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.

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.

Adatia v. Cassar, 2018 ONSC 4321 (CanLII)

This is a motion for summary judgment by the Defendant on liability in an action arising from a motor vehicle collision – the Court provides useful comments for cross-examinations on affidavits filed supporting the motion

Al-Kaysee v. Noyes

After Mediation the Defence lawyer took out a final Dismissal Order without the authorization of Plaintiff’s counsel and before settlement funds were received. All attempts to contact the Defence lawyer to demand an explanation were ignored.

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.

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 …

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 …

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, 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.

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.

Baglot v. Fourie, [2019] BCSC 122

The defendant admits prescription error but denies that Toradol received by plaintiff caused an ulcer, repeat intestinal bleeding and chronic pain. There is no other change in the plaintiff’s life to explain sudden decline. By causal inference, judge finds defendant caused injury to plaintiff.

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.

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.

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.

Bosnali v. Michaud, 2019 ONSC 280

On the motion, the Plaintiff’s lawyer sought a charging order against monies awarded to the Plaintiff as a first priority ahead of any amounts entitled to the Defendants by way of set-off, where significant costs were awarded to the Defendants based on Rule 49 offers made before trial

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.

Bukshtynov v. McMaster University, 2018 ONCA 1006.

Full Decision (PDF) Counsel: Bonnie Roberts Jones (Appellants – Responding Parties) Alexander B. Paul and Kaleigh Soneshine (Respondent – Moving Party) Bradley M. Remigis (Respondents – Moving Parties) Judge: Huscroft J.A. Recent decision on motions for security for costs. The Appellant fell while jogging on an indoor running track at McMaster University.  He fell after colliding with a member of one of McMaster University’s running …

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 …

Cadieux v. Cloutier, 2018 ONCA 903

Apples can now be deducted from oranges. Date Heard May 1-2, 2018 Since the start of no-fault auto insurance benefits in Ontario, tort defendants were entitled to deduct collateral benefits the plaintiff received before the tort trial and obtain an assignment for future no-fault benefits that are the same as the damages awarded. The principle is that an injured plaintiff should not receive double recovery …

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.

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 …

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 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 …

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.

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 …

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 …

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 …

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. …

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)”.

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.

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 …

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.

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”). …

Edwards v. McCarthy, 2019 ONSC 3925

Court rules where expert report served during discovery process, lawyers’ letter of instruction to expert is protected by litigation privilege and not producible at discovery stage so long as instructions from counsel is included in the report itself.

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. …

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 …

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.

Felix v. Omar, 2018 ONSC 3286 (CanLII)

On the defendant’s motion to compel answers to questions refused at discovery, questions regarding the possible criminal involvement, education and employment of plaintiff’s younger sibling were held to be not relevant, probative, necessary or proportionate to the issues in the action

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 …

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 …

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 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.

Gendron v. Doug C. Thompson Ltd. (Thompson Fuels), 2019 ONCA 293 (CanLII)

This case is about a 2008 oil leak, wherein a home furnace oil tank leaked through the basement and into surrounding soil, through a drainage system under the house and into the city’s culvert, which carried it into nearby Sturgeon Lake The leak instigated a massive remediation project to remediate the millions of dollars of damage to the environment.

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 …

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.

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.

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 …

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 …

Kueber v. Royal Victoria Regional Health Centre, 2018 ONCA 125 (CanLII)

The appellant, who was self-represented, appealed a summary judgment motion dismissing her action against the defendants. The plaintiff’s action against the various defendants pertained to events that occurred over several days. With regard to the defendant hospital, Royal Victoria Regional Health Centre, the defendant was granted partial summary judgment.

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.

Labonte v. Sun Life Assurance Company of Canada – Court File No. 15-64830, unreported

Is a Personnel File Relevant? What happens when the Adjuster on the claim no longer works for the Insurance company? Do you have an Executed Discovery Plan on your LTD court actions? These and other questions were addressed in a recent Undertakings and Refusals Motion against Sun Life, raising jurisdictional issues in the context of a Quebec-administered LTD Claim.

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.

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.

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.

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 …

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 …

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 …

Liu v. The Personal Insurance Company 2019 ONCA 104

Full Decision Counsel for the Appellant Linda Sue Pearce:         Jeffrey R. LeRoyCounsel for the Respondent Shayne Berwick:        Brian Cameron Counsel for the Respondent The Personal:       Louis Covens Counsel for the Respondent Ruo Hang Liu:     Luke Hamer Heard by:                                                           Justice David H. Doherty                                                                             Justice Janet M. Simmons                                                                             Justice Gladys I. Pardu This was an appeal from the Order of Justice Phillip …

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.

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 …

Malik v. Nikbakht, 2019 ONSC 3118

The appellant argued that the requested amendments to the statement of claim should not be allowed because they constitute a new statutory cause of action and are sought after the applicable two-year limitation period had expired.

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.

Mann v. Jefferson 2019 ONSC 422, 2019 CarswellOnt 1435

The Superior Court holds that evidence concerning post-accident loans taken by the Plaintiff to pay medical, rehabilitation, or other expenses of any kind is NOT admissible since those losses are too remote, not reasonably foreseeable to the Defendants at the time of the accident, and therefore, not recoverable as damages.

Mark v. Durham Children’s Aid Society, 2018 ONSC 5468

This was a decision involving two motions brought by the defendants Durham Children’s Aid Society (“Durham CAS”) and Hawk Residential Care and Treatment Homes Inc. (“Hawk Homes”) pursuant to Rule 21.01(1)(b) to strike the plaintiff’s Statement of Claim as failing to disclose a reasonable cause of action

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.

MD Physician Services Inc. v. Wisniewski, 2018 ONCA 440 (CanLII)

Date Heard: May 1, 2018 | Full Decision [PDF] The appellants are two former employees of the respondent MD. They were hired in 2003 and 2005 respectfully to provide financial services to MD’s clients. Each signed identical non-solicitation clauses as follows: Non-Solicitation: The Employee agrees that the Employee shall not solicit during the Employee’s employment with the Employer and for the period ending two (2) years …

Merrifield v. Canada (Attorney General), 2019 ONCA 205

In this unanimous Court of Appeal for Ontario decision, a three-judge panel consisting of Justices R.G Juriansz J.A., D. Brown J.A., and G. Huscroft J.A. considered whether it was appropriate for the Trial Judge to recognize a new freestanding tort of harassment and found that the lower court erred in doing so.

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 (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.

Mills ats. Spring

Counsel for Respondent: Antonio Meringolo (Plaintiff)Counsel for Applicant: Gloria Shu (Defendant) Case Name: Mills ats. Spring Decision date: February 20, 2019 Full Decision Section. 31 WSIA ‘Right to Sue’ Application – Fails to Knock Out MVA Claim CONTEXTUAL HISTORY On November 29, 2013, the Respondent was injured in a motor vehicle accident at 10:20 am while travelling W/B on County Road 21 in Innisfil, ON. …

Nemchin v. Green 2019 ONCA 634

This recent appeal decision provides further guidance on the use of surveillance and Facebook posts since the seminal case of Iannarella v. Corbett, [2015] ONCA 110.

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.

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 …

O’Brien v. O’Brien, 2018 ONSC 4665

Full Decision Material Facts: This case revolved around a plaintiff, Barry O’Brien, who brought an action for damages as a result of a motor vehicle accident which occurred on October 14, 2010.  At the conclusion of trial, a jury awarded Mr. O’Brien general damages in the amount of $50,000, damages for past loss of income in the amount of $30,000 and damages for future care …

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.

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.

Poonwasee v. Plaza., 2018 ONSC 3797 (CanLII)

The Plaintiff was injured in a motor vehicle accident. The matter proceeded to trial. Liability and damages were in dispute. Questions were presented to the Jury. Defence counsel took the position that the Jury should be asked to particularize the Defendant’s negligence, and to also particularize which of the Plaintiff’s injuries were caused by the crash.

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.

Prabaharan v. RBC General Insurance Company, 2018 ONSC 1186 (CanLII)

Heard: By written submissions. | Full Decision [PDF] In Prabaharan v. RBC General Insurance Company, 2018 ONSC 1186, Justice Stinson ordered the defendant to pay $2,600 in costs as the result of the defendant’s “flagrant disregard” for the Rules of Civil Procedure in failing to adequately prepare for a pre-trial conference (“PTC”).  Defence counsel had failed to request defence medical assessments until one week before the …

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)

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 …

Rodrigues v. Purtill, 2018 ONSC 3102 (CanLII)

This action proceeded as a judge-alone damage assessment. The impaired Defendant entered the intersection on a red light, striking the driver side of the Plaintiffs’ vehicle, containing 5 family members. The driver mother sustained lumbar fractures. The 5 month old son sustained fatal injuries.

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 …

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.

Sabadash v. State Farm et al. 2019 ONSC 1121

Full Decision Counsel for the Applicant:                               Gregory Gilhooly Counsel for the Respondent State Farm:       Todd McCarthy Counsel for the Respondent FSCO:                  Martina Aswani Heard by:                                                             Justice Julie A. Thorburn Justice Katherine E. Swinton Justice Jill M. Copeland Justice Jill M. Copeland This was a judicial review of the decision of Director’s Delegate Evans with respect to an entitlement to Income Replacement Benefits. The …

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 …

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 …

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.

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.

Stewart et al. v. Wood et al., 2019 ONSC 3931

This cost endorsement follows the settlement of a personal injury action ten days before the start of a scheduled three week trial. The parties agreed on the Plaintiffs’ damages of $75,000 and that the issue of costs and disbursements would be assessed by the Court.

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 …

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 …

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.

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 …

Townsend v. City of Kitchener, 2019 ONSC 817 (CanLII)

Full Decision This is a case where a minor plaintiff tripped and fell over a raised concrete edge of a buried metal transformer box on municipal property. The following defendants were named: Kitchener-Wilmot Hydro (“KW Hydro”) as the owner of the transformer box; the Corporation of the City of Kitchener (the “City”) as the owner of the apron of a driveway on the road allowance …

Unifund Assurance Company v. D.E., 2015 ONCA 423

Released June 11, 2015 | 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 …

Walsh v. Papadopoulos, 2018 ONSC 1828 (CanLII)

Defendant’s summary judgment motion dismissed in this occupiers’ liability action where the Defendant did not live in the home where the Plaintiff fell. There were genuine issues for trial regarding the existence of a duty of care and if that duty was breached.

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 (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.

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.

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.

Woods v. Jones 2017 ONSC 3946

Read Full Decision This case involved an motor vehicle accident with an uninsured defendant.  The plaintiff pursued the uninsured provisions of her own automobile policy, TD Insurance.  TD retained in-house counsel to act on the AB matter.  TD thereafter retained the same in-house counsel to act on the uninsured claim.  Plaintiff’s counsel advised TD that it was in a position of conflict and that it …

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.

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 …