Caroline P. Gronke

The appellant, Anjanette Passmore, appealed a Superior Court judgment granting summary judgment in favour of the City of Hamilton, dismissing her claim against the City.

The Court of Appeal found that the motion judge erred by failing to apply the established principles for partial summary judgment, which is appropriate only in rare circumstances.

The court noted that granting partial summary judgment in this case did not result in efficiencies, as the issue was raised late in the proceedings and required adjudication of the same issues and evidence as would be required at trial against the remaining defendants.

The appeal was allowed, and the matter remitted to the Superior Court of Justice for trial.

A lessor of vehicles sought to establish that it was entitled to third-party liability insurance coverage under an automobile insurance policy issued by the respondent insurer.

The dispute centered on whether an OPCF 5 endorsement, which permits lessors to lease vehicles and provides coverage to both lessors and lessees, was part of the Certificate of Automobile Insurance.

The application judge found the endorsement was not part of the policy.

The Court of Appeal reversed, finding that the Certificate contained the phrase "AS PER OPCF 5 FORMS" which the insurer had added to its standard form, and that this language, combined with the commercial context of the transaction, demonstrated the insurer's intent to provide liability coverage to both the lessor and lessee.

The applicant lessor sought a declaration that it was entitled to third party liability coverage under an automobile insurance policy issued to its lessee, and that the cancellation of the policy by the lessee's agent was ineffective against it.

The court applied the principles of insurance contract interpretation and found that the policy unambiguously provided only property damage coverage to the applicant as a lienholder, as no OPCF 5 endorsement was issued.

The application was dismissed, and the court found it unnecessary to determine the validity of the policy cancellation.

The respondent, Old Republic Insurance Company of Canada, brought a motion for leave to deliver an amended factum to withdraw an admission of liability coverage made in its original factum.

The applicant, Coast Capital Equipment Finance Ltd., opposed the motion, arguing prejudice.

The court granted the motion, finding that the interests of justice dictate deciding the underlying application on its merits, not on a solicitor's error, and that the prejudice to the applicant was not so great as to dismiss the motion, especially given prior costs awards.

On a summary judgment motion by an automobile insurer, the court held there was a genuine issue for trial as to whether the plaintiff's uninsured motorist claim was barred by the Limitations Act, 2002.

The record supported at least two possible discoverability dates: when the plaintiff learned the tortfeasor was uninsured, and when medical evidence was sufficient to establish a threshold claim under s. 267.5(5) of the Insurance Act and O. Reg. 461/96.

The court rejected the insurer's position that the claim was discoverable almost immediately after the accident or, at the latest, when the plaintiff left work.

The plaintiff was granted leave to file a Reply and amend the pleading to expressly plead discoverability.

The defendant insurer brought a motion to dismiss an indemnification action brought by another insurer arising from a motor vehicle accident involving insured property.

The plaintiff insurer had denied coverage to its insured and was later found liable in separate litigation, after which it sought statutory indemnity from the other insurer whose insured driver was allegedly at fault.

The court considered whether the claim for contribution and indemnity was barred under s. 18 of the Limitations Act, 2002.

The court held that the plaintiff insurer was an alleged wrongdoer in the underlying action and that its indemnity claim fell within the contribution and indemnity regime governed by s. 18.

Because the plaintiff did not bring a third-party claim or otherwise commence its indemnity claim within two years of being served with the original statement of claim, the action was statute-barred.