Ava Hillier

This decision addresses whether the owner of a vehicle (Floyd Thomas) provided implied consent to his son (Robert Thomas) to possess and operate the vehicle, which was involved in a serious accident.

The court found that there was no implied consent, based on clear evidence that Robert knew he did not have permission, and that Floyd had a consistent history of restricting access.

The court declined to dismiss the action entirely, as other negligence issues remained for trial.

The applicants obtained a default judgment against their former lawyer for missing limitation periods in their personal injury claims.

They sought to garnishee the lawyer's professional liability insurance policy with LawPro.

LawPro had denied coverage because the lawyer completely failed to report the claim or cooperate in its defence.

The court dismissed the motion, finding that LawPro's denial of coverage was appropriate due to the lawyer's fundamental breach of the policy's cooperation condition.

Relief from forfeiture was unavailable, and public policy did not require LawPro to operate as a no-fault insurer.

Following the dismissal of the plaintiffs' personal injury action on summary judgment, the court determined the costs payable.

The defendants sought costs from the plaintiffs and argued the plaintiffs should also be liable for the costs of the third parties, whom the defendants had joined.

The court applied the general rule that an unsuccessful plaintiff is not responsible for the costs of third parties they did not sue, finding no exceptional circumstances to depart from this rule.

The plaintiffs were ordered to pay the defendants $44,000 in partial indemnity costs, while the defendants were ordered to pay the full costs claimed by the various third parties, totaling over $133,000.

The plaintiff, Timothy Bonello, was severely injured in a tug-of-war game at Gores Landing Marina, resulting in hand amputation.

He sued the Marina and its owner-operators for negligence under the Occupiers' Liability Act.

The defendants brought a summary judgment motion to dismiss the main action.

The court granted the motion, finding that the defendants met the reasonable standard of care.

The Marina was not obliged to prohibit recreational activities or supervise tenant-organized events, nor could it have reasonably foreseen the specific circumstances leading to the injury, such as the use of a looped rope or the lack of rudimentary safety equipment.

The applicant, who was injured in a motor vehicle accident, sought an interim award of expenses under s. 282(11.1) of the Insurance Act to cover the cost of two catastrophic assessment reports.

The arbitrator applied the three-part test from Bernicky, finding that while the issue was bona fide and the reports were necessary for the arbitration, the applicant failed to demonstrate an inability to carry the expenses.

The applicant provided only a bald assertion of inability to pay, while evidence showed she owned a home, maintained her real estate license, and received CPP payments.

The motion for interim expenses was dismissed.

The Applicants, judgment creditors of Wayne Sydney Novak, brought a motion to compel Lawyers Professional Indemnity Company (LAWPRO), the garnishee, to produce documents and for further cross-examination of its representative regarding Novak's professional liability insurance coverage.

LAWPRO had denied coverage to Novak and filed a garnishee statement denying indebtedness.

LAWPRO brought a cross-motion to strike portions of the Applicants' amended notice of motion, arguing lack of standing and privity of contract.

The court dismissed LAWPRO's motion to strike, finding the issue of coverage relevant to the garnishment hearing.

The court partially granted the Applicants' refusals motion, ordering further cross-examination of LAWPRO's representative on coverage and production of LAWPRO's file (excluding communications with defense counsel protected by joint solicitor-client privilege).

However, the court denied production of defense counsel's file, affirming it was protected by joint solicitor-client privilege between LAWPRO and Novak.

Following the dismissal of the plaintiffs' action on a summary judgment motion, the successful defendant sought partial indemnity costs of $42,469.53.

The plaintiffs opposed the costs award, arguing that special circumstances justified denying costs to the defendant.

The court rejected the plaintiffs' arguments, finding no unreasonable conduct by the defendant.

The court reduced the claimed fees slightly due to some duplication of work and awarded the defendant $29,000 in fees, plus HST and $6,650 in disbursements, subject to clarification on a potential setoff claimed by the plaintiffs.

The moving insurer sought summary judgment dismissing an underinsured motorist claim arising from a Florida motor vehicle accident.

The responding insureds had settled the Florida action for US$300,000 despite the tortfeasor's US$1,000,000 policy limits, and then sought recovery under the OPCF 44R Family Protection Endorsement.

The court held that the insureds were not entitled to rely on an unsupported assertion of the tortfeasor insurer's potential insolvency where they had not conducted due diligence to determine whether the policy limits were unavailable at the time of settlement.

Applying Rule 20 and the governing underinsurance authorities, the court found no genuine issue requiring a trial and dismissed the action.

Following a summary judgment dismissing the plaintiffs’ claim against a municipal defendant, the court addressed costs.

The defendant municipality sought costs of the entire action on a partial indemnity basis, arguing it had succeeded in having the claim against it dismissed.

The plaintiffs argued that awarding full action costs was premature because the municipality remained involved through a cross-claim.

The court agreed that it was inappropriate to assess all action costs before trial but held that reasonable partial indemnity costs for the summary judgment motion were warranted.

The court reduced the requested preparation and attendance costs and awarded a portion of the claimed disbursements attributable to the motion.

The defendant City of Brampton brought a motion for summary judgment to dismiss the plaintiffs' personal injury claim arising from a slip and fall on an icy municipal sidewalk.

The City argued the claim was statute-barred because the plaintiffs failed to provide written notice within 10 days of the injury, as required by s. 44(10) of the Municipal Act.

The plaintiffs provided notice 18 months later.

The court found that the plaintiffs failed to establish a reasonable excuse for the delay under s. 44(12), as the injured plaintiff knew the cause of his fall and the responsible party on the day of the incident, and his injuries were apparent within months.

The court also found the plaintiffs failed to prove the City was not prejudiced by the delay.

The motion for summary judgment was granted and the claim against the City was dismissed.

The applicant sought medical and rehabilitation benefits and income replacement benefits following a 1991 motor vehicle accident.

The insurer raised preliminary issues regarding limitation periods.

The arbitrator held that the applicant was precluded from claiming medical and rehabilitation benefits for services supplied beyond the 10-year anniversary of the accident, pursuant to section 6(3) of the Schedule.

The arbitrator also held that the claim for income replacement benefits was statute-barred because the application for mediation was filed more than two years after the insurer's clear and unequivocal refusal to pay benefits.

The defendant doctor moved for leave to appeal two interlocutory decisions dismissing his motion for summary judgment in a medical malpractice action.

The motions judge had allowed the plaintiff to file a late affidavit without complying with language requirements and had dismissed the summary judgment motion despite the plaintiff failing to file any expert medical report.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the orders and that the proposed appeal involved matters of importance, including the necessity of expert evidence in medical malpractice cases and the application of the limitation period.

The applicant, who was a minor at the time, filed an Application for Arbitration for statutory accident benefits.

The insurer raised a preliminary issue arguing the application was a nullity because the applicant lacked capacity to contract for legal services and failed to appoint a litigation guardian under the Dispute Resolution Practice Code.

The arbitrator held that the retainer and application were voidable, not void ab initio, as they were for the applicant's benefit.

The failure to appoint a litigation guardian was a procedural defect that did not invalidate the proceeding.

The applicant was granted time to ratify the application upon reaching the age of majority.

The applicant, a plumber, was injured in a motor vehicle accident and sought income replacement benefits (IRBs) after the insurer terminated them.

The arbitrator found that the accident aggravated the applicant's pre-existing back condition, causing a substantial inability to perform the essential tasks of his job, particularly driving long distances and working in awkward positions.

The applicant was awarded IRBs for the disputed period, along with interest.

Claims for medical assessment expenses and an MRI were dismissed as they were either arbitration expenses or not properly claimed under the Schedule.

The claim for a special award was also dismissed, as the insurer had a justifiable basis for terminating benefits based on a DAC report.

The plaintiff's husband died after receiving emergency medical care from provincial attendants.

The plaintiff sent a letter to the Ministry of Health expressing concerns about the care, which prompted an investigation.

The Province later moved to dismiss the plaintiff's subsequent wrongful death action, arguing the letter did not constitute formal notice of a claim under s. 7(1) of the Proceedings Against the Crown Act.

The Court of Appeal allowed the appeal, holding that the letter provided sufficient particulars to identify the occasion and allow the Crown to investigate, thereby satisfying the statutory notice requirement.

Following the dismissal of the applicant's arbitration for statutory accident benefits, the insurer sought an assessment of its expenses.

The arbitrator awarded the insurer legal fees for 36 hours of preparation and attendance, along with reasonable disbursements.

The insurer's claim for a $3,000 assessment fee under subsection 282(11.2) of the Insurance Act was denied because it was not raised during the arbitration hearing.

The insurer was also denied the costs of the expense assessment itself, as the applicant successfully disputed the assessment fee claim.

The appellant was injured in a snowmobile accident while receiving temporary total disability benefits from the Workers' Compensation Board for a prior workplace injury.

He appealed an arbitrator's decision calculating his weekly income benefits under the Statutory Accident Benefits Schedule by averaging his employment income over the full 52 weeks preceding the accident, without including his WCB benefits as income from employment.

The Director's Delegate dismissed the appeal, confirming that the statutory language requires averaging over the full 52 weeks and that WCB benefits do not constitute income from employment under the applicable Schedule.

The claim for a special award was also dismissed.

The applicant was involved in a motor vehicle accident and subsequently applied for income replacement benefits, claiming she was substantially disabled from her employment as a waitress due to a liver ailment, abdominal pain, and a soft tissue injury.

The insurer denied the claim.

At arbitration, the arbitrator found that the applicant failed to present reliable, objective medical evidence linking her liver fistula or abdominal pain to the accident, or proving that any soft tissue injury substantially disabled her from working.

The claim for income replacement benefits was dismissed.

Furthermore, the arbitrator exercised her discretion under section 282(11) of the Insurance Act to deny the applicant her arbitration expenses and ordered her to pay the insurer's expenses, finding the claim lacked merit and abused the arbitration process, though the insurer was denied expenses for one day due to unnecessarily prolonging the proceeding.

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

The Insurer terminated weekly income benefits, leading to an arbitration.

The main issues were the calculation of the Applicant's pre-accident income, whether the Insurer could deduct potential Canada Pension Plan disability benefits, and claims for a special award and repayment of overpaid benefits.

The Arbitrator held that the Applicant's income should be averaged over 52 weeks, resulting in the minimum benefit rate.

The Insurer was not permitted to deduct CPP benefits since the Applicant had applied for them but not yet received them.

The claims for a special award and repayment of overpaid benefits were dismissed, and the Applicant was awarded expenses.

The applicant was injured in a motor vehicle accident and received physiotherapy treatments.

His employment insurer paid 80% of the cost, and the no-fault insurer paid the remaining 20%.

The applicant sought full reimbursement from the no-fault insurer, arguing that the employment benefits were not 'reasonably available' because they reduced his lifetime maximum coverage.

The arbitrator dismissed the claim, finding that the employment benefits were reasonably available and that the no-fault insurer is a secondary insurer under the No-Fault Benefits Schedule.

The applicant was awarded his arbitration expenses for bringing an arguable case on a novel issue.