Summaries Category Archives

[The Applicant] by his Guardian, K. R. v. Unifund Assurance Company, 2019 CarswellOnt 7818

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

16-001683 v. State Farm Mutual Automobile Insurance Company

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.

16-002782/AABS v. Aviva Canada Insurance, 2018 CanLII 39370 (ON LAT)

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.

17-000835 v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT)

After exhausting the $3,500 monetary limit available under the Minor Injury Guidelines, Aviva denied his claims for further treatment, arguing that the chronic pain that the Applicant developed does not entitle him to any additional benefits beyond the MIG limits.

2343697 Ontario Inc. v. Aviva Insurance Company of Canada, 2019 ONSC 3016 (CanLII)

A.J. v. Security National Insurance Co., 2021 CarswellOnt 6104

The Applicant was injured on or about May 27, 2016, and sought benefits pursuant to O. Reg. 34/10 effective September 1, 2010. The Respondent, Security National Insurance refused to pay for specific benefits, including an award pursuant to Regulation 664, interest, and costs…

A.K. v. Allstate Insurance, 2020 CanLII 14418 (ON LAT)

In this case, the Applicant was the seat-belted driver of a vehicle that struck a median, spun out of control, struck another vehicle and came to rest after hitting the guardrail in July, 2010. The Applicant submitted an application for catastrophic determination, which was denied by the insurer…

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

Ahmed v. Aviva Insurance Company

In the recent case of Ahmed v. Aviva Insurance Company, Aviva Insurance Company proceeded with a motion to dismiss an application as abandoned, despite previous counsel’s death and the applicant’s personal barriers, and was found by Vice Chair Maedel to have acted in bad faith. In the result, the motion was dismissed and Aviva was ordered to pay costs to the applicant…

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 …

Anjum v. Doe, 2018 ONSC 4344

When a solicitor is discharged by the client, the solicitor is entitled to a charging order where the property was preserved or recovered while he or she was acting on the client’s behalf…

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

Applicant v. Co-operators 2020 CanLII 30387

Further clarity about limitation periods in CAT cases….

Limitation period starts to run not from the date of CAT designation, but from the date benefits claimed for, based on that designation, are denied.

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.

Armstrong v. Ward, 2021 SCC 1

In this case, the Plaintiff appealed the majority decision of the Ontario Court of Appeal and was granted leave in May 2020. The case was argued before the Supreme Court of Canada (SCC) on January 18, 2021. The SCC released their decision from the bench on the day of argument, siding with the plaintiff and adopting the dissenting reasons of Justice van Rensburg.

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. …

Austin Benson v. Belair Insurance Co. Inc., 2018 ONSC 2297 (CanLII)

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”).

Aviva Canada Inc. v. Sidhu, 2018 ONSC 6506 (CanLII)

The Divisional Court affirms a declaration that the insurer’s denial of IRBs was defective (18 years later) and therefore the limitation period had not been triggered.

Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200

The Divisional Court decision of Aviva v. Suarez is a recent SABS decision that has important ramifications for the public pertaining to the access to injury victims of benefits provided for in the Statutory Accident Benefits Schedule…

Aviva Insurance Company of Canada v. J.A., 2021 ONSC 3185 (Div. Ct.)

In this case, the Respondent, J.A. was injured in a motor vehicle accident in February 2005. He applied for accident benefits through his insurer, Aviva. In 2015, around the time when his medical rehabilitation benefits were expiring, he applied for catastrophic impairment determination. Although Aviva found there was insufficient medical documentation, it nonetheless conducted its CAT assessments which later found he was not catastrophically impaired…

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.

Babjak v. Karas, 2018 ONSC 2093 (CanLII)

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.

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.

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.

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.

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.

Ben Yehudaiff vs. TD Insurance Meloche Monnex, 2019 ONLAT 18- 001537/AABS

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.

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.

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.

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

Bosnali v. Michaud, 2020 ONCA 7

A recent decision of the Ontario Court of Appeal on the issue of whether or not the Plaintiff’s lawyers were entitled to a “charging order” over the Plaintiff’s damages and costs following a trial where the Plaintiff did not beat a rule 49 offer from the Defendants.

Boustany v. Singh, 2021 ONSC 3140 (CanLII)

In a recent Ontario Superior Court decision, Boustany v. Singh, Justice Gibson explored the initial duty of care element in the law of negligence within the context of a Rule 21.01(1) motion…

Bradfield v. Royal Sun Alliance Insurance, 2019 ONCA 800

In this case, the Court of Appeal of Ontario reviewed the doctrines of waiver and promissory estoppel in the context of an insurer’s right to deny coverage following the discovery that their insured had been consuming alcohol prior to a motor vehicle accident…

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 …

Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 OR (3d) 561.

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 ….

C.O. v. Williamson, 2020 ONSC 3874

In this case, Justice Salmers found a school board vicariously liable for historical sexual abuse of a student by her teacher and ordered both defendants to pay more than $500,000 in damages. This is an important decision as it imposes liability for the abuse on the school board in the absence of any evidence of wrongdoing on the part of the school board.

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.

Capelet v. Brookfield Homes (Ontario) Limited, 2018 ONCA 742 (CanLII)

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.

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 …

Carter v. AVIVA Insurance Company of Canada, 2021 ONLAT 19-012446/AABS-M

In this case, the Plaintiff was injured in a motor vehicle collision on August 16, 2018. He applied to AVIVA for Statutory Accident Benefits including income replacement benefits. AVIVA denied IRB’s in April of 2019 after the Plaintiff completed a multidisciplinary suite of insurer examinations required by AVIVA…

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 …

Champoux v. Jefremova and Khodabandehloo, 2021 ONCA 92

In this case, the Court of Appeal found that the trial judge’s reasons for dismissing the claim were insufficient, did not permit proper appellate review and sent the matter back for retrial. The Court of Appeal also gave important reasons on the defendant’s attempt to withdrawal an admission made in a Request to Admit.

Champoux v. Jefremova et al [2019] ONSC 1819 (CanLII)

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.

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 …

Cheesman et al., v. Credit Valley Hospital et al., [2019] ONSC 5783

This motion considered the admissibility of a defendant ER physician’s standard of care report that was served mid-trial after a preliminary finding was made regarding the scope of the expert’s opinion in relation to his area of practice.

Cheung v. Samra, 2022 ONCA 195

In this case, the plaintiff was diagnosed with intrauterine growth restriction (IUGR) before birth, and her condition continued to worsen in the weeks prior to her delivery. While she was not suffering notable impairments when she was discharged, two months later she was revealed to have suffered severe brain damage…

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.

Cioffi v. Modelevich et. al., 2018 ONSC 7084

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.

Clarke v. Sun Life Assurance Company of Canada, 2020 ONCA 11

Clarke v. Sun Life Assurance Company of Canada is an appeal decision following a summary judgment motion on the issue of whether or not the plaintiff sued her Long-Term Disability (LTD) carrier within the limitation period.

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)

Coban v. Declare, 2020 ONSC 5580

In this case, the plaintiffs brought a motion to strike the jury notice and the defendants brought a cross-motion to adjourn the trial because the pandemic has interfered with their ability to obtain responding medical reports…

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 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 …

Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076

n a much-anticipated employment law ruling, the Superior Court has found that employees temporarily laid off because of the COVID pandemic can bring civil action for constructive dismissal…

Cowley v. Skyjack Inc. et al, 2021 ONSC 1303 (CanLII)

In this case, an Ottawa judge recently applied the Ontario Court of Appeal’s analysis in Louis v. Poitras, 2021 ONCA 49 to strike the jury notices filed. While the procedural history in this case is unique, the motion turned on a relatively straightforward analysis that confirms the prejudicial effect of delay…

Cueto et al. v. De Los Reyes

In this case, the plaintiffs brought a motion seeking leave of the court to strike the defendants’ jury notice. This action arises out of a motor vehicle accident that occurred on January 14, 2015. The action was set down for trial in September 2018.

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 …

Da Silva v. Gomes, 2018 ONCA 610 (CanLII)

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

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. …

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)”.

Davies v. Clarington, 2019 ONSC 2292 (CanLII)

In this case, the court analyzed whether interest on litigation loans should be a payable disbursement and also outlined several key principles to the assessment of costs…

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.

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.

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 …

Doobay v. Fu, 2020 ONSC 1774 (CanLII)

The Plaintiff, Carmen Doobay, presented at hospital with, what she alleged, were signs and symptoms of a stroke. She claimed that the treating emergency professionals, a nurse and a physician, failed to recognize those signs and symptoms…

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”). …

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

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. …

Estate of John Edward Graham v. Southlake Regional Health Centre, 2019 ONSC 391 (CanLII)

The Plaintiffs succeeded in adding a defendant more than six years after the death anniversary of the deceased based on the special circumstances doctrine.

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 …

Eynon v. Simplicity Air Ltd., 2021 ONCA 409

In Eynon v. Simplicity Air Ltd, the Court of Appeal addressed a significant punitive damage award in a case where the plaintiff contributed considerably to the incident that caused his injury.

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

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.

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

Foster v Aviva, 2021 CanLII 117413

This Reconsideration Decision involves the issue of whether the applicant can receive both the Canada Recovery Benefit (“CRB”) and the Canada Emergency Response Benefit (“CERB”) and Income Replacement Benefits IRBs.

Foster v. Aviva Gen. Ins. Co., 2021 CanLII 117413 (ON LAT)

Recently, in the Reconsideration Decision of Foster v. Aviva, Vice-Chair Boyce of the LAT tackled the issue of whether the CRB and CERB are deductible from IRBs…

Francisco v. Li, 2021 ONSC 1032

In this case, the motion to strike the defendant’s jury notice due to delays caused by the COVID-19 pandemic was brought pursuant to r. 47.02 of the Rules of Civil Procedure…

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.

Fratarcangeli v. North Blenheim

On June 15, 2021, the Divisional Court released its long-awaited decision on three appeals, which all related to whether the Licence Appeal Tribunal (LAT) has the jurisdiction to extend the two year limitation period for disputing accident benefits claims under the Statutory Accident Benefits Schedule. The LAT had been releasing inconsistent decisions as to whether it had this jurisdiction, and clarity was required from the appeal court…

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.

Gennett Lumber Co., v. John Doe a.k.a. Milton Harvey et al., 2019 ONSC 1345

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”

Gopie v. Ramcharran, 2019 ONCA 402

In this Court of Appeal decision, the plaintiffs appealed the trial decision that, after set off, resulted in zero recovery with a further $22,406.37 in costs awarded to the defendant.

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.

Graul v. Kansal, 2022 ONSC 1958

A reminder that expert witnesses retained by both plaintiff and defendant counsel are expected to give evidence in a way that is objectively helpful to the court, and not influenced by which side that retains their services.

Grewal v. Peel Mutual Insurance Company, 2021 CanLII 111183 (ON LAT)

In this case, the original LAT decision denied the applicant’s motion to add the issue of punitive damages in the amount of $150,000.00. On reconsideration, Adjudicator Mazerolle again denied the applicant’s request…

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 …

Gullett v. Regina Qu’Appelle Health Region, [2019] SKQB 15

A plaintiff must have knowledge beyond “mere suspicion” for a limitation period to commence, and in some cases, additional medical information is required for the plaintiff to have the requisite knowledge to discover his or her claim for an alleged medical complication.

Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545

In this case, the plaintiff died in 2011 of stage IV uterine leiomyosarcoma (“uLMS”), which had metastasized to her lungs. The allegation at the centre of the lawsuit was that her gynecologist failed to perform a routine endometrial biopsy in 2009 and that, if he had, her cancer would have been detected at an early stage such that her death could have been avoided through proper treatment…

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

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.

Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318

Insurers’ mere boilerplate reasons for denying treatment will no longer suffice in light of this Licence Appeal Tribunal (“LAT”) decision, which was upheld on appeal.

Henderson v. Slavkin et al, 2022 ONSC 2964

Full Decision In this case the court considered the effect of a termination clause which provided for termination without notice in case of a breach of confidentiality or conflict of interest. Material facts The defendants operated a dental surgery practice in the GTA. Both doctors are now retired. The plaintiff was the receptionist since 1990. Her employment was terminated on April 30, 2020. Her annual …

Henry v. Zaitlen, 2021 ONSC 456

The Ontario Superior Court in Toronto recently dismissed the defendant’s motion to strike the jury notice in Henry v. Zaitlen 2021 ONSC 456, days after the Ontario Court of Appeal’s decision in Louis v. Poitras, 2021 ONCA 49…

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’.

Isaac Estate v. Matuszynska, 2018 ONCA 177 (CanLII)

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

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.

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 …

John Hall v. Regional Municipality of Niagara Police Services Board et al.

In this case, the defendant GM experienced a fire at their St. Catherine’s plant which led to a series of events resulting in the arrest of the plaintiff Hall, and a finding of not guilty at the criminal trial, followed by civil proceedings against GM, the Niagara Police Services Board and several of its police officers…

Johnson v. Brielmayer, 2021 ONSC 1245 (CanLII)

In this case, the plaintiff was successful in striking the defendant’s jury notice. This was the first decision out of the Toronto Region where a plaintiff was successful in striking the defendant’s jury notice…

Joseph v. Debs, 2022 ONSC 837

A motion under rule 30.10 of the Rules of Civil Procedure brought within a civil action alleging libel, seeking a complete and unredacted Crown Brief in an ongoing criminal sexual assault prosecution.

K.D. v. Aviva Insurance Company, 2020 ONLAT 18-011646/AABS

In the recent decision before the Licence Appeal Tribunal (LAT), K.D. v. Aviva Insurance Company, 2020 ONLAT 18-011646/AABS,Vice Chair Farlam clarified some long-held differences of opinion between insureds and insurers – or affirmed the interpretation of unambiguous statutory legislation, depending on whom you ask – regarding the calculation of a weekly base amount for income replacement benefits payable to self-employed motor vehicle accident victims.

K.H. v. Aviva Insurance Company, 2020 ONTLAT 19-013941/AABS

In this case, Aviva subjected to pay order for unreasonably withheld or delayed payments for having “stubbornly maintained its denial and forced a hearing where it, for the first time post-accident, raised causation issues”…

K.K. vs. Aviva General Insurance, 2020 ONLAT 18-012611/AABS

In this case, the insurer was ordered to pay special award for unreasonably held or delayed payment of IRBs after ignoring severity of psychological impairments and reports of its own assessors…

K.Y. v. Aviva Insurance Company, 2022 ONLAT 19-001720/AABS

Following a 6-day video-conference hearing, Adjudicator Lake ruled that the Applicant was entitled to payment of income replacement benefits in the amount of $400.00 per week from July 17, 2019 to date and ongoing, plus interest in accordance with s. 51 of the SABS…

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.

Kalk v Intact Insurance Company, 2022 CanLII 45275

This decision demonstrates that for catastrophic cases, the LAT has made it clear that properly qualified experts will lose credibility if they do not have sufficient expertise in the areas for which they are providing WPI rating.