Brian G. Sunohara

Following a personal injury action arising from a fitness class accident, the defendants issued a third party claim against the program developer alleging negligent training of the instructor.

The third parties moved for summary judgment relying on a contractual indemnity clause requiring the fitness club to indemnify them for claims arising from activities at the facility.

The court held that indemnity for a party’s own negligence must be expressed in the clearest terms, and the clause relied upon did not meet that standard and was ambiguous.

The court also declined to consider an alternative argument limiting liability because it was not properly pleaded or supported by evidence in the motion record.

Following a civil jury trial arising from a motor vehicle accident where liability was admitted, the plaintiffs recovered modest damages far below the amounts claimed.

The plaintiffs sought over $422,000 in partial indemnity costs while the defendants argued the claim was disproportionate and relied on prior settlement offers.

The court analyzed proportionality, conduct of the litigation, trial duration, settlement efforts, and Rule 57.01 cost factors.

Although the defendants’ offers did not strictly comply with Rule 49.10, they were considered relevant under Rule 49.13.

Balancing the disproportionate costs sought, litigation conduct, settlement history, and the plaintiffs’ financial circumstances, the court declined to award costs to either side.

Following a successful motion involving a conflict of laws analysis concerning jurisdiction over an accident that occurred in New York State, the court determined the appropriate costs award.

Applying the factors in Rule 57 of the Rules of Civil Procedure, the court emphasized the complexity of the proceeding and the importance of the issues to the parties.

Although the successful moving party sought over $23,000 in partial indemnity costs, the court found the hours claimed excessive relative to the reasonable expectations of the losing parties.

The court therefore reduced the claim and awarded partial indemnity costs in a significantly lower amount.

Costs were ordered payable jointly by the plaintiff and an opposing defendant insurer.

Following a civil jury trial for damages arising from a motor vehicle accident, the defendants brought a motion for a ruling that the plaintiffs' claims did not meet the statutory threshold under the Insurance Act.

The jury had awarded modest damages, implicitly rejecting much of the plaintiffs' evidence on causation and credibility.

However, the trial judge conducted an independent assessment and found the principal plaintiff to be credible.

The court concluded that the plaintiff suffered from chronic low back pain caused by the accident, which constituted a permanent serious impairment of an important physical function.

The defendants' motion was dismissed, and the court ruled that the plaintiffs met the statutory threshold.

The defendants, Aviva Canada Inc. and Pilot Insurance Company, brought summary judgment motions to dismiss two actions by the plaintiff arising from a motor vehicle accident.

The insurer denied coverage, alleging the plaintiff failed to notify them of a material change in risk (using a personal vehicle for a driving school) and made false statements about his claim.

The court dismissed the motions, finding that the statutory condition regarding change in risk did not apply to uninsured coverage.

Furthermore, the court held that genuine issues requiring a trial existed regarding whether the failure to notify was intentional and whether the plaintiff willfully made false statements, as these issues required credibility assessments best suited for a trial judge.

The plaintiff was catastrophically injured in a motor vehicle accident involving an underinsured driver.

The plaintiff's employer's fleet insurance policy, issued by the defendant insurer through a broker, did not include OPCF 44R (Family Protection Coverage).

The plaintiff sued the insurer, alleging it owed a duty of care to advise on the need for such coverage, similar to a broker, and that it was vicariously liable for the broker's failure to do so.

The insurer moved for summary judgment.

The court granted the motion, finding that the insurer did not owe a duty to advise the insured on coverage gaps, as it conducted risk assessments solely for underwriting purposes, and that the broker was not acting as the insurer's agent.

An insurer applied for judgment enforcing a settlement agreement governing loss transfer claims under s. 275 of the Insurance Act.

The respondent insurer argued the applicant breached the agreement by failing to submit indemnity requests quarterly and asserted it was discharged from further performance.

The court interpreted the settlement term as requiring quarterly submissions where file activity existed and found the applicant breached the provision in some instances.

However, the breach was classified as a breach of warranty rather than a fundamental term, and time was not of the essence.

The respondent was therefore not entitled to terminate the agreement and remained obligated to pay properly submitted claims.

The plaintiff was injured in a motor vehicle accident and was required to elect between receiving caregiver benefits or income replacement benefits under the Statutory Accident Benefits Schedule.

He elected to receive caregiver benefits.

In his subsequent tort action, the defendants sought to deduct the value of the income replacement benefits from his past income loss claim, arguing they were 'available' to him under s. 267.8(1) of the Insurance Act.

The Court of Appeal held that because the plaintiff was legally permitted to receive only one type of benefit, once he elected caregiver benefits, the income replacement benefits were no longer 'available' to him.

The appeal was allowed and the defendants were not permitted to deduct the income replacement benefits.

The appellant was injured in a motor vehicle accident in Texas while in the course of employment.

He applied for statutory accident benefits and elected to pursue a tort action rather than claim WSIB benefits.

The insurer denied benefits, arguing he was required to claim WSIB.

The arbitrator held that the pay-pending provisions of s. 59(5) of the Schedule did not apply to disputes over the bona fides of a tort election under s. 59(2).

On appeal, the Director's Delegate rescinded the order, finding that s. 59(5) does apply to s. 59(2) disputes, meaning the insurer must pay interim benefits pending resolution of the dispute over the validity of the election.

The applicant was injured in a motor vehicle accident in Texas while working as a co-driver of a tractor trailer.

He applied for and received loss of earning benefits from the Workplace Safety and Insurance Board (WSIB).

He subsequently applied for statutory accident benefits from his auto insurer, arguing he was entitled to benefits not covered by WSIB.

The arbitrator held that under section 59 of the Statutory Accident Benefits Schedule, the applicant was precluded from claiming statutory accident benefits because he was entitled to and received WSIB benefits, and he had not made a valid election to opt out of the WSIB scheme primarily to pursue a tort action.