Brian Albert Foster

The moving parties sought leave to appeal an order dated December 20, 2021.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to one responding party on a partial indemnity basis in the amount of $5,000.

No costs were awarded to the other responding parties as no factum was filed.

This appeal concerns the correct analytical approach to fixing costs when an action is settled before adjudication on the merits.

Two infant plaintiffs were catastrophically injured when struck by a vehicle in 2004.

After more than ten years of litigation, the parties settled in June 2017, three months before trial.

The settlement provided for $1 million from each of the Potrebics and Pipolos, with costs to be determined by the court.

The motion judge apportioned costs based on his assessment of the parties' respective liability for damages, finding the Potrebics solely responsible.

The appellants challenged this apportionment and the quantum of costs awarded.

The court considered costs following a jury trial where the plaintiff was awarded damages and prejudgment interest.

The defendants argued they were the successful parties and sought costs under Rule 49.10, claiming their offer to settle (inclusive of an OHIP subrogated claim) was more favourable than the judgment.

The court found the defendants' offer uncertain regarding the OHIP claim, thus not triggering Rule 49.10.

While the plaintiff was the successful party in proving negligence and damages, there was divided success as the defendants prevailed on a major causation issue.

Considering the plaintiff's unreasonable settlement expectations and the divided success, the court ordered each party to bear their own costs.

The plaintiff in a personal injury action moved to strike the defendants' jury notice, arguing complexity due to chronic pain claims and potential injustice.

The court dismissed the motion, finding that the case was not unusually complex and that juries are capable of assessing credibility in chronic pain cases, especially with proper judicial instruction on the reality of chronic pain as established by the Supreme Court of Canada.

The court also rejected the plaintiff's arguments that recent jury verdicts in chronic pain cases demonstrated inherent injustice or that the civil jury system was being inappropriately used by insurers.

A personal injury trial, which had been estimated to last 5-6 weeks, was declared a mistrial after 4.5 weeks due to grossly inaccurate trial duration estimates provided by counsel.

The court emphasized the critical importance of accurate estimates for the efficient administration of justice, juror experience, and access to justice for other litigants.

Despite repeated warnings and attempts to manage the schedule, the trial could not be completed within the confirmed timeframe.

The judge found that the pace of the trial, coupled with counsel's shifting strategies and "desperation" to conclude, made a fair and just completion impossible, necessitating the regrettable decision to declare a mistrial to prevent further waste and uphold the integrity of the justice system.

In this personal injury action, the plaintiff objected to the admissibility of defence surveillance video as substantive evidence during an ongoing civil jury trial.

The plaintiff argued that the video had low probative value, was potentially prejudicial, and that some portions were not disclosed in a timely manner under Rule 30.09.

The court dismissed the objection, finding the surveillance video prima facie relevant to the plaintiff's condition and abilities, and that its probative value was not outweighed by prejudicial effect.

The court granted leave for late disclosure under Rule 30.09, noting ample opportunity for review.

The ruling allowed the defendants to tender the video as substantive evidence, subject to specific qualifications regarding the exclusion of overly intrusive or misleading segments and directions on presentation to the jury.

The plaintiff in a personal injury action arising from a motor vehicle accident brought a preliminary motion to exclude photographs of vehicle damage at trial.

The plaintiff argued the photographs were irrelevant since liability was admitted, and that admitting them without expert biomechanical evidence would invite unguided speculation by the jury that minor vehicle damage equates to minor injury.

The court dismissed the motion, holding that the photographs were relevant to causation and admissible without expert evidence, as causation is a matter of common sense.

The court noted that a jury instruction would be given to clarify that serious injuries can still result from low-impact collisions.

In a personal injury action, the plaintiff objected to the defendants' attempt to introduce evidence and arguments suggesting that the plaintiff's receipt of collateral benefits was relevant to her motivation to work and her actual disability.

The court sustained the plaintiff's objection, ruling that such considerations were speculative and lacked relevance to the determination of disability.

The decision emphasized that while collateral benefits are relevant for calculating offsets, they should not be used to imply a lack of motivation to work or to undermine claims of disability.

In a personal injury action, the defendants objected to the plaintiff's proposed witness sequence, which intended to call a physiotherapist, Gloria Gilbert, as the first witness, followed by the plaintiff.

The defendants argued that the plaintiff should testify first to provide context for her subjective chronic pain claims.

The court dismissed the defendants' objection, allowing the plaintiff to call Ms. Gilbert first, provided the plaintiff excluded herself from the courtroom during Ms. Gilbert's testimony.

The court emphasized a litigant's right to present their case as counsel deems advisable, finding no compelling reason to interfere with the modest deviation from usual practice, especially since Ms. Gilbert was presented as a "participating expert" whose testimony would not inherently depend on the plaintiff's prior evidence.

Following a three-week jury trial in a personal injury action, the plaintiff was awarded $241,740 in damages.

Prior to trial, the defendants had served an offer to settle for $375,000 plus costs.

Because the jury award was less favourable than the defendants' offer, the defendants sought costs from the date of the offer pursuant to Rule 49.10.

The plaintiff argued that her impecuniosity should relieve her from paying the defendants' costs, as it would effectively offset her damages award.

The court rejected this argument, finding no reason to deviate from the normal costs rules.

The plaintiff was awarded partial indemnity costs up to the date of the offer, and the defendants were awarded partial indemnity costs thereafter.

The plaintiff brought an action for damages arising from a motor vehicle accident.

Following a jury trial where the defendant was found 100% at fault and the jury awarded $1,053 for general damages and $38,500 for past wage loss, the defendants brought a threshold motion arguing the plaintiff did not suffer a permanent serious impairment.

The trial judge granted the threshold motion, finding the plaintiff's evidence lacked credibility and was undermined by surveillance footage and medical records showing significant pre-existing chronic pain and narcotic use.

The court concluded the low-impact collision did not materially contribute to a diminution in her function.

The defendants moved for an order requiring the plaintiff in a motor vehicle accident action to attend additional defence medical examinations by a physiatrist and a psychiatrist.

The defendants argued the plaintiff’s condition had changed and that trial fairness required further examinations because the plaintiff’s experts had examined her multiple times.

The court reviewed the governing principles under s. 105 of the Courts of Justice Act and Rules 33.01–33.02 of the Rules of Civil Procedure regarding further defence medical examinations.

The court held that no material change in the plaintiff’s condition had been demonstrated and that the request largely amounted to an attempt to corroborate existing defence opinions.

Trial fairness did not require additional examinations, and the defendants had not provided sufficient evidentiary foundation to justify the order.

The appellant was involved in a motor vehicle accident while driving a vehicle she co-owned with her father.

At the time of the accident, the vehicle was uninsured and the appellant was driving without her father's consent.

The trial judge found that both were owners under the Highway Traffic Act, but that the father and his insurer were not liable because the appellant drove without his consent.

The Court of Appeal allowed the appeal, holding that under s. 192(1) of the Highway Traffic Act, a co-owner in possession of the vehicle does not need the consent of the other co-owner for both to be held vicariously liable.

The applicant sought judicial review of a coroner's decision denying him standing at an ongoing inquest.

The coroner found the applicant did not meet the statutory requirements for standing under either the public law or private law tests.

The Divisional Court dismissed the application, holding that the coroner's decision was entitled to curial deference and was not unreasonable.

The court emphasized the need to avoid interrupting the ongoing statutory hearing and found no serious error in principle that would justify interference.

The applicants were injured in a motor vehicle accident and received statutory accident benefits until the insurer terminated them.

More than two years later, the applicants applied for mediation and subsequently arbitration.

The insurer argued the application was barred by the two-year limitation period under section 281(5) of the Insurance Act.

The applicants argued for a 'rolling limitation period' based on prior case law.

The arbitrator held that she was bound by a Director's Delegate decision which rejected the rolling limitation period, and therefore dismissed the application for arbitration as out of time.

The insurer sought an order requiring the insured to attend an independent medical examination in London and a functional capacities evaluation at the Canadian Back Institute.

The arbitrator held that the insurer could choose its medical examiner, but it was unreasonable to require the insured to travel from Windsor to London for the examination.

The arbitrator also dismissed the request for a functional capacities evaluation, finding no evidence that the chosen doctor required an assessment by an undesignated health professional to assist in evaluating the insured's condition.

The applicant was injured in a rear-end motor vehicle accident and subsequently developed chronic pain syndrome and reactive depression.

The insurer terminated her weekly income benefits after she failed to complete a functional restoration program, arguing she was physically capable of working and her failure to cooperate was wilful.

The arbitrator found that the applicant's failure to participate in therapy was not wilful but rather a symptom of her accident-induced depression and pain.

Consequently, the applicant was entitled to weekly income benefits under section 12(1) of the Schedule until the 156-week mark, and under section 12(5)(b) until September 30, 1995, by which time she had sufficiently recovered psychologically to participate in rehabilitation.

The claim for a special award was dismissed as the insurer's reliance on medical opinions to terminate benefits was not unreasonable.

The applicant, who sustained paraplegia in a motorcycle accident, sought payment from his insurer for various expenses related to temporary accommodation, home renovations, transportation, and miscellaneous items under the Statutory Accident Benefits Schedule.

The arbitrator allowed certain expenses for apartment furnishings, window blinds, and a wire basket system as reasonable and necessary for rehabilitation.

However, claims for unauthorized changes to the home's heating and cooling system, landscaping, a second set of vehicle hand controls, and optional vehicle extras were denied as they were not required as a result of the accident.

The insurer was ordered to pay 17 months of lease payments for an interim vehicle and the cost of an interior stain guard for the modified minivan.

The insurer appealed an arbitrator's order requiring it to provide the catastrophically injured insured with a suitably modified mini-van under section 6(1)(f) of the No-Fault Benefits Schedule.

The insurer argued that transportation expenses were exhaustively covered by section 6(1)(d) and that a van was not 'necessary' for rehabilitation.

The insured cross-appealed, seeking a full-size custom van and a special award.

The Director's Delegate dismissed the insurer's appeal, finding that section 6(1)(f) authorized the provision of a motor vehicle and that a broad definition of rehabilitation included psychological adjustment and independence.

The cross-appeal for a full-size van was also dismissed, as the mini-van was deemed a reasonable expense.

The Director's Delegate refused to admit fresh evidence on the special award issue, finding it could have been adduced at the original hearing.

The Applicant suffered catastrophic injuries in a motorcycle accident, resulting in paraplegia.

He applied for no-fault benefits, including home renovations and a suitably modified motor vehicle.

The Insurer refused to provide a vehicle, arguing it was only liable for transportation costs to and from treatment.

The arbitrator held that a modified mini van was a reasonable expense resulting from the accident under section 6(1)(f) of the No-Fault Benefits Schedule, as it was necessary for the Applicant's rehabilitation and independence.

The arbitrator dismissed the Applicant's claim for a special award under section 282(10) of the Insurance Act, finding that the Insurer had not unreasonably withheld or delayed payments.