Alfred Morris Kwinter

The applicants sought judicial review of an umpire's appraisal award under s. 128 of the Insurance Act following a house fire.

They alleged procedural fairness violations, bias, and unreasonableness, citing the aggressive conduct of the insurer's appraiser and the umpire's independent site visit.

The Divisional Court dismissed the application, finding that despite the insurer's appraiser's poor behavior, the applicants had a full opportunity to present their case.

The court held the umpire's process was fair, unbiased, and the resulting valuation was reasonable and intelligible.

The moving parties sought leave to appeal an interlocutory order requiring the production of a witness statement.

The Divisional Court granted the motion for leave to appeal, with costs of the motion reserved to the panel hearing the appeal and fixed at $3,000.

The applicant insurer and respondent insureds were engaged in a statutory appraisal process under the Insurance Act to determine the value of flood damage to the insureds' home.

The insurer brought an application to inspect the property and to remove the insureds' appraiser for allegedly refusing to act.

The insureds brought a cross-application seeking to compel the insurer's appraiser to identify specific disagreements and for a declaration regarding the determination of actual cash value.

The court held that the insurer retained its contractual right to inspect the property and ordered an inspection as directed by the umpire.

The court declined to remove the insureds' appraiser, finding his conduct unprofessional but not amounting to a refusal to act.

The insureds' requests were dismissed, as the umpire has exclusive jurisdiction to determine the appraisal procedure and had not exceeded his jurisdiction.

The defendants moved to dismiss the proposed class proceeding for delay under s. 29.1 of the Class Proceedings Act, 1992.

The plaintiffs did not oppose the dismissal but requested a 60-90 day delay of the effective date to locate new representative plaintiffs for a fresh action.

The court held that s. 29.1 is a mandatory provision and the court lacks discretion to delay the effective date of the dismissal.

The motion to dismiss was granted.

This decision addresses dueling motions in a protracted fire insurance dispute.

The defendant insurer, Wawanesa, sought a Rule 32 inspection of the damaged property, while the plaintiff insureds, the Arvanitopoulos family, sought directions for the appraisal process under the Insurance Act and a mandatory interlocutory injunction to compel continued Additional Living Expense (ALE) payments.

The court dismissed Wawanesa's motion as an improper reprise of a previously decided motion.

It also dismissed the Arvanitopoulos family's requests for appraisal directions, affirming the umpire's authority, and denied their mandatory injunction for ALE, citing the absence of an undertaking, a strong prima facie case, and irreparable harm.

However, as a term of dismissal, Wawanesa was ordered to continue ALE payments for May, June, and July 2022.

The applicant sought statutory accident benefits following a motor vehicle accident, claiming he sustained a catastrophic impairment.

The respondent denied the catastrophic designation, alleging the applicant was malingering, and denied treatment plans for chiropractic care and assessments.

The Tribunal found the applicant sustained a catastrophic impairment, preferring the evidence of the applicant's experts over the respondent's neuropsychologist, who used outdated tests and viewed her role as a 'detective'.

The Tribunal denied the chiropractic treatment plan as it was largely outside the scope of chiropractic practice.

The cost of a neuropsychological assessment was approved as reasonable and necessary, while a triage assessment was denied.

The appellants appealed a jury verdict dismissing their claim against their home insurer following a fire that destroyed their house and its contents.

The insurer denied coverage on the basis that the appellants failed to report a material change in risk (using space heaters instead of a wood stove) and made wilfully false statements in their Proof of Loss.

The Court of Appeal found errors in the trial judge's instructions regarding the material change in risk, but upheld the dismissal of the action because the jury's finding of 39 wilfully false statements vitiated the claim.

The court also upheld the refusal to grant relief from forfeiture due to the appellants' unreasonable conduct.

However, the court allowed the costs appeal, reducing the trial costs awarded to the insurer from $616,843.27 on a substantial indemnity basis to $430,000 on a partial indemnity basis, finding the appellants' conduct in pursuing bad faith claims was not reprehensible enough to warrant an elevated scale.

Following a decision on motions relating to an insurance appraisal process, both parties sought costs.

The court found that while success was somewhat divided, the defendant was the more successful party overall.

The court awarded partial indemnity costs of $6,547.04 to the defendant in the cause.

The defendant insurer brought a motion to appoint an appraiser on behalf of the plaintiff insureds under s. 128 of the Insurance Act following a residential fire.

The plaintiffs brought a responding motion seeking declarations that the appraisal proceed without regard to policy limits and include damages caused by the insurer's contractors.

The parties agreed on the scope of the appraisal but disagreed on whether the insurer had waived policy limits.

The court appointed the plaintiffs' chosen appraiser, noting its limited jurisdiction under s. 128(5), and ordered the appraisal to proceed without regard to policy limits but without prejudice to any rights or defences under the policy.

The applicant requested a reconsideration of a Tribunal decision denying his claims for pre-104-week and post-104-week income replacement benefits (IRBs).

The applicant argued the Tribunal erred in law by misapplying the IRB tests and erred in fact by discrediting his medical expert's report.

The adjudicator dismissed the reconsideration request, finding that the Tribunal applied the correct legal tests under the Statutory Accident Benefits Schedule and reasonably weighed the evidence.

The adjudicator noted that the Tribunal was entitled to give less weight to the applicant's expert report because it relied on self-reporting that was inconsistent with the medical records.

Following a jury trial in a fire loss action where the defendant insurer successfully defended the claim based on a material change in risk and wilfully false statements, the insurer sought costs.

The plaintiffs argued the insurer should be denied costs due to bad faith and delay tactics.

The court rejected the plaintiffs' arguments, finding they contributed significantly to the delay and failed to substantiate their aggressive bad faith allegations.

The court awarded the insurer partial indemnity costs up to the date of its settlement offer and substantial indemnity costs thereafter, totaling $616,843.27.

The applicant sought a declaration that his homeowner's insurer had a duty to defend and indemnify him in an underlying action arising from an incident at a summer camp.

The underlying claim alleged that the applicant pulled the plaintiff's head back, kneed him, and punched him, pleading both negligence and assault and battery.

The insurer denied coverage based on an intentional acts exclusion.

The court dismissed the application, finding the duty to indemnify was premature and the duty to defend was not triggered because the negligence claim was entirely derivative of the intentional tort of battery, which fell squarely within the policy's exclusion clause.

The applicant sought payment for statutory accident benefits following a motor vehicle accident, specifically four treatment plans for chiropractic services and a functional abilities assessment, which the insurer denied.

The Licence Appeal Tribunal found that two of the treatment plans for passive, facility-based chiropractic services were reasonable and necessary because they relieved the applicant's physical pain, which in turn prevented his psychological injuries from worsening.

However, the Tribunal denied a third treatment plan involving active home-based exercise as it would aggravate his pain, and denied a second functional abilities assessment as duplicative.

The applicant was awarded interest on the approved plans but denied an award for unreasonable delay, as the insurer did not have the critical evidence linking the physical treatment to the psychological injuries until the hearing.

Following a jury trial regarding a denied home insurance claim for a fire, the jury found that the plaintiffs used portable electric heaters as their primary heat source and made wilfully false statements on their proof of loss.

The plaintiffs brought a motion arguing the verdict was perverse and seeking relief from forfeiture.

The court dismissed the plaintiffs' motion, finding there was evidentiary support for the jury's conclusions and that relief from forfeiture is not available where a claimant makes wilfully false statements, as this goes beyond imperfect compliance.

Judgment was entered for the defendant insurer.

The defendant Allstate Insurance Company of Canada brought a motion for summary judgment to dismiss the plaintiff's claim for property damage following a house fire.

The fire was intentionally set by the plaintiff's husband, a co-insured, who was convicted of attempted murder against the plaintiff.

Allstate relied on an exclusionary clause in the homeowners' policy for loss or damage resulting from any intentional or criminal act by an insured person.

The court, bound by Supreme Court of Canada precedent, found the exclusionary clause unambiguous and applicable, despite acknowledging its harsh and inequitable result for the innocent plaintiff.

The court also dismissed the plaintiff's argument regarding mental capacity, finding the expert report unreliable and the act clearly intentional.

Summary judgment was granted in favour of Allstate, dismissing the plaintiff's claim.

The court, however, exercised its discretion to dispense with costs, criticizing Allstate's corporate conduct in enforcing such an inequitable clause against a victim of domestic violence.

The plaintiff appealed a Master's decision ordering him to post security for costs in the amounts of $60,000 for CanJet Airlines and $80,000 for 1791949 Ontario Limited (TGAS).

The appeal challenged the Master's findings on impecuniosity, the sufficiency of an adverse cost protection policy, and the plaintiff's chance of success.

The court upheld the Master's decision, finding no palpable and overriding error or misapprehension of evidence, and dismissed the appeal.

The appellant appealed an order declaring him a vexatious litigant under s. 140 of the Courts of Justice Act.

He argued the application judge erred by denying his request for an adjournment due to illness and by failing to consider his self-represented status, language barriers, and alleged brain injury.

The Court of Appeal dismissed the appeal, finding the application judge reasonably exercised his discretion to deny the adjournment given the appellant's history of unpaid costs and lack of proper medical evidence.

The Court also found no error in the application judge's decision to declare the appellant a vexatious litigant based on his repeated, meritless litigation against his former lawyers.

The plaintiff appealed an order of a Master granting a defendant leave to withdraw an admission in a statement of defence that a taxi driver was an employee of the taxi company.

The court applied the three‑part test for withdrawal of admissions under rule 51.05 of the Rules of Civil Procedure requiring a triable issue, inadvertence, and absence of non‑compensable prejudice.

The court held the admission was inadvertent and that the withdrawal would not cause prejudice because the plaintiff could still pursue liability against the taxi company and explore the nature of the relationship through discovery.

The potential loss of access to higher insurance limits did not constitute legal prejudice.

The appeal was dismissed.

The applicant law firms brought an application to declare the respondent a vexatious litigant under s. 140 of the Courts of Justice Act.

The respondent had a history of initiating multiple proceedings against his former lawyers, including solicitor negligence claims and assessments of accounts, while failing to pay numerous costs awards.

The court found the respondent's conduct met the criteria for a vexatious litigant and ordered that he may not institute or continue any proceeding without leave of the court.

The appellants appealed an order of the Superior Court of Justice.

The Court of Appeal found no error in the motion judge's conclusion and dismissed the appeal, awarding costs of $7,000 to the respondent.