Alan L. Rachlin

The plaintiff applied for leave to appeal a costs award of $3,000 made against him by Pitt J. The application was filed six months after the order, well beyond the seven-day limit prescribed by Rule 62.02.

The Divisional Court refused to extend the time due to the inordinate and unexplained delay.

The court also noted there was no reason to doubt the correctness of the original costs award and dismissed the application for leave to appeal, awarding $2,000 in costs to the respondent.

The plaintiff brought a motion for leave to appeal a costs order made by the trial scheduling judge, who had ordered the plaintiff to pay costs thrown away as a term of granting a further adjournment of the trial.

The plaintiff also sought an adjournment of this motion to obtain transcripts.

The Divisional Court denied the adjournment of the motion and dismissed the motion for leave to appeal, finding no error in the scheduling judge's exercise of discretion to award costs as a term of adjournment, particularly given the history of the proceeding and a prior unpaid costs order.

The respondent, an uninsured driver, was served alcohol at the appellants' bar and subsequently injured himself in a single-car motor vehicle accident.

He brought an action against the bar for taverner's negligence.

The appellants moved to dismiss the action, arguing it was barred by s. 267.6(1) of the Insurance Act, which precludes uninsured drivers from recovering damages arising from the use or operation of an automobile.

The motions judge dismissed the motion.

The Court of Appeal dismissed the appeal, holding that s. 267.6(1) applies only to damages for vehicular negligence and does not preclude a cause of action in taverner's negligence, as the motor vehicle was merely incidental to the essence of the claim.

The plaintiffs brought actions for damages arising from a motor vehicle accident against the driver, owner, lessee, and two taverns (unprotected defendants).

One of the taverns brought a motion to determine whether, as an unprotected defendant, it was liable for the whole amount of the statutory deductibles applied to protected defendants under the Insurance Act.

The trial judge held that unprotected defendants were responsible for 100 percent of the deductibles.

The Court of Appeal allowed the appeal, holding that the Insurance Act restricts the application of the Negligence Act, and unprotected defendants are only liable for the amount by which their contribution under the Negligence Act exceeds their joint and several liability with protected defendants.

The plaintiff commenced an action against his insurer for statutory accident benefits.

The plaintiff's counsel sent a settlement offer to the insurer's adjuster, which the insurer's counsel accepted.

When the plaintiff refused to proceed with the settlement because costs were to be assessed rather than fixed, the insurer moved for judgment under Rule 49.

The motions judge dismissed the motion, finding the offer was improperly served and the insurer failed to provide a notice under section 9.1 of the Automobile Insurance Regulation.

The Court of Appeal allowed the insurer's appeal, holding that the technical defect in service did not invalidate the Rule 49 offer, and that section 9.1 does not apply to settlements reached after litigation has commenced.

The plaintiff was injured in a motor vehicle accident and commenced an action more than two years later.

The defendants brought a motion for summary judgment, arguing the action was statute-barred.

The motions judge dismissed the defendants' motion and instead granted summary judgment in favour of the plaintiff on the limitation issue, finding it was not reasonably discoverable within the first 35 days that the plaintiff had suffered a serious impairment.

The Court of Appeal dismissed the defendants' appeal, holding that under Rules 20.04(2) and (4), a motions judge has jurisdiction to grant summary judgment against a moving party, and that the medical evidence supported the conclusion that the limitation defence failed.

Following a motor vehicle accident, the insured received statutory accident benefits until his insurer terminated payment and an arbitrator found that most of his health problems were not caused by the accident.

In the subsequent tort action against the tortfeasor, the motion judge held that the plaintiff was issue estopped from relitigating causation because the tortfeasor was a privy of the insurer.

The Court of Appeal reversed, holding that the statutory scheme under the Insurance Act creates separate alternative proceedings and does not support importing issue estoppel from SAB arbitration into the tort action.

The respondent had no right to participate in the arbitration and lacked the sufficient identity of interest required for privity.

The appeal was allowed and the arbitral findings were held not binding in the personal injury action.

The insurer appealed an arbitrator's decision that an excluded driver endorsement was valid but only took effect after the first of two motor vehicle accidents.

The insureds cross-appealed, arguing the endorsement was entirely invalid.

The Director's Delegate allowed the cross-appeal, finding that the endorsement was not validly executed because the insured and the excluded driver signed in the wrong places, and the insured, who faced a language barrier, did not have the requisite intent to exclude her husband.

The insurer's appeal was dismissed.

The appellant municipality appealed the dismissal of its third party claim against residential owners and occupants after a pedestrian allegedly slipped on a snow-covered public sidewalk.

The court held that the summary judgment motion was not premature because the third party respondents were entitled to challenge the legal sufficiency of the pleadings at the outset.

Applying the common law duty analysis and the framework governing statutory breach, the court held that owners of property adjacent to public sidewalks owe no common law duty to clear snow and ice absent special circumstances such as assumed control over the sidewalk or hazards emanating from their property.

The municipal by-law requiring snow clearing did not impose civil liability or displace the municipality's statutory duty under the Municipal Act.

The appeal was dismissed with costs.

The applicants were injured in two motor vehicle accidents in 1995.

The insurer argued that an excluded driver endorsement signed by the applicants barred the husband from receiving further statutory accident benefits, as he was driving the wife's vehicle at the time of both accidents.

The arbitrator found that the endorsement was valid and understood by the husband, but the insurer could only rely on it for the second accident because it had not received the signed endorsement prior to the first accident.

The endorsement barred the husband's claim for income replacement benefits for the second accident, but had no effect on the wife's claims for benefits.

The applicant was injured in a pedestrian motor vehicle accident and received statutory accident benefits until the insurer terminated weekly income benefits.

The applicant applied for arbitration but failed to attend the hearing or maintain contact with her legal representatives, who were permitted to withdraw.

Proceeding in her absence, the arbitrator accepted the insurer's uncontested medical evidence that the applicant did not suffer from a physical or psychological impairment preventing her from working.

The claim for benefits was dismissed, and the applicant was ordered to pay the insurer's legal expenses of $1,636.95, though the arbitrator declined to order the applicant to pay the insurer's filing fee as the initial claim was not frivolous or vexatious.

The applicant was injured in a motor vehicle accident and received weekly income benefits for five years before the insurer terminated them.

The applicant sought ongoing benefits under subsection 12(5) of the Statutory Accident Benefits Schedule, claiming she was continuously prevented from engaging in any suitable employment due to a psychological disability.

The arbitrator found the applicant credible and rejected the insurer's argument, based on video surveillance and one psychiatric opinion, that she was feigning her disability.

The arbitrator concluded the accident significantly contributed to her post-traumatic stress disorder and major depression, rendering her totally disabled.

The arbitrator also fixed the weekly benefit amount at $311.66 based on the insurer's own accountant's report, and dismissed the insurer's claims for repayment and post-accident income deductions.

The applicant sought an assessment of expenses following the settlement of an arbitration for statutory accident benefits.

The arbitrator assessed legal fees and disbursements, applying the Legal Aid Tariff rate.

The arbitrator held there was no jurisdiction to award interest or a special award on arbitration expenses, as the relevant statutory provisions apply only to the payment of benefits.

The arbitrator also held that an expense assessment is an integral part of the arbitration process and awarded the applicant expenses for the assessment hearing itself.

The respondents were involved in a motor vehicle accident and initially diagnosed with soft tissue injuries.

More than two years later, a CT scan revealed a herniated disc, prompting them to commence a tort action.

The appellant argued the action was statute-barred under the two-year limitation period in the Highway Traffic Act.

The Supreme Court of Canada held that the discoverability principle applies to the limitation period.

Because the right of action does not arise until the injury meets the statutory threshold under the Insurance Act, the limitation period does not begin to run until the material facts of sufficient injury are reasonably discoverable.

The appeal was dismissed.

The applicant was injured in a motor vehicle accident and received statutory accident benefits.

After her benefits were terminated, she applied for arbitration to reinstate weekly income and housekeeping benefits.

During the arbitration hearing, the insurer moved to include claims for repayment of benefits previously paid, alleging they were paid in error.

The arbitrator allowed the insurer to add the repayment claims for weekly income and housekeeping benefits, finding they naturally flowed from the issues in dispute, but granted the applicant an adjournment to respond.

The applicant subsequently withdrew her application for arbitration and moved for her expenses.

The arbitrator awarded the applicant her expenses, finding the insurer failed to raise the repayment issues in a timely manner, which would have minimized expenses.