Chris T.J. Blom

An appeal from a Superior Court of Justice order was dismissed on consent of both parties.

The appellant, 144673 Ontario Limited carrying on business as Whiskey A Gogo, and the respondent, the Estate of Freddie Romanoski, agreed to the dismissal of the appeal with costs awarded to the respondent.

Following a seven‑day personal injury trial arising from an accident at an amusement park, the plaintiffs obtained damages totalling $304,863.23 and the defendant’s counterclaim for contribution and indemnity against the father was dismissed.

The plaintiffs sought partial indemnity costs exceeding $226,000, while the defendant by counterclaim sought its own costs.

The court applied the principles under s.131 of the Courts of Justice Act and Rules 49 and 57 of the Rules of Civil Procedure, emphasizing proportionality, the principle of indemnity, and the reasonableness of preparation time and disbursements.

The court reduced excessive preparation hours and excluded certain disbursements but accepted the reasonableness of counsel’s hourly rates.

Costs were fixed at amounts considered fair and reasonable in light of the trial result and proportionality considerations.

Following a trial, the defendant requested production of opposing counsel’s computer dockets to obtain evidence of the time and expenses incurred for the purpose of assessing costs.

The plaintiffs objected, arguing such detailed disclosure was not required under the Rules of Civil Procedure.

The court reviewed the principles governing costs assessments, emphasizing that fixing costs is not a mechanical calculation based on hours multiplied by rates.

Considering the significant expense and privilege concerns associated with producing detailed dockets, the court held that such production was not appropriate in the circumstances.

The request for production of the dockets was dismissed and the responding party was directed to deliver its costs submissions within two weeks.

The minor plaintiff, who had a pre-existing condition making his bones prone to fracture, was injured while attempting to board a continuously moving amusement park ride.

The plaintiffs sued the amusement park operator for negligence under the Occupiers' Liability Act.

The court found the defendant breached its duty of care by failing to post warning signs, failing to provide verbal instructions that the ride did not stop, and failing to have sufficient staff present.

The court dismissed the defendant's claims of contributory negligence against the minor and his father.

Damages were awarded to the minor plaintiff and his parents, taking into account the minor's pre-existing condition under the crumbling skull rule.

The defendant brought a motion to transfer four Toronto actions to Brampton so that they could be tried with two related Brampton actions arising from the same motor vehicle accident.

The motion relied on Rule 13.1.02 of the Rules of Civil Procedure governing transfers of proceedings between courts.

Although the accident occurred in Toronto and several Rule 13.1.02 factors appeared to favour Toronto as the venue, the evidentiary record lacked information regarding the convenience of parties and witnesses and whether judicial resources were available in the proposed receiving region.

The court also noted that the required consultation protocol with the Regional Senior Justices had not been followed.

The motion was therefore dismissed without prejudice to bringing a motion to transfer the Brampton actions to Toronto.

The respondent sought weekly benefits from the appellant insurer pursuant to the Statutory Accident Benefits Schedule 1990.

The insurer terminated benefits, and the respondent sued for past and ongoing benefits, including interest on overdue amounts under s. 24(4).

The insurer brought a motion to determine whether s. 24(4) provides for simple or compound interest.

The motion judge found it provides for compound interest, and the insurer appealed.

The Court of Appeal dismissed the appeal, holding that s. 24(4) unambiguously provides for compound interest when read in its entire context and harmoniously with the legislative scheme.

The appellant insurer appealed an arbitrator's decision finding that the respondent insured had not validly settled his claim for income replacement benefits.

The respondent had rescinded the settlement on the basis that the Settlement Disclosure Notice was not signed by the insurer and contained incorrect information regarding the maximum benefit available.

The Director's Delegate upheld the arbitrator's decision, finding that a typed name of the insurer's counsel did not satisfy the statutory requirement for the insurer's signature under the Settlement Regulation.

Furthermore, the notice failed to accurately describe the benefits available by omitting the higher maximum benefit applicable to self-employed persons.

The appeal was dismissed.

The insured was injured in a motor vehicle accident and subsequently developed a crack cocaine addiction.

He applied for attendant care benefits to supervise him and prevent drug abuse, which the insurer denied on the basis that he was not catastrophically impaired.

An arbitrator later found the insured was catastrophically impaired and ordered the insurer to pay past attendant care benefits, even though the insured had not actually received or paid for the care during that period.

The Director's Delegate upheld this decision.

On judicial review, the Divisional Court dismissed the insurer's application, holding that it was not patently unreasonable to interpret 'incurred' as including reasonable and necessary expenses that would have been provided but for the insurer's improper denial of benefits.

The applicant was injured in a motor vehicle accident and sought income replacement benefits for intermittent days off work over a five-year period.

The insurer denied the claim, arguing the applicant had returned to work for more than 90 days and that an occasional disability did not constitute a substantial inability to perform essential tasks.

The arbitrator found the applicant was entitled to benefits for the days claimed, as he returned to work within 104 weeks and suffered a substantial inability on those specific days.

The arbitrator allowed the insurer to deduct sick leave benefits received.

A special award of $2,500 was ordered against the insurer for unreasonably withholding benefits despite compelling medical evidence.

The appellant was injured while riding as a passenger with an intoxicated driver after both were over-served at the respondent tavern.

The jury found the appellant 35.5% contributorily negligent for failing to wear a seatbelt and accepting a ride with an impaired driver.

In these supplementary reasons, the Court of Appeal apportioned that 35.5% contributory negligence, assigning 60% to the appellant and 40% to the tavern for its breach of duty in over-serving him.

The Court upheld the trial judge's costs rulings regarding a Rule 49 offer and the Victims' Bill of Rights, but set aside the denial of 14 months of postjudgment interest, finding it was an unwarranted penalty for a delay in delivering a bill of costs.

The appellant suffered a serious brain injury in a single-car accident after drinking at a tavern with the defendant driver.

At trial, the defendants admitted 100% liability for causing the accident, but the jury was only asked to assess the appellant's contributory negligence for not wearing a seatbelt and riding with an impaired driver.

The jury was not asked to apportion fault to the tavern for over-serving the appellant and failing to ensure his safe passage home.

The Court of Appeal held that the failure to instruct the jury to apportion fault among all parties as required by the Negligence Act was an error of law.

To avoid the cost of a new trial, the Court of Appeal invited submissions to apportion fault itself.

The respondent was injured in an automobile accident and, three weeks later, suffered severe burn injuries after attempting suicide by setting himself on fire.

He claimed psychological treatment expenses, which the insurer denied on the basis that the treatment related to the suicide attempt and pre-existing problems, not the accident.

An arbitrator ordered the insurer to pay, finding the accident triggered the suicide attempt.

On appeal, the Director's Delegate found no error in the arbitrator's legal analysis that a suicide attempt due to accident-related depression could be covered.

However, the appeal was allowed and the matter remitted for rehearing because the arbitrator failed to address critical gaps and contradictions in the evidence regarding the causal link between the accident and the suicide attempt.

The respondent's vehicle became stuck on a country road on a cold winter night.

She left the vehicle to seek help, became disoriented, fell into a river, and suffered severe frostbite requiring amputations.

She claimed statutory accident benefits.

The insurer denied the claim, arguing the injuries were not directly caused by the use or operation of an automobile.

The motions judge ruled in favour of the respondent.

On appeal, the Court of Appeal reversed the decision, holding that while the respondent met the purpose test, she failed the causation test because the use of the vehicle was not a direct cause of her injuries due to numerous intervening acts.

The applicant sought statutory accident benefits following a motor vehicle accident.

The insurer denied the claim, alleging the applicant made a material misrepresentation by failing to disclose she was the registered owner of the vehicle, which was insured in the name of her friend as the sole driver.

The arbitrator found that the applicant did not conceal her ownership and had no intention to mislead the insurer.

Furthermore, the insurer could not rely on the alleged misrepresentation as it was not contained in a signed written application, and the friend had a valid insurable interest in the vehicle.

The applicant was not precluded from claiming benefits.

The applicant was struck by a motor vehicle and sustained minor physical injuries.

Three weeks later, he attempted suicide by setting himself on fire, resulting in severe burns.

He applied for statutory accident benefits, claiming the suicide attempt was psychologically triggered by the motor vehicle accident.

The insurer denied the claims, arguing the suicide attempt was an intervening act caused by pre-existing psychological and social issues.

The arbitrator applied the direct causation test and the thin skull rule, finding that the motor vehicle accident was a direct cause of the suicide attempt.

The arbitrator ordered the insurer to pay for the proposed psychological treatment plan, the costs of related medical examinations, and interest on overdue payments.

The applicant was injured in a motor vehicle accident and received statutory accident benefits.

He sought payment of $1,219.80 for a rehabilitation assessment report prepared by a social worker.

The insurer refused payment, arguing the report was not reasonable.

The arbitrator found that obtaining the report was reasonable given the applicant's ongoing impairments and the uncertainty of his return-to-work program.

However, the arbitrator concluded the cost was unreasonable because the report was superficial, vague, and lacked significant analysis.

The arbitrator reduced the payable amount to $321, representing 1.5 hours of work, plus interest.

The appellant insurance company appealed a motions judge's decision that the plaintiff was not an 'occupant' of a motorcycle when she was struck by an uninsured motorist while standing near the parked vehicle.

The Court of Appeal allowed the appeal, applying the 'objective observer' test to find that the plaintiff was a passenger and therefore an occupant under s. 224(1) of the Insurance Act.

As a result, the respondent insurer was solely liable for the plaintiff's claim.

The applicant was injured in a motor vehicle accident and sought physiotherapy expenses.

The insurer raised a preliminary issue, arguing the applicant was precluded from proceeding to mediation under s. 71(1) of the Statutory Accident Benefits Schedule because he failed to attend a Designated Assessment Centre (DAC) assessment in 1996.

The arbitrator found that the insurer failed to schedule the assessment at the closest DAC and failed to obtain the required s. 37 certificate.

As the requested assessment was not authorized under the Schedule, the applicant did not fail to make himself reasonably available and was not precluded from proceeding to mediation.

The preliminary issue was dismissed.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits.

The parties settled the substantive issues shortly before the scheduled arbitration hearing, leaving the quantum of the applicant's legal expenses to be determined by the arbitrator.

The insurer argued that the arbitration was an abuse of process and could have been avoided if the applicant had produced requested documents in a timely manner.

The arbitrator rejected the argument that the proceeding was an abuse of process but agreed that the applicant's delay in complying with undertakings and duplication of work by counsel warranted a reduction in the claimed expenses.

The arbitrator reduced the hours claimed by one of the applicant's counsel and awarded total expenses of $11,400.66.

The applicant was injured in a motor vehicle accident and subsequently developed severe psychological problems, including delusions and paranoia.

He applied for income replacement benefits, which the insurer denied on the basis that his psychological condition was pre-existing and not caused by the accident.

The arbitrator found that the applicant was a 'thin-skulled' individual whose vulnerable defences were overwhelmed by the accident, establishing causation.

The applicant was awarded ongoing income replacement benefits, but his claim for a special award was dismissed as the insurer had not unreasonably delayed or withheld benefits.