David A. Zuber

On appeal from a trial judgment in a personal injury case arising from a motorcycle accident, the appellants challenged the trial judge's decisions regarding collateral benefits deductions under the Insurance Act.

Specifically, they contested the trial judge's refusal to deduct an overpayment of income replacement benefits and short-term disability benefits from the jury's award.

The appellants argued that if successful on either issue, the respondent's judgment would fall below their Rule 49 settlement offer, warranting a costs adjustment.

The Court of Appeal upheld the trial judge's decisions on both issues and dismissed the appeal.

This is a supplementary decision addressing outstanding issues following the Court of Appeal's partial allowance of both the defendant's and plaintiff's appeals in a personal injury case.

The respondent, a minor, suffered serious injuries when pushed onto a roadway by the appellant, also a minor.

The case involved complex issues regarding statutory accident benefits deductions, prejudgment interest rates, and costs awards.

The court addressed whether the defendant should pay costs of the plaintiff's statutory accident benefits recovery, the appropriate prejudgment interest rate, costs of the trial, costs of the appeal, and the deductibility of management fees and out-of-pocket expenses.

The plaintiff, Hassan Iman Mame, brought a combined tort and accident benefits action following a motor vehicle accident.

After a jury verdict assessing non-pecuniary damages at $45,000, the trial judge conducted a threshold motion under s. 267.5 of the Insurance Act to determine if the plaintiff's injuries met the "permanent serious impairment of an important physical, mental or psychological function" test.

Despite the jury's assessment, the court found that the plaintiff's evidence, even at its highest, did not demonstrate an impairment that substantially interfered with most usual activities of daily living as required by O.Reg. 381/03.

Consequently, the plaintiff was not entitled to non-pecuniary damages, which would have been subject to a statutory deductible.

The plaintiff was awarded $50,000 for pecuniary losses as assessed by the jury, and the accident benefits action against State Farm was dismissed based on the jury's negative answer.

This is a costs decision on appeal from a trial judgment concerning liability for damages arising from an accident.

The appellants sought to challenge the trial judge's costs award.

The Court of Appeal determined that liability should be apportioned two-thirds to Safranyos and one-third to Hamilton.

The court made a Sanderson order requiring Safranyos to pay one-third of McHugh's costs of trial and appeal, but declined to impose such an order against Hamilton, as Hamilton made no arguments relating to McHugh's liability at trial or on appeal.

The plaintiff was pushed by the defendant Saywell, causing him to stumble into the path of a truck driven by Cloutier.

He suffered brain damage and became incapable of managing his own affairs.

He settled his statutory accident benefits (SABs) claim and his tort claim against Cloutier (a Pierringer settlement) prior to trial.

At trial, the jury apportioned liability equally among the plaintiff (contributory negligence), Saywell, and Cloutier.

The trial judge adopted the "silo" approach to deducting SABs from tort damages, rather than the strict "apples to apples" matching approach.

The trial judge also held that the non-settling defendant was only entitled to deduct 50 per cent of the SABs from his share of damages.

The Court of Appeal affirmed the silo approach and the proportionate deduction of SABs, overruling prior precedent requiring strict matching.

A motor vehicle accident occurred at an intersection where a stop sign was positioned between 8.4 and 9.4 metres behind a faded stop line.

The driver of the westbound vehicle failed to see a northbound vehicle and T-boned it, causing serious injury to a passenger.

The trial judge found the driver negligent and also found the municipality breached its duty of repair by failing to repaint the faded stop line, apportioning 50 per cent liability to the city.

The Court of Appeal allowed the city's appeal, finding the trial judge misapplied the ordinary reasonable driver standard by focusing on precise stopping distances rather than considering that reasonable drivers would stop at a point providing sightlines in both directions, as required by the Highway Traffic Act.

A motor vehicle collision occurred at an intersection in Hamilton when a vehicle operated by Ms. Safranyos failed to yield the right-of-way and was struck by a vehicle operated by Mr. McHugh, who had consumed alcohol and was speeding.

The trial judge found all three defendants liable: Ms. Safranyos at 50%, Mr. McHugh at 25%, and the City of Hamilton at 25%.

The City appealed on grounds that the trial judge misapplied the non-repair standard and improperly used adverse inferences.

Mr. McHugh appealed on grounds that the trial judge erred in finding he could have avoided the collision and misused evidence regarding his intoxication.

The Court of Appeal dismissed the City's appeal but allowed Mr. McHugh's appeal, finding the trial judge committed palpable and overriding errors in her factual findings and legal analysis regarding Mr. McHugh's liability.

The appellant Economical Insurance appealed a motion judge's determination of the priority in which three insurance policies would respond to a motor vehicle accident claim.

The driver was covered under the vehicle owner's State Farm automobile policy, the owner's State Farm personal liability umbrella policy, and the driver's own Economical automobile policy.

The motion judge ordered that the State Farm auto policy respond first, followed by the Economical auto policy, and then the State Farm umbrella policy.

Economical argued that the umbrella policy was an owner's first loss policy under section 277(1) of the Insurance Act and should respond before the Economical policy, or alternatively, that both policies should respond rateably under section 277(2).

The Court of Appeal dismissed the appeal, holding that the umbrella policy was not an owner's first loss policy as defined by the Act and that section 277(2) did not apply to the Economical policy.

Following a seven-week personal injury jury trial, the court determined post-trial adjustments to the $2.3 million verdict.

The court ruled that recent Insurance Act amendments increasing statutory deductibles applied retrospectively, but changes to pre-judgment interest did not.

Applying the 'silos of deductibility' approach, the court deducted the plaintiff's $900,000 Statutory Accident Benefits (SABs) settlement from the tort award, but apportioned the deduction 50-50 between the defendant and a non-party driver who had previously settled, matching the jury's liability finding.

The plaintiff's final judgment of $500,827 slightly exceeded the defendant's Rule 49 offer, entitling the plaintiff to costs, which the court fixed at $100,000 plus disbursements.

The moving parties, two commercial establishments, sought leave to appeal the dismissal of their motions for summary judgment.

The plaintiff had sustained a severe traumatic brain injury after falling down stairs at a rented chalet following a night of drinking at the moving parties' establishments.

The moving parties argued their duty of care ended when the plaintiff reached the chalet.

The court dismissed the motions for leave to appeal, finding no reason to doubt the correctness of the motion judge's decision that foreseeability of risk and the sobriety of the plaintiff's companions were issues requiring a trial.

The plaintiff appealed a Master's decision ordering him to post security for costs in the amounts of $60,000 for CanJet Airlines and $80,000 for 1791949 Ontario Limited (TGAS).

The appeal challenged the Master's findings on impecuniosity, the sufficiency of an adverse cost protection policy, and the plaintiff's chance of success.

The court upheld the Master's decision, finding no palpable and overriding error or misapprehension of evidence, and dismissed the appeal.

Following a jury trial in a motor vehicle accident action, the jury awarded the plaintiff $10,000 in general damages but no other damages.

Because the statutory deductible under the Insurance Act exceeded the award, the resulting judgment was effectively zero dollars.

The defendant had previously offered to settle for $5,000, which in practical effect was also equivalent to zero after the deductible.

Both parties sought partial indemnity costs and argued the Rule 49 consequences of the offers to settle.

The court held that both the offer and the trial result were artificially characterized as monetary outcomes when in reality each amounted to zero recovery.

Exercising its discretion under the Rules of Civil Procedure and the Courts of Justice Act, the court ordered that neither party recover costs.

Following dismissal of a civil action arising from an oil leak and claimed remediation damages exceeding $1 million, the successful defendants sought partial indemnity costs and disbursements totalling $210,000.

The plaintiffs argued the fees were excessive, that success at trial was divided regarding remediation issues, and that certain disbursements and expert expenses were unreasonable.

The court applied Rule 57.01 of the Rules of Civil Procedure and rejected the argument of divided success, emphasizing that the overriding issue was liability and the defendants were wholly successful.

The court also found the expert report and other disbursements reasonable and proportionate to the complexity and duration of the litigation.

Costs were fixed in favour of the defendants.

In a personal injury action arising from a helicopter crash, the defendants brought several pre‑trial discovery and procedural motions shortly before trial.

The court ordered production of corporate income tax records relating to the plaintiff’s production company, confirmation from the plaintiff’s accountant regarding the production of corporate records, authorization for defence counsel to obtain contractual records relating to the plaintiff’s involvement with a film production, and permitted questioning regarding the plaintiff’s OHIP records.

However, the court refused the defendants’ request for a late independent medical examination by a neurologist, finding the request was not based on new issues and would likely delay the scheduled trial.

Costs submissions were permitted if the parties could not agree.

Following a jury trial in a motor vehicle personal injury action, the plaintiffs moved for an order staying the determination of costs pending satisfaction of the judgment or resolution of a separate insurance coverage dispute involving the liable defendant and his insurer.

The plaintiffs argued that costs should be deferred because the verdict was under appeal and because the defendant’s ability to pay costs was uncertain pending determination of coverage, particularly given their intention to seek a Sanderson costs order.

The court held that the existence of an appeal or unresolved insurance coverage litigation does not justify departing from the usual practice of fixing costs after trial.

The ability to pay costs is only one factor in determining whether a Sanderson order is appropriate and does not require postponement of the costs determination.

The motion for a stay of the costs determination was dismissed.

The moving defendants sought summary judgment dismissing a personal injury action arising from a motor vehicle collision.

The motion judge considered the enhanced summary judgment powers under Rule 20 of the Rules of Civil Procedure and applied the “full appreciation test” articulated in Combined Air Mechanical Services v. Flesch.

Evidence included affidavits, cross‑examinations, and a prior guilty plea by one defendant to disobeying a red traffic signal.

The court held that the plea and consistent witness evidence established that the responding driver entered the intersection against a red light and was solely responsible for the collision.

Finding no genuine issue requiring a trial and no real chance of success against the moving defendants, the court granted summary judgment dismissing the action against them.

Following a discovery-related motion concerning undertakings and production of Schedule B documents, the court determined the appropriate costs award.

Applying s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, the court emphasized the result of the motion and the parties’ settlement offers.

Although the defendant had agreed to disclose some documents prior to the hearing and had answered undertakings promptly, the court found the plaintiffs were ultimately more successful and had been required to bring the motion.

The court exercised its discretion to fix costs payable by the defendant to the plaintiffs.

During a civil jury trial arising from a motor vehicle accident involving a child pedestrian, the court ruled on the permissible scope of testimony from an accident reconstruction expert.

The plaintiffs sought to elicit opinion evidence concerning alleged deficiencies in the defendant vehicle’s braking system and on driver perception and reaction times.

The court held that Rule 53 of the Rules of Civil Procedure requires expert reports to clearly state the opinions being advanced and their factual bases, and an expert cannot introduce a new field of opinion not articulated in the report.

Because the expert’s reports did not opine that the brake condition contributed to the collision, such testimony would improperly expand the report.

The court also barred additional human factors opinion evidence as duplicative of testimony already provided by a qualified human factors expert.

During a jury trial arising from a motor vehicle accident involving a child pedestrian, the defendants moved for a mistrial following the plaintiffs’ opening address.

The court had previously ruled that a police mechanic could not provide expert opinion evidence regarding the condition or effect of the vehicle’s brakes.

In the opening address, plaintiffs’ counsel suggested that the defendant driver’s brakes were in an unsatisfactory condition and invited the jury to infer that this contributed to the accident, despite the absence of expert evidence supporting such a theory.

The court held that the opening address improperly contained argument, inaccurate statements about the police investigation, and suggestions that the jury act as enforcers of societal rules.

Because the comments invited the jury to draw conclusions unsupported by admissible evidence and could not be cured by a corrective instruction, a mistrial was declared.

During a civil jury trial arising from a pedestrian motor vehicle accident involving a child, the defendants moved for a mistrial after the plaintiffs’ counsel delivered an opening address containing alleged misstatements of law and improper argument.

The court found that counsel repeatedly misstated the reverse onus under the Highway Traffic Act by suggesting that all defendants bore the burden of disproving negligence, improperly argued factual conclusions regarding vehicle brake defects without supporting expert evidence, and displayed discovery transcript excerpts suggesting an admission of negligence by one defendant.

The court held that the discovery excerpt was misleading, potentially inadmissible, and taken out of context, particularly given language barriers during the examination for discovery.

Considering the cumulative prejudicial impact of the opening remarks, the court concluded that corrective instructions would not sufficiently remedy the prejudice to the jury.

A mistrial was therefore declared.