Barry A. Percival

The applicant suffered severe burns when gasoline spilled from his taxi's gas tank during repairs at a garage and ignited.

The insurer denied statutory accident benefits, arguing the fire was an independent intervening act that broke the chain of causation from the vehicle's repair.

The arbitrator found that the injuries were directly caused by the use or operation of the vehicle, as the repair process set in motion an unbroken chain of events leading to the fire.

The presence of fire hazards in a garage was considered a normal incident of the risk created by repairing a vehicle.

The applicant was deemed to have been injured in an 'accident' under the Schedule and was awarded expenses for the preliminary hearing.

The appellant insurer appealed a trial judgment finding it liable under an errors and omissions policy, arguing the insured's conduct fell within the 'intentional wrongful act' exemption.

The Court of Appeal dismissed the appeal, holding that the exemption applies to intentional torts, not deliberate acts of negligence, and upheld the trial judge's finding that the insured did not intend economic harm.

The Court also rejected the appellant's argument that prejudgment interest should run from the date of the current action rather than the underlying action, as the policy obligated the payment of interest from the commencement of the underlying action.

The applicant was injured in a serious motor vehicle accident and received income replacement benefits (IRBs).

The insurer terminated IRBs after the applicant attempted a return to work but had to stop due to severe headaches and vomiting.

The insurer later reinstated benefits and paid arrears on the eve of the arbitration hearing.

The arbitrator found that the insurer unreasonably withheld benefits by ignoring the overwhelming medical evidence from treating practitioners and selectively reading its own experts' reports.

The arbitrator awarded a special award of $25,000, inclusive of compound interest, under s. 282(10) of the Insurance Act.

The appellant appealed a trial judgment finding it liable for a fire that destroyed a Quonset hut on the respondent's property.

The fire started in a partition wall near a furnace maintained by the appellant, through a process called pyrolysis.

The appellant argued the trial judge failed to explicitly address whether the furnace was insulated, which was necessary for pyrolysis to occur.

The Court of Appeal dismissed the appeal, finding that by accepting the respondent's expert evidence, the trial judge implicitly found the furnace was not insulated, and there was no misapprehension of evidence.

Three insurance companies disputed the funding of a $1,995,000 settlement arising from a motor vehicle accident.

The primary insurer's liability was capped at the $200,000 statutory minimum due to the insured's material misrepresentation regarding the vehicle's use as a taxi.

The two underinsured motorist insurers were ordered to contribute the balance on a pro rata basis in proportion to their policy limits.

On appeal, the Court of Appeal upheld these findings but reversed the motion judge's decision that the primary insurer should bear all costs, ordering instead that the three insurers share the $155,000 costs component equally.

The appellant company sought payment of a $5 million key-man life insurance policy following the death of its principal from colon cancer.

The trial judge dismissed the action, finding the deceased materially misrepresented his medical history at the time of application and failed to disclose a change in insurability before the policy was delivered.

The Court of Appeal upheld the dismissal, agreeing that the failure to disclose relevant medical information rendered the policy voidable by the insurer under section 183 of the Insurance Act.

The plaintiff was involved in two separate motor vehicle accidents and sued multiple defendants, including her own insurer, State Farm, because one driver was uninsured.

At trial, one defendant, Hnatiuk, was found 100% responsible for the first accident, and the action against State Farm was dismissed.

The trial judge refused to order Hnatiuk to pay State Farm's costs (a Bullock or Sanderson order) and awarded the plaintiff solicitor-and-client costs against Hnatiuk based on an unaccepted offer to settle that included escalating costs.

On appeal, the Court of Appeal allowed the plaintiff's appeal, granting a Sanderson order directing Hnatiuk to pay State Farm's costs.

The Court dismissed Hnatiuk's appeal regarding the costs award, upholding the solicitor-and-client costs either under the discretion of Rule 49.13 or as a valid Rule 49 offer.

During an arbitration hearing for a special award under the Insurance Act, the applicant sought production of the insurer's adjusters' notes.

The insurer produced the notes but redacted certain entries, claiming solicitor-client privilege.

The applicant argued that solicitor-client privilege does not exist in a first-party claim until benefits are terminated, and that any privilege was implicitly waived by the insurer's reliance on its state of mind.

The arbitrator held that solicitor-client privilege can apply to communications with in-house counsel prior to the termination of benefits.

The arbitrator found that most of the redacted entries were protected by solicitor-client privilege and that the insurer had not implicitly waived the privilege merely because the applicant claimed a special award.

However, the arbitrator ordered the production of one entry authored by a claims person and a portion of another entry unrelated to reserves.

The appellant appealed a trial judgment, arguing the trial was unfair due to the participation of counsel for a settling defendant under a Mary Carter agreement, and that there was no negligence in leaving a trailer parked on the roadway.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's handling of the extra counsel and upholding the finding of negligence based on the foreseeable danger of accumulated sand and gravel near the parked trailer.

Medical negligence appeal arising from a catastrophic birth injury after an emergency Caesarean section.

The appellants challenged the trial judge's findings on negligence and causation, numerous evidentiary rulings concerning expert reports, foundational facts, discovery corrections, and cross-examination, and alleged a reasonable apprehension of bias based largely on the trial judge's handling of extreme incivility by defence counsel during a 165-day trial.

The Court of Appeal held there was ample evidence supporting the findings that no negligence was proven and that the injury was caused by a sudden placental abruption.

It further held that virtually all evidentiary rulings were correct, any errors were inconsequential, and an informed observer would not apprehend bias.

The appeal was dismissed, but the trial judgment was varied so the dismissal was without costs.

The applicant sought review of a single judge’s order refusing an extension of time to appeal the dismissal of two civil actions tried together, one arising from a motor vehicle accident and the other from an alleged solicitor negligence claim connected to earlier accident litigation.

The court gave the applicant the benefit of the doubt on delay but held there was no basis to disturb the single judge’s conclusion that the proposed appeal lacked sufficient merit.

The proposed appeal turned primarily on credibility findings and factual determinations, including the treatment of medical evidence based on incomplete or inaccurate histories.

The application was dismissed with costs.

The appellant insurer appealed from summary judgment granted in favour of a bankruptcy trustee under an errors and omissions policy issued to the bankrupt insured.

The court held there were genuine issues for trial regarding the insured's state of mind when placing insurance with an unregistered offshore insurer and regarding whether the policy extended coverage although the insured was not a registered insurance broker.

Because the exclusion clause turned on whether the insured committed an intentional wrongful act, error or omission, the evidentiary record was insufficient to justify summary judgment.

The appeal was allowed, the summary judgment was set aside, and the action was directed to proceed to trial.