Gillian Mays

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.

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.

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.

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.

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

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.