Legal fees incurred in obtaining a guardianship order for persons deemed catastrophically impaired may or may not be considered “rehabilitative benefits”.

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.

This decision reinforces that the Licence Appeal Tribunal will not award costs except in cases of frivolous, vexatious or bad faith conduct. In particular, the Tribunal held that the threshold for awarding costs is high and cost awards are not meant to compensate the parties for the cost of their involvement in claims.

The Defendants succeeded on a motion for an order requiring that the Plaintiffs appoint an appraiser pursuant to s. 128(5) of the Insurance Act.

The bleak future of MVA general damage awards in Ontario.

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

The Minor Injury Guideline is Found Unconstitutional

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

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.

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.

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

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

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

Review of the law on the interpretation of exclusion clauses.

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

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

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

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

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

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

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

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

The defendant successfully brought a motion for summary judgment on the basis of the limitation period in this action over a radial keratomy eye procedure resulting in vision problems.

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.

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.

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

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

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

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

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

On January 17, 2017, the applicant drove to a hospital, parked his car, and exited the vehicle. As he was walking from his car, he slipped on ice in the parking lot.

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

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

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

Revision of the Traditional Deductions in Calculating Quantum of Damages

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

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 …

The Appellants sued the Respondents (their former solicitors) for missing the two-year limitation period, and failing to plead that the six-year limitation period applied. Among other things, the Appellants ….

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

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 …

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

The Appellant purchased a home from the Respondent. Due to a faulty design, the home leaked, and mould formed. The Appellant sued the Respondent for psychological and emotional injuries. Following a motion for summary judgment, the Appellant’s action was dismissed.

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

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

Defendant physician brought a motion post-trial to withdraw an admission made in response to the Plaintiff’s Request to Admit when it became apparent at trial that it was inconsistent with her expert’s opinion.

Court of Appeal confirms “car surfing” is within the ordinary and well known uses of a vehicle giving rise to accident benefits coverage.

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

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

Jury’s answer on causation insufficient according to Justice Wilson. New trial ordered.

Municipality found partially liable for motor vehicle accident resulting in quadriplegia

Justice Spies for the Ontario Superior Court of Justice found that an insurer is required to pay the full cost of mediation when a plaintiff requests a mediation under s. 258.6(1) of the Insurance Act.

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

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

Duty of insurer to defend or indemnify

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

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

Production of prior discovery transcripts where there may be overlapping injuries.

Plaintiff ordered to re-attend examination for discovery after court finds substantial deterioration in his behavioural and psychological condition.

Damages for Wrongful Death Quantified

This case revolved around an accident involving the Plaintiff, Susan Cuming, which occurred on November 4, 2008 while she was riding her bicycle…

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

Soccer player punched during recreational game. The Court of Appeal upholds lower court summary judgment dismissing claim against soccer team, league, coach and others

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.