Brian G. Sunohara

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.