Darrell P. March

Following the dismissal of the plaintiff's action for failing to attend an examination for discovery, the defendant sought costs on a substantial indemnity basis.

The self-represented plaintiff made unsubstantiated allegations of fraud against the defendant's counsel and filed a complaint against the judge.

The court found the plaintiff's conduct since August 2021 to be reprehensible, vexatious, and unnecessarily lengthening the proceeding.

The court awarded the defendant costs of $47,000, reflecting substantial indemnity costs for the period after August 2021 and partial indemnity costs prior to that date.

The appellant appealed a Licence Appeal Tribunal (LAT) decision denying her ongoing income replacement and psychological benefits following a motor vehicle accident.

She argued she was denied procedural fairness because the insurer's psychological expert did not produce raw test data until mid-hearing, and that the LAT erred in finding the insurer made 'best efforts' to produce the file.

The Divisional Court dismissed the appeal, finding no denial of procedural fairness as the appellant had sufficient time to review the data during a five-week adjournment and cross-examine the expert.

The Court also found the LAT applied the correct legal test for 'best efforts'.

This costs endorsement followed the abandonment of three scheduled motions in an accident benefits and tort action arising from a motor vehicle accident involving a minor plaintiff.

The insurer had moved for summary judgment dismissing aggravated and punitive damages claims, while the plaintiff had cross-moved for a declaration that the Minor Injury Guidelines did not apply and had also proposed an amendment to plead bad faith damages.

After the insurer delivered an OCF 9 confirming the claim fell outside the Minor Injury Guidelines and the plaintiff narrowed or abandoned his other positions, the motions became unnecessary.

The court held both sides had engaged in tactical gamesmanship that caused needless motion practice, and ordered costs in the cause rather than awarding costs to either side on the abandoned motions.

This costs endorsement followed the abandonment of three scheduled motions in an accident benefits and tort action arising from a motor vehicle accident involving a minor plaintiff.

The insurer had moved for summary judgment dismissing aggravated and punitive damages claims, while the plaintiff had cross-moved for a declaration that the Minor Injury Guidelines did not apply and had also proposed an amendment to plead bad faith damages.

After the insurer delivered an OCF 9 confirming the claim fell outside the Minor Injury Guidelines and the plaintiff narrowed or abandoned his other positions, the motions became unnecessary.

The court held both sides had engaged in tactical gamesmanship that caused needless motion practice, and ordered costs in the cause rather than awarding costs to either side on the abandoned motions.

The appellant insurer appealed an order requiring it to pay interest at the rate provided for by s. 46(2) of the Statutory Accident Benefits Schedule on a sum payable to the respondent insured but unpaid for 19 months.

The Court of Appeal dismissed the appeal, holding that the clear policy intent of s. 46 is compensatory, and it was entirely consistent with that policy to calculate the loss incurred due to the late payment pursuant to s. 46(2).