Bruce R. Mitchell

The Court of Appeal for Ontario allowed Pafco Insurance Company’s appeal from a motion judge’s decision regarding the interpretation of the “insured person” definition in the standard Ontario Automobile Policy 44R family protection endorsement.

The court held that the motion judge erred in finding that Ashley Kerr was not an “insured person” under Joe Hesch’s 44R endorsement with Kent and Essex Mutual Insurance Company.

The correct interpretation, supported by prior case law and industry commentary, is that coverage is available to an insured person occupying their own vehicle if family protection coverage is in force on that vehicle.

The court clarified the priority of coverage and the pro rata sharing of excess damages between insurers.

This motion concerned a dispute between two defendant insurers, Pafco Insurance Company and Kent and Essex Mutual Insurance Company, regarding Kent's obligation to contribute to a $950,000 settlement paid by Pafco.

The settlement satisfied claims made by the plaintiffs under the OPCF 44R Family Protection Coverage endorsement, following the death of Ashley Kerr in a car accident caused by an uninsured motorist.

The central issue was whether Ashley Kerr qualified as an "insured person" under Joe Hesch's (her common-law spouse) 44R policy with Kent, which would trigger Kent's contribution.

The court found that Ashley did not meet the definition of an "insured person" under Joe's policy because she owned the "other automobile" she was occupying at the time of the accident, an exclusion explicitly stated in the 44R endorsement and reinforced by the OAP 1 policy.

Consequently, Kent was not obligated to contribute to the settlement.

The court also granted Pafco a subrogated judgment against the at-fault uninsured motorist.

Orchid Leasing Corporation brought a motion for summary judgment to dismiss the plaintiff's claim and Kent & Essex Mutual Insurance Company's cross-claim against it, arguing it was not the legal owner of the tractor involved in a motor vehicle accident at the time of the incident.

The court applied the principles of summary judgment and the legal test for ownership under the Highway Traffic Act, which establishes a rebuttable presumption of ownership based on MTO registration.

The court found that Orchid had successfully rebutted this presumption by demonstrating it had transferred all indicia of ownership and control to the driver, Dhillon, prior to the accident.

Consequently, the motion for summary judgment was granted, dismissing all claims against Orchid.

The plaintiff brought a motion to amend her statement of claim to add Ford Credit Canada Company as a defendant, the owner of a leased vehicle involved in a motor vehicle accident.

Ford resisted, arguing the claim was statute-barred under the Limitations Act, 2002.

The court found the plaintiff failed to exercise reasonable diligence in identifying Ford as a potential defendant within the two-year limitation period, despite having received information about Ford's ownership before the period expired.

The plaintiff's reliance on an erroneous police report and failure to conduct a routine MTO search, coupled with counsel's inadvertence, did not rebut the presumption of discoverability.

The motion to add Ford as a defendant was dismissed.

An appeal from the dismissal of an application for a declaration that the appellant is an insured under two insurance policies.

The Court of Appeal allowed the appeal on the basis of an apparent conflict of interest between the appellant and Royal & Sun Alliance Insurance Company of Canada, which appointed and paid for the appellant's counsel.

The court found that the appellant should have had independent counsel to advise on the advisability of bringing the underlying application and to represent him on appeal, given that the insurer's financial interests diverged from the insured's interests.

Following a jury verdict awarding the plaintiffs $3.565 million for injuries sustained in a motor vehicle accident caused by an impaired driver, the court determined several post-trial legal issues.

The court denied the third-party bartender's request to amend his pleadings to add a limitation defence due to prejudice.

The court found the bartender was an independent contractor or volunteer, meaning the host was not vicariously liable for his negligence, but the host could seek contribution and indemnity under the Negligence Act.

The court also ruled that the plaintiffs could access their OPCF 44R underinsured motorist coverage without having sued the bartender, as his insurance was not 'available' to them within the meaning of the endorsement.

Finally, the court ordered the assignment of future statutory accident benefits to prevent double recovery.

The court ruled on the admissibility of expert toxicological opinion evidence regarding blood alcohol concentration (BAC) levels and signs of intoxication during a trial.

The expert was deemed qualified to testify on BAC levels and their physiological effects based on assumptions.

However, the court excluded the expert's opinion on whether an individual exhibited signs of intoxication or others' ability to detect impairment, holding that these are matters of common knowledge for a jury and do not require expert testimony.

The court also cautioned against experts developing hypotheses and sifting through evidence to support them.

At the opening of trial, the plaintiffs moved to amend their statement of claim to plead vicarious liability against the defendant Thomas Bolton for the negligence of the third party, Steve Coulthard.

The Bolton Estate resisted, arguing prejudice due to Mr. Bolton's death and the lateness of the amendment.

The court permitted the amendment, finding it did not raise a new cause of action but rather attached a legal label to existing facts, consistent with Rule 26.01, and that the defence would have understood the basis of liability.

Following a jury verdict awarding damages for injuries arising from a motor vehicle accident, the defendant insurer moved for declarations that the plaintiff must hold in trust and pay over certain future statutory accident benefits and collateral benefits pursuant to s. 267.8 of the Insurance Act.

The insurer argued that the jury’s award for future care costs overlapped with potential medical and rehabilitation benefits, raising concerns of double recovery.

The court held that deductions or trust obligations to prevent double recovery require clear proof that the plaintiff’s entitlement to collateral benefits is certain and that the tort award compensates the same losses.

Given uncertainty regarding the plaintiff’s future entitlement to statutory accident benefits and the extent to which the jury’s lump-sum award corresponded to benefits available under the accident benefits scheme, the evidentiary threshold was not met.

The requested declarations and related relief were therefore refused.

Following a jury trial for a motor vehicle accident where the plaintiff was awarded substantial damages, the defendant insurer brought a motion for a ruling that the plaintiff's claims did not meet the statutory threshold under the Insurance Act.

The court found that the plaintiff's chronic low back pain was caused by the accident and constituted a permanent serious impairment of an important physical function.

The court dismissed the defendant's motion, concluding that the plaintiff met the statutory threshold for non-pecuniary loss and future care costs.

Two insurers disputed liability for indemnity arising from a motor vehicle accident and whether the plaintiff insurer’s claim against the defendant insurer was statute‑barred.

The issue was when the claim was discovered for the purposes of the two‑year limitation period under the Limitations Act, 2002.

The court held that discoverability occurs when the plaintiff knows or ought to know that the at‑fault driver was insured under a valid policy.

The plaintiff exercised reasonable diligence and did not discover the existence of applicable insurance until 2010 despite earlier related litigation.

The action commenced shortly thereafter was therefore within the limitation period.