Andrew Leroy Rudder

The plaintiff, Timothy Watkins, brought two actions against his mother's insurer, Western Assurance Company: an accident benefits claim and a derivative claim.

Western Assurance brought two motions seeking to dismiss these actions.

The court granted summary judgment, dismissing the accident benefits claim due to the plaintiff's failure to submit an application for benefits and the expiry of the limitation period.

However, the court dismissed Western Assurance's motion to strike the derivative claim, finding it was not plain and obvious that this claim, which included contractual claims as an unnamed insured, was certain to fail.

Costs ruling following a summary judgment motion in an insurance dispute.

The moving party successfully obtained summary judgment dismissing claims for wrongful infliction of mental distress, bad faith, and aggravated, punitive, and exemplary damages totaling $1.2 million, but failed to dismiss the primary claim for breach of contract.

The court held that both parties achieved partial success on the motion.

Considering the divided success and the parties’ written submissions, the court exercised its discretion to make no costs award.

The defendant insurer brought a motion for summary judgment dismissing an insured’s claims for breach of contract, intentional infliction of mental distress, bad faith, and aggravated, punitive and exemplary damages arising from the denial of non-earner accident benefits.

The court held there was a genuine issue requiring a trial on whether the insurer’s 2004 denial complied with the Statutory Accident Benefits Schedule, including the notice requirements under s. 32 and related provisions, and therefore whether the limitation period was triggered.

However, the court granted summary judgment dismissing claims for mental distress, bad faith, and punitive-type damages.

The court found the insurance contract was not a “peace of mind” contract whose breach would reasonably contemplate psychological harm, the alleged mental suffering was insufficient to warrant compensation, and the insurer’s conduct did not amount to bad faith or high‑handed misconduct.

A costs decision following a motion concerning deficiencies in the plaintiff’s affidavit of documents.

The defendant submitted that significant time had been spent attempting to obtain a properly particularized affidavit of documents from the plaintiff.

The plaintiff failed to provide submissions on costs despite being contacted by the court.

Considering the divided success on the underlying motion and the absence of submissions from the plaintiff, the court ordered that no costs be awarded to either party.

The defendant lawyer brought a motion seeking an order requiring the plaintiff to deliver a further and better affidavit of documents and to post security for costs under Rule 56.01 of the Rules of Civil Procedure on the basis that the plaintiff resided outside Ontario.

The court held that the plaintiff’s documentary disclosure lacked sufficient particularity and ordered the plaintiff to provide a more detailed affidavit identifying individual physiotherapy records to facilitate discovery and trial.

However, the court declined to order security for costs after finding the plaintiff was impecunious and that the legal malpractice claim was not clearly devoid of merit.

Given the plaintiff’s financial circumstances, ordering security would effectively terminate the action before its merits could be determined.

The motion for security for costs was dismissed without prejudice to renewal following discovery.