Automobile Insurance Co, 2016 CarswellOnt 14392
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.
Fernandes v. Araujo, 2015 ONCA 571
Released August 10, 2015 | CanLII After 62 Years, Court of Appeal Admits it was Wrong A five-judge panel of the Court of Appeal just over-ruled its own decision from 1953 on vicarious liability of the owner of a vehicle being driven on the highway. This week, the Court released its decision in Fernandes v. Araujo (2015 ONCA 571) about the liability of the owner of …
Ferreira v. St. Mary’s General Hospital, 2017 ONSC 6631 (CanLII)
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.
Fleming v. Brown, 2017 ONSC 1430 (CanLII)
Court rules ATE policies must be produced.
Fleming v. Brown, Court File no. 1220/15
Adverse costs insurance policies must now be produced pursuant to rule 30.02(3).
Fontanilla v. Thermo Cool Mechanical, 2016 ONSC 7023 (CanLII)
An unsuccessful motion to add defendants more than 4 years after the incident with helpful comments about reasonable due diligence.
Forestall v. Carrol, 2015 ONSC 5883 (CanLII)
Released September 23, 2015 | Full Decision Rarely will leave to appeal be granted from the decision to dismiss a summary judgment motion. Normally, the moving party lives to fight the issue on the merits another day. This was the rare case. The issue was discrete but central in the proceedings. It would speed the resolution of a long standing case. In 2005, a collision …
Forestall v. Carroll, 2015 CarswellOnt 14272
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 …
Forsythe v. Westfall, 2015 ONCA 810 (CanLII)
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
Francis v State Farm Mutual Automobile Insurance, CV-13-5492-00
This is a motion for summary judgment in the context of the OAP-1’s unidentified motorist provisions.
Frank v. Legate, 2015 ONCA 631
Court of Appeal upholds abuse of of process dismissal of Doctor’s defamation lawsuit against medical malpractice plaintiff counsel.
Franklin et al. v. The City of Greater Sudbury, 2016 ONSC 4739 (CanLII)
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.
Galota v. Festival Hall Developments Ltd. et al, 2015 ONSC 6177 (CanLII)
Released October 6, 2015 | CanLII This is a motion for summary judgment on a limitation period issue. On May 13, 2006, the Plaintiff fell off of a dance stage at a bar and broke her arm. She sued only the bar owner (tenant) within two years of the fall. The bar and its insurer defended the action; unfortunately, the bar closed and its insurer became …
Gardiner v. MacDonald, 2016 ONCA 968
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.
Gardiner v. MacDonald, 2016 ONSC 602
This case affirms that liability in motor vehicle accidents is not clear-cut, even in cases where the right of way is undisputed. In apportioning liability for an accident, the court will assess the reasonableness of each driver’s actions in the circumstances. Professional drivers will be held to a higher standard of care than ordinary drivers in similar situations.
Gilbert v. South, 2015 ONCA 712
Court of Appeal Refuses to Order Trust or Assignment of Accident Benefits Following Trial
Gomez v Vandelden, 2016 ONSC 1966 (CanLII)
Despite concerns regarding the credibility of the parties, Justice Dow grants Summary Judgment in “very exceptional case where the paper record was sufficient to reach a fair conclusion”
Grajqevci v. Rustaie, 2017 ONCA 2535
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.
Grigoroff v Wawanesa Mutual Insurance Company, 2015 ONSC 3585
Released July 15, 2015 | CanLII This Divisional Court decision concerns the issue of when interest begins to run on attendant care benefits. The Divisional Court noted that the determination of this issue turned on when the payment of a benefit is “overdue”. The Plaintiff was involved in a motor vehicle collision on December 7, 2001. The Plaintiff retained various occupational therapists and case managers to …
Hamblin v. Standard Life Assurance Company of Canada, 2016 ONCA 854
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.
Hamilton v. Bluewater Recycling Association, 2016 ONCA 805
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.
Hamilton v. Ontario Corporation #2000533 o/a Toronto Community Housing Corporation 2017 ONSC 5467
Summary judgment granted where the Plaintiff could not produce objective evidence of an unsafe condition resulting in her slip and fall.
Harris v. Ontario, 2016 ONSC 4641
Are claims for recovery of legal expenses incurred in connection with the inquest conducted into the death of JD potentially recoverable in law as against the defendants, pursuant to section 61(1) of the Family Law Act, or are such expenses excluded claims which are not potentially recoverable at law?
Hartley v. Security National, 2017 ONCA 715
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.
Hezaveh v. Sajanlal
Judge upholds Master’s decision not to order production of settlement release related to prior motor vehicle accident litigation.
Hillis v. Meineri, 2017 ONSC 2845 (CanLII)
The plaintiff was successful in this action brought over the efficacy of anesthesia.
Hoang v. The Personal Insurance Co, 2017 ONSC 3649
Coverage decision about “use or operation of an automobile”
Hoang v. Vicentini, 2016 ONCA 723
Court of Appeal speaks to the Difference between Litigation Experts & Participant Experts (and the exception to complying with Rule 53.03)
Humphrey v. Attorney General of Canada, 2016 ONSC 2659
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.
I.B. v. Aviva Insurance Company of Canada – Tribunal File Number 16 004144 AA85
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.
Iannarella v. Corbett, 2015 ONCA 110
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.
Intact Insurance Company v. Allstate Insurance Company of Canada, 2016 ONCA 609
This was an appeal by an insurer of a decision assigning priority for accident benefits to it instead of the first responder. The main issue on appeal was the question of dependency.
Intact Insurance Company v. Federated Insurance Company of Canada, 2017 ONCA 73 (CanLII)
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’.
J.I.L.M. Enterprises & Investments Ltd v. Intact Insurance, 2017 ONSC 357
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.
Jamieson v. Kapashesit et al, 2017 ONSC 5784 (CanLII)
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.
Jamieson v. Kapashesit, 2018 ONSC 279 (CanLII)
Court awards $11,300 in costs where late served surveillance leads to a mistrial and an adjournment.
Jeliazov v. John Doe, 2015 CarswellOnt 14677
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 …
Jones v. Hanley and Jones v. Livska, 2018 ONSC 145 (CanLII)
This is a post-verdict motion dealing with, among other issues, the assignment of future sabs which the plaintiff may be entitled.
Kabutangana v. Coachman Insurance Co., 2016 ONSC 6330
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.
Kania v 1618278 Ontario Inc (c.o.b. Heart and Crown Irish Pubs), 2015 ONSC 7042
This recent decision is a reminder of the affirmative duty that occupiers owe to take reasonable care to ensure that people are safe while attending on their premises.
Kapoor v. Kuzmanovski, 2017 ONSC 1709
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.
Kassburg v. Sun Life Assurance Company 2014 ONCA 922
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 …
Kelly v. Mikhael, 2016 ONSC 6296
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.
Kheriji v. 14939201 Ontario Limited et al, 2015 ONSC 5196
Released September 4, 2015 | CanLII This was a motion by the defendant, 14939201 Ontario Limited, to dismiss the plaintiff’s action against it for failure to issue within the limitation period and for summary judgment on the basis that the defendant did not owe a duty of care to the plaintiff. The plaintiff’s action arose from an assault at the Ministry nightclub. The defendant was the owner …
Krishnamoorthy v. Olympus Canada Inc., 2017 ONCA 873
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.
Kushnir v. Macari, 2017 ONSC 307 (CanLII)
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.
Kwok v. Abecassis and the Personal Insurance Company, 2016 ONSC 7391
This is a decision about when it is appropriate to strike a jury on the grounds of complexity.
Labelle v. Canada (Border Services Agency), 2016 ONCA 187
This appeal to set aside the dismissal order was allowed on the basis that prejudice to the defence existed regardless of the Appellant’s delay. The factor of delay by itself is not sufficient to deny the Appellant’s request to reinstate the action.
Lambert v. Khan et al, 2016 ONSC 103
Motion by Plaintiff to determine whether OPCF 44R applied to her claim, in which case her insurer, TD would be required to respond. Companion motion by defendant Lombard, seeking to have cross-claim against it by TD dismissed on rounds of zero liability.
Landre and Western Assurance Company, FSCO A16-001321
This decision concerns a request to add issues to an arbitration proceeding resulting from an Application for Arbitration, filed February 18, 2016.
Landriault v. Sun Life, 2015 ONSC 3196
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 …
Lauesen v. Silverman, 2016 ONCA 327
The Ontario Court of Appeal held that a solicitor’s negligence claim based on improvident settlement in a personal injury action was not discoverable until new counsel advised the plaintiff of it after obtaining an expert medical-legal opinion.
Lazar v. TD General Insurance Company, 2017 ONSC 1242 (CanLII)
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.
Lennox v Burns, 2016 ONSC 2993 (CanLII)
This was a medical negligence claim against a general surgeon following a Hartmann’s procedure and colostomy reversal. Failure to secure informed consent, and failure of surgical and post-operative standard of care were at issue.
Leon v. Toronto Transit Commission, 2016 ONSC 3394 (CanLII)
The Divisional Court provides an analysis on the law on spoliation and the relevance of medical records more than 5 years pre-accident.
Letestu Estate v. Ritlyn Investments Limited, 2017 ONCA 442
Court of Appeal reverses 1 year limitation imposed by SCJ for some Occupier’s Liability claims
Levita v Alan Crew et al., 2015 ONSC 5316 (CanLII)
Released September 1, 2015 | CanLII This action arose out of a recreational hockey incident in which the plaintiff, Robbie Levita, suffered a fractured right tibia and fibula after being checked by the defendant, Alan Crew, while playing in a league operated by True North Hockey Canada. Levita claimed that Crew checked him into the boards from behind, either intentionally or recklessly, in contravention of the rules …
Lexfund v. Ferro et al., 2016 ONSC 4113 (CanLII)
Interest rate on litigation loans reduced due to failure by loan company to comply with Consumer Protection legislation.
Lica v. Dhaliwal, 2015 ONSC 3888 (CanLII)
Released July 29, 2015 | CanLII The Plaintiff commenced an action against the Defendants after sustaining injuries in a motor vehicle accident. State Farm Mutual Insurance Company (“State Farm”) denied coverage to the Defendants and had itself added as a statutory third party in the action, but refused to provide detailed information as to why it denied coverage. The Plaintiff sought an order requiring State …
Linton v. Tholos Restaurant Inc., 2016 ONSC 4167
Denied motion for summary judgment about tavern liability.
Little v. Einarsen, 2015 BCSC 2127 (CanLII)
Released November 19, 2015 | Decision It was an unusual situation. Einarsen parked her vehicle on a slope and engaged the emergency brake. She entered the pub. About ten minutes later, her unoccupied automobile rolled down the slope of the parking lot. The Plaintiff, Little, was struck from behind by the rolling car as he walked across the parking lot. The vehicle continued to roll …
Little v. Floyd Sinton Limited, 2017 BSCJ 12-0297
Barrie jury returns $7 million verdict for young plaintiff in an action against school bus company.
Liu v. The Personal Insurance Company et al, 2018 ONSC 324 (CanLII)
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.
Lloyd v. Bush, 2017 ONCA 252
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.
Lucas-Logan v. Certas Direct Insurance Co., 2016 ONSC 828
Recent decision about the right to commence actions and arbitrations post-April 1, 2016
Lyons Estate v. Dr. Freeman et al., 2017 ONSC 676 (CanLII)
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.
M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT)
A recent LAT decision was overturned and the law regarding compliance with the notice requirement under section 44 (for insurers’ examinations) was clarified.
MacDonald v. Duncan, 2015 ONSC 7135
A marginal expansion of the upper limit of damages for loss of care, guidance, and companionship for the loss of an adult sibling.
Machaj v. RBC General Insurance Company, 2016 ONCA 257
Recent Court of Appeal decision looking at limitation periods for CAT benefits under the SABS.
MacKay v Starbucks Corporation, 2017 ONCA 350
The Court of Appeal upheld the trial judge’s ruling that Starbucks was an occupier of a municipal sidewalk leading into a Starbucks patio. The Court noted that in order for an adjacent property owner to be an occupier, the adjacent property owner’s actions must constitute more than “merely clearing adjacent public sidewalks of snow and ice, whether in compliance with municipal by-laws or otherwise.”
Malfara v. Vukojevic, 2015 ONSC 78
Released January 8, 2015 | CanLII This case contains a good refresher on the principles which will be considered in threshold motions. Justice Firestone set out the following principles: the trial judge is not bound by the jury’s verdict, but is a factor he or she can consider in determining the threshold motion; “permanent” does not necessarily mean forever until death; a permanent impairment is a weakened …
Mamado v. Fridson, 2016 ONSC 4080 (CanLII)
At the conclusion of trial, the defendant brought a threshold motion and called two expert witnesses in support of the motion: Dr. Soric and Dr. Reznek. The Court found that the evidence from both witnesses contained serious flaws and expressed concern regarding how the majority of their income was derived from conducting medical-legal work for defendants. The motion was denied.
Mandel v Fakhim, 2016 ONSC 6538
This was a threshold motion brought by plaintiff’s counsel during jury deliberations. The question before the court was whether the question was rendered moot as a result of the jury’s nominal award.
Marfo et al v. Pafco Insurance Company, FSCO A12003055 and A12-005351
Arbitrator finds alleged ‘staged accident’ to have occurred without misrepresentation.
Markovic v. Richards, 2015 ONSC 6983
After The Event Insurance Premium Not A Compensable Disbursement and New Prejudgment Interest Rate Not Retroactive
Martin-Vandenhende v. Myslik, 2015 ONCA 806
Court of Appeal substitutes its own finding on liability in 2001 MVA case.
Matthew v. Vince’s No Frills, 2018 ONSC 16 (CanLII)*
This is a helpful case about how to succeed on motions for default judgment in the context of personal injury actions.
Mazzucco et al. v. Herer et al, 2015 ONSC 7083
Judge holds that, in some circumstances, LTD benefits are deductible from past and future income loss in a medical malpractice claim.
Mazzucco v. Herer et al., 2015 ONSC 7083
Mazzucco v. Herer Signals a “New Era in the Private Insurance Exception”
McCoy v. Loveday, 2018 ONSC 3 (CanLII)
The plaintiff brought a motion to have counsel for the defendant removed due to a potential conflict of interest. The plaintiff was a personal injury lawyer who had had discussions about his case with lawyers from an insurance defence firm. This insurance defence firm was subsequently hired by the defendant’s insurer in the plaintiff’s personal injury action. The plaintiff sought defence counsel’s removal from the action, owing to the aforementioned discussions.
McMillan v. Adeite, 2016 ONSC 3918
Discoverability principle extends limitation period when Plaintiff not advised of serious condition by doctor
Michael Digby v. Aviva Canada Inc., FSCO A16-001425
The Arbitrator determined that the Applicant’s post-denial treatment history was a key consideration in determining that the treatment plan was reasonable and necessary.
Middleton v. Pankhurst, 2017 ONCA 835 (CanLII)
The Court of Appeal affirmed that the term “authorized by law” applies only to licencing and restrictions imposed by the Ministry of Transportation. A driver who operates a vehicle with alcohol in his system, in breach of his probation order, is not in violation of statutory conditions.
Mikolic v. Tanguay, 2015 ONSC 71
Accident Benefits Settlement Deducted from Tort Award as a Result of Itemized Settlement Disclosure Notice
Mikolic v. Tanguay, 2015 ONSC 71 (CanLII)
The Divisional Court concludes that accident benefit settlements encompassing both past and future benefits are deductible against global damages awards without regard to apportionment between past and future amounts.
Moran v. Economical Mutual Insurance Company, FSCO A13-011759
FSCO preliminary issue hearing decision about limitation periods for minors under the SABS.
Mork v. Sanghera, 2016 ONSC 5108
Court applies principles of jurisprudence regarding multiple defence medical assessments
Morriseau v. Sun Life Assurance Company of Canada, 2017 ONCA 567 (CanLII)
This is an Appeal from a Motion where Sun Life moves to dismiss the Plaintiff’s LTD Action on the ground that the Court does not have jurisdiction and that the proper forum is arbitration (LRBO) under the collective agreement.
Motz et al v. Howard, 2015 ONSC 6464
In this Superior Court decision, the court removed a litigation guardian for a party under disability.
Myers-Gordon et al. v. Martin et al., 2017 ONSC 872
OPCF44R coverage deemed to act as excess coverage to home insurance policy following pedestrian MVA
Nemchin v. Green, 2017 ONSC 2126
Plaintiff’s attempt to pre-screen jurors for “connection” to insurers refused.
Nemchin v. Green, 2017 ONSC 2283
On the threshold motion, the trial Judge found that Dr. Richard Hershberg was not a credible witness and gave his evidence much less weight than the evidence of the Plaintiffs’ psychiatrists.
Nguyen v. Kojo, 2017 ONSC 2014
Denied request by defendant to conduct a physiatry IME.
Niforos and Allstate Insurance Company of Canada, FSCO A13-007892
Heard April 25, 2015 | Document Bank The Applicant had been receiving CPP disability benefits since 1994. Approximately sixteen years later on March 1, 2010, the Applicant was injured in a motor vehicle accident. Following this accident, the Applicant continued to receive CPP disability benefits. She also applied to her automobile insurer for non-earner benefits. A preliminary issue arose as to whether the Insurer was entitled to …
Nikolakakos v. Hoque, 2015 ONSC 4738 (CanLII)
Letter of instruction to defence medical/legal expert not ordered produced until defendant decides to call that expert at trial.
Nwokomah v. Galle, 2017 ONSC 6880 (CanLII)
Court refuses plaintiff’s motion seeking to inform the jury about the statutory deductible which applies to general damages awards.
P.K. v. The Guarantee Company of North America, 16-001348/AABS
On reconsideration, the executive chair found that attendant care benefits were payable on an ongoing basis
P.L.F.R. v. Intact Insurance Company, Tribunal File No. 16-000145/AABS (LAT)
In what is believed to be the first LAT decision on catastrophic impairment, Vice-Chair Flude held that the applicant, who had been intubated and sedated before having GCS scores of 9 or less recorded, had suffered a catastrophic impairment.
Paolucci v. John Doe, 2015 ONSC 7675
OPCF 44R Claim Dismissed on Summary Judgment Motion, OAP Claim Survives
Parasiliti v. Beatty, 2015 CarswellOnt 15370
Released Octiober 8, 2015 | Full Decision [OTLA Document Bank] This action in medical negligence was brought following an incident where the plaintiff, Rosetta Parasiliti, injured her hand while walking a friend’s dog. She suffered three comminuted fractures to three left fingers. The attending physician, Dr. Lee performed a closed reduction and casted the hand on August 31, 2008. On September 4, 2008, Ms. Parasiliti …
Parmar v. Teachers Life, 2017 ONSC 2329
The Plaintiff commenced an action for payment of disability benefits from the Defendant. The Defendant brought a motion for summary judgment, arguing the action was barred by the policy and/or the Limitations Act. The Court granted the Defendant’s motion for summary judgment.
Parra v Laczko, 2016 ONSC 911
Recent decision of the Superior Court of Justice on a threshold motion in a chronic pain case.
Parris v. Wylie, 2016 ONSC 4778 (CanLII)
After being released from the action, the defendants were unsuccessful on their motion for costs of the action.
Pashkiewich v. City of Toronto, 2017 ONSC 6921 (CanLII)
Plaintiff’s motion to add winter maintenance company after the two year limitation period refused due to lack of reasonable due diligence.
Pelchat v. Brown, 2016 ONSC 6754
This is a decision about default judgment between crossclaiming defendants.
Persampieri v. Hobbs, 2018 ONSC 368 (CanLII)
In a recent costs endorsement against Aviva, the Court held that insurers who took positions on modest claims that necessitated a trial should not be allowed to rely on a strict application of the proportionality principle in determining costs. The Court held that as Aviva had made a tactical decision to reject a Rule 49 offer that the Plaintiff beat at trial, it should bear the full magnitude of the consequences of that strategy. Although the Plaintiff was ultimately awarded only $20,414.83 for her damages, the court ordered a costs award of $237,017.50 payable to the Plaintiff.
Perth Insurance Company v. Salim Surani, 2017 CarswellOnt 13620 (FSCO Appeal Decision)
Pursuant to s. 7(3)(b) of the SABS, post-accident business income is deductible from the claimant’s IRBs.
Pestano v. Wong, 2017 BCSC 1666 (CanLII)
This medical malpractice case was largely resolved by way of a settlement. However, the parties required determination of several issues in relation to management fee and tax gross-up awards and calculations.
Peters v. Peel District School Board et al., 2016 ONSC 4788
The courts will apply the standard of care of a careful and prudent parent in cases of school board negligence. The application of that standard depends on the nature of the activity and students.
Pinch (Guardian ad litem of) v. Morwood, 2017 BCCA 234 (CanLII)
The defendants failed to overturn the trial judgment awarding damages over failings in pre-natal maternal monitoring.
Powell v. Maisuria, 2017 ONSC 2278
Despite the accident occurring in Brampton, and the Plaintiff and the Defendant both residing in Brampton, the Court dismissed the Defendant’s motion to have the action transferred from Toronto to Brampton.
Pupo v. Venditti, 2017 ONSC 1519
The jury awarded $150,000 for pain and suffering damages where the Plaintiff suffered from chronic pain and had returned to work. After the jury delivered its verdict, defence counsel brought a threshold motion which was dismissed by the court
Puri Consulting Limited v. Kim Orr Barristers PC, 2015 ONCA 727 (CanLII)
In this appeal, the Court of Appeal found that even if the plaintiff’s offer to settle does not specifically provide for the inclusion of costs, the plaintiff would be entitled to it pursuant to rule 49.07(5)(b). Further, even if words in the offer are believed to be ambiguous or unambiguous, the meaning of those words can only be properly ascertained by considering the entire context in which the offer was made.
R.S. v Aviva Insurance Canada, 16-003141/AABS (LAT)
Must quantify pre-morbid activity time commitments to successfully claim an NEB at the LAT
R.S. v. Aviva Insurance Canada, 16-003141/AABS (LAT)
A must read for anyone arguing non-earner benefit entitlement before the LAT Date Case Heard: Written Hearing: May 15, 2017 | Full Decision [PDF] This is a recent non-earner benefit eligibility case from the LAT. It provides a helpful guide on how to argue a non-earner benefit case before the LAT. At the outset, the adjudicator addressed a number of preliminary procedural issues. It allowed …
Rawsthorne v. Marotta, 2017 ONSC 2182
Discoverability is triggered when the plaintiff knows that some damage has occurred and she has identified the specific tortfeasor who caused the damage. Knowledge of the damage alone does not trigger the limitation period.
Richards v. Sun Life Assurance Company of Canada et. al, 2016 ONSC 5492
Ladies and Gentlemen, start your engines….and your Statement of Claims. This recent summary judgement dismissal suggests that an insurer’s delay in paying a benefit will trigger the commencement of the limitation clock, even where there has not been a “clear and unequivocal denial” of the disability claim.
The limitation period for disability benefits does not require a clear and unequivocal denial according to Justice Bale in his fact-specific decision on Summary Judgment motion.
Richards v. Sun Life Assurance Company of Canada, 2016 ONSC 5492
In an action for disability benefits, a plaintiff does not get the benefit of a rolling limitation period because the material facts upon which the action rests will have arisen at the time the plaintiff alleges that he or she first became entitled to periodic payments and it would be unfair to require the insurer to litigate those facts for a potentially unlimited period of time.
Rivera v. British Columbia Life & Casualty Company, 2015 CarswellOnt 16988
This application addressed the priority of coverage between a Long-Term Disability Carrier and an Accident Benefits Carrier. The Respondent, BC Life & Casualty Company, took the position that it was entitled to deduct Income Replacement Benefits from their calculation of the Applicant’s Long-Term Disability Benefits. The Applicant brought an application for a declaration that this was inappropriate. As per both the Insurance Act and the …
Roberts v. Intact, FSCO A-14-002957
FSCO Arbitration decision reviewing the definition of “accident” under the SABS.
Romanko v. Nettina, 2014 ONSC 5153
Released September 8, 2014 | CanLII The insureds, Victor Romanko and Teareasa Romanko, were Ontario residents were injured in a motor-vehicle accident while driving in New York State. The insureds brought an action in Ontario against the driver and owner of the other vehicle involved in the accident, Dennis Nettina, a resident of New York State, and the Romanko’s automobile insurer, the Co-operators General Insurance …
Romanoski Estate v. Seburn, 2016 ONSC 3481 (CanLII)
The mother pregnant with the deceased’s child is entitled to claim pursuant to section 61 of the Family Law Act.
Rooplal v. Fodor, 2018 ONSC 399 (CanLII)
Unidentified carrier added to claim Five Years Post-Accident.
S.H. and H.S. v. Northbridge Personal Insurance Corporation, 2018 ONSC 1801 (CanLII)
The Divisional Court provides guidance on the interpretation of s. 61 of the SABS.
S.K. v. Allstate Insurance Company of Canada, 2017 CANLII 77394, ON LAT
A refusal to pay a benefit that stems from a period of non-compliance pursuant to section 33 of the SABS can trigger a section 56 limitation period.
S.T. v. Economical, 2017 CanLII 59507
LAT upheld the limitation period for denied CAT Benefits. It held that a catastrophically impaired Applicant missed the two year limitation period to dispute the Insurer’s refusal to pay housekeeping and attendant care benefits.
Saadati v. Moorhead, 2017 SCC 28
The Supreme Court of Canada held that an expert’s diagnosis of a psychological injury was not required for the Plaintiff to succeed in recovering damages for same.
Sabean v. Portage La Prairie Mutual Insurance Co., 2017 SCC 7
An insurer cannot rely on its specialized knowledge of jurisprudence to advance an interpretation of the policy that goes beyond the clear words of the policy as understood by an average person.
Sadat v. TD General Insurance Company, 2018 FSCO A14-000677
Hearing loss results in two marked impairments and entitlement to non-earner benefits despite return to work.
Saleh v. Nebel, 2015 ONSC 3680
Released June 8, 2015 | CanLII This eight-day motor vehicle injury trial proceeded before the Honourable Mr. Justice F.L. Myers and a jury in Toronto in January and February 2015. Liability was admitted. The jury awarded the plaintiff $30,000 for general damages but nothing for his claims for past and future loss of income or for future care. Justice Myers subsequently granted the defendant’s threshold …
Samur (Litigation Guardian of) v. Antoniak, 2016 ONCA 851
This is a decision about the credibility of interested witnesses, the standard of care to be applied to children, and generally accepted inferences.
Sanzone v. Schechter, 2016 ONCA 566
This appeal to set aside a dismissal granted at a summary judgment motion was allowed on the basis that the respondents failed to present evidence going to the merits of their defence but instead attempted to compel the appellant to deliver an expert report and show that she has not done so.
Scarlett v. Belair Insurance, 2015 ONSC 3635
Released June 5, 2015 | CanLII In this most recent installment in the Scarlett saga, the Divisional Court reviewed the decision of Director’s Delegate Evans from November 28, 2013. That decision had overturned the original Arbitration decision of March 26, 2013. The Director’s Delegate had remitted the matter to be heard in full by a different arbitrator. Mr. Scarlett sought to reinstate the Order of …
Schaefer v Ayeneababa, 2016 ONSC 3673 (CanLII)
This was a summary judgment motion in which the defendant sought to have the motor vehicle action dismissed for a missed limitation period.
Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313 (CanLII)
Appeals from the Orders of Tzimas J., and Mccarthy J., Ordering that liability waivers offended s. 7(1) and 9(3) of the Consumer Protection Act.
Shah v. Loblaw Companies Ltd, 2015 ONSC 5987
Litigation Cost Protection will not suffice as ‘Security for Costs’
Shapiro v. Doe, 2016 ONSC 2956
Plaintiff’s Claim Dismissed due to Insufficient Evidence on Summary Judgment Motion
Sharon Todd v. Felton Brushes Ltd. et al., 2016 ONSC 5252
There is no common law duty on a group disability insurer to inform an insured of each potential claim for benefits.
Shaw v. Barber, 2017 ONSC 2155 (CanLII)
The limitation period does not begin to run when the Office of the Public Guardian and Trustee becomes a mentally incapable person’s statutory guardian of property. The limitation period begins to run when the guardian of property has determined that there is a basis for exercising their authority as litigation guardian and thereby becomes the mentally incapable person’s litigation guardian.
Shaw v. Mkheyan, 2017 ONSC 851
This is a threshold motion in which the plaintiff had pre-existing osteoarthritis in his left knee. The plaintiff was successful in establishing the subject car accident caused his asymptomatic left knee to become symptomatic and thus his injuries met threshold.
Shawnoo v. Certas Direct Insurance Company, 2014 ONSC 7014 (CanLII)
Released December 30, 2014 | CanLII The plaintiff, Misty Shawnoo, suffered a catastrophic brain injury following a motor vehicle collision that occurred on December 12, 2010. As a result of the collision, she suffered from ongoing issues with impulsiveness and risk-taking behavior sufficient to warrant constant monitoring and supervision. Ms. Shawnoo applied for attendant care benefits under the SABS from the defendant, Certas, for care provided …
Silvera v. Olympia Jewellery Corporation, 2015 ONSC 3760
Released June 15, 2014 | CanLII Ms. Silvera – who had worked at Olympia Jewellery Corporation as a receptionist/administrative assistant – was fired after a two week absence from work due to dental surgery. At the time, she earned $28,000 a year, and had worked for the employer for a year and a half. She brought an action against Olympia for wrongful termination and against …
Simmons et al. v. Mallika et al., 2015 ONSC 5964
Master refuses security for costs to the defendants Released October 5, 2015 | Full Decision [Document Bank] The defendants brought a motion seeking security for costs from the plaintiffs in the motor vehicle accident action. The accident took place on April 7, 2006. The defendant rear-ended the plaintiff’s vehicle. The plaintiff suffered injuries. The plaintiff’s husband and two daughters were added to the action under s. 61 of …
Skunk v. Ketash, 2016 ONSC 2019
Defendant insurer brings summary judgment motion on UMC coverage for car taken without consent. Owner of car’s husband injured as a passenger in the stolen car. Justice Newton finds person who took vehicle without consent is an “inadequately insured motorist” under OPCF 44. Defendant’s motion dismissed.
Snowball v. Ornge, 2017 ONSC 4601
Opening the door to FLA damages for mental anguish or sorrow?
Sobh v. RBC General Insurance Co. et al, 2016 ONSC 7382
This was a motion and cross-motion for summary judgment. The defendant driver sought to have the claim dismissed as against him and his numbered company. The Plaintiff’s insurer sought its release from the action under its unidentified coverage. In the alternative, it sought a ruling that the OPCF 44R was not triggered in the circumstances of this claim.
Soczek v. Allstate Insurance Co., 2017 ONSC 2262
Although the Defendant succeeded on its summary judgment motion to dismiss a property loss action, Morgan J. comments on the inequity of the exclusion clause and awarded no costs.
State Farm Mutual Automobile Insurance Company v. Aslan et al., 2016 ONSC 2725
An April 13, 2016 decision by Justice Hackland in Ottawa has provided further guidance on the notice requirements before an insurer can perform a section 33 Examination Under Oath. A generic statement that the insurer requires an examination under oath to determine the insured’s entitled to statutory accident benefits will not suffice.
Stegenga v. Economical Mutual Insurance Company, 2018 ONSC 1512 (CanLII)*
Court strikes Plaintiff’s Statement of Claim alleging bad faith and punitive damages by her insurer in the administration of her statutory accident benefits. The License Appeal Tribunal has exclusive jurisdiction at first instance.
Subramanian v. Bhawaneesingh, 2016 ONSC 4890 (CanLII)
Master restores matter to trial list notwithstanding a lack of explanation for delay
Surujdeo v. Melady, 2017 ONCA 41
The Court of Appeal clarifies the causation question to be put to the jury in medical malpractice trials (and lots more). Released January 18, 2017 | Full Decision [CanLII] This action was brought by the surviving spouse of a 36-year-old woman, Rossana Surujdeo, who presented to hospital with flu like symptoms and died approximately 9 hours later. The cause of her death was a rare …
Sutharsan et al. v. Stonehouse, CV-15-122624
This is a decision about the admissibility of a 911 call after a motor vehicle accident for the truth of its contents.
T.C. and Personal Insurance Company of Canada, FSCO A13-009880
This arbitration was to determine whether monies received for providing attendant care to a child/family member constitute post-accident income that is deductible from the amount of the applicant’s income replacement benefits.
Tan Duc Ngo v. Mario L. Neves, 2017 ONSC 6130 (CanLII)
Superior Court rules Plaintiff will not be compelled to attend neuropsychological assessment by defence as a result of the Plaintiff’s impairments and inability to complete the assessment.
Thompson v. Intact Insurance Company, 2016 CanLII 60729 (ON LAT)
Released August 16, 2016 | Full Decision [CanLII] This is one of the first AABS decisions from the LAT. The applicant brought an AABS application to determine entitlement to a denied treatment plan. Prior to the hearing, Intact agreed to fund the treatment plan. Despite the settlement, the applicant sought to recoup its costs of preparing for the hearing. The LAT was forced to decide …
Thomson v. Portelance, 2018 ONSC 1278 (CanLII)*
Insurers cannot delay scheduling mediations until the completion of a specific event in the litigation process, such as examinations for discovery.
Thorne et al. v. Hudson et al., 2016 ONSC 5507
In cases with multijurisdictional facts, the choice of law analysis depends on the specific tort alleged. In Thorne, the claims were mainly based on the tort of negligent misrepresentation, which occurs where the misinformation is received or relied upon.
Tierney v. North Waterloo Farmers Mutual, FSCO A15-003293
Applicants successful in demonstrating economic loss for care provider who was a student at the time of the MVA and subsequently had to accept a lower paying position than anticipated due to the requirement for flexible time and proximity to provide AC services.
Todhunter v. Owles, 2015 ONSC 5656
This decision concerns a motion for leave to appeal an order permitting the plaintiff to amend his statement of claim by adding named third parties as defendants after the expiry of the limitation period. The third parties were municipal entities. Leave was not granted.
Tompros v. Ravitharan et al, 2015 ONSC 3998
Released June 19, 2015 | CanLII This was a motion brought by Desjardins as intervener to have a coverage issue determined prior to trial regarding an excluded driver under one of its policies. The excluded driver had signed an OPCF 28A Excluded Driver form in 2007. The form had not been approved by the FSCO Superintendent, was not witnessed, and did not specify which automobiles …
Unifund Assurance Company v. D.E., 2015 ONCA 423
Released June 11, 2015 | OntarioCourts.ca The Court of Appeal has allowed Unifund’s appeal and overturned the lower court decision. The Court held that an insurer does not have a duty to defend and indemnify its insureds under a homeowner’s policy, with respect to claims they failed to investigate, remedy and prevent their daughter from bullying. In the original ruling, (previously summarized here) Justice Stinson held that …
Usanovic v. La Capitale Life Insurance Company, 2016 ONSC 4624
Court dismisses long-term disability lawsuit commenced three years after denial due to statute of limitations
Usanovic v. Penncorp, 2017 ONCA 395
An Insurer Does Not Have a Good Faith Duty to Advise Insured of a Limitation Period
Vickers v. Palacious, 2015 CarswellOnt 20889
After the close of the plaintiff’s case, during which the plaintiff filed the reports of two radiologists, the trial judge denied the defendant’s request for a ruling permitting it to cross-examine the radiologists.
Vickers v. Palacious, 2015 CarswellOnt 20890
Late disclosure of surveillance evidence, in breach of the defendant’s continuing disclosure obligations, led the trial judge to exclude surveillance evidence both as substantive evidence and for the purpose of impeachment.
Vlanich v. Typhair, 2016 ONCA 517 (CanLII)
Township not liable to injured plaintiffs for failing to enforce taxi insurance bylaw.
Walker v. Doxtator et al, 2018 ONSC 2112 (CanLII)
Plaintiff’s 30.10 Wagg motion found to be premature where pleadings still open.
Walters v. Ontario, 2017 ONCA 53 (CanLII)
Court of Appeal dismisses appeal regarding finding of liability on Crown for assault at a provincial jail
Wardak v. Froom, 2017 ONSC 1166 (CanLII)
This is a motion for summary judgment to dismiss the Plaintiffs’ action in a social host liability case.
Watkins v. Western Assurance Co., 2016 ONSC 2574
Accident Benefits Insurer’s failure to provide an Explanation of Benefits to a dependent of a policyholder who may have been entitled to accident benefits does not stop the time requirement of that dependant to apply for accident benefits within the statutory timelines and commence an action within the two-year limitation period
Watts v. Bowman, 2016 ONSC 3994
Watts is an illustrative case dealing with implied consent. Watts restates the current test for whether implied consent has been granted.
Watts v. Bowman, 2016 ONSC 3994 (CanLII)
In order to determine whether a driver of a vehicle has the implied consent of the owner of the vehicle to drive it, the court has to ascertain what he or she actually did under the circumstances, not what he or she would have done under different circumstances. The court cannot speculate on whether or not an owner would consent to allow a vehicle to be driven if the driver had requested the permission.
Weaver v. Aviva Canada Inc., FSCO A16-001215
The following is a summary of the FSCO Decision of Weaver v. Aviva, an Arbitration that was heard August 9, 2017.
Wilk v Arbour, 2017 ONCA 21
The Court of Appeal held that the term “owner” in the Dog Owners’ Liability Act is more expansive than the colloquial meaning and refers to a person who has some measure of control and physical possession of the dog immediately prior to the injury. The Court furthered clarified the application of negligence to cases of injury by animals, holding that there must be “special circumstances” in which the owner could reasonably foresee that a specific animal was dangerous in specific circumstances.
Winmill v. Woodstock (Police Services Board), 2017 ONCA 962 (CanLII)
The Court of Appeal held that the tort of battery against police officers was not discoverable until the plaintiff was acquitted of criminal charges of assault of the officers and resisting arrest, thereby extending the “appropriate means” aspect of discoverability until the date of his acquittal.
Wong v. Salivan Landscape Ltd., 2016 ONSC 4183
The limitation period against a security firm contracted to perform winter maintenance at a condominium property did not begin to run before the plaintiff had actual knowledge of the security firm’s responsibility. Plaintiff’s counsel’s property searches, notice letters and reliance on information obtained from the property owner constituted due diligence.
Woodhouse v. Snow Valley Resorts (1987) Ltd., 2017 ONSC 222
Where a service provider relies on the waiver clause of a consumer agreement, and the consumer agreement contains terms that are void by operation of the Consumer Protection Act, the service provider bears the onus to persuade the court that it would be inequitable not to bind the Plaintiff to all or some portions of the consumer agreement, including its waiver clause.
Wright v. Detour Gold Corp., 2016 ONSC 6807
Where an expert has retained separate legal counsel to assist with the preparation of a report or affidavit, the expert will not be required to produce drafts or copies of communications between the expert and his or her counsel. However, the expert will be required to produce drafts and correspondence if there is a factual basis for the reasonable suspicion that counsel has improperly influenced the expert.
Zaravellas v. Armstrong, 2016 ONSC 3616
A good refresher on the test for Gross Negligence
Zarebicki v. Wal-Mart Canada Corp., CV-14-0778-00
Summary Judgment not granted where the inconsistencies of several witnesses and conflicting material evidence required an evaluation of credibility.
Ziebenhaus v. Bahlieda, 2015 ONCA 471
Released June 24, 2015 | CanLII In this decision, the Court of Appeal considered the inherent jurisdiction of the court to order a party to undergo a defence medical examination by someone who is not a “health practitioner” as defined by s. 105 of the Courts of Justice Act. The Court acknowledged at the outset that there was conflicting case law on the issue. The …