David A. Zuber

The plaintiff was severely injured in a motor vehicle accident while riding as an unbuckled, intoxicated passenger in a taxi cab.

The plaintiff's insurer argued that the taxi driver owed a duty of care to ensure the visibly intoxicated adult passenger was and remained seat belted during the trip.

The Superior Court of Justice applied the Anns/Cooper framework and found no such duty of care exists in Canadian law.

The court held that adult passengers are responsible for their own seat belts, and imposing a positive duty on taxi drivers to monitor intoxicated passengers would be unmanageable and contrary to public policy.

The respondents were injured in a motor vehicle accident while in the course of their employment.

They elected to opt out of WSIA benefits to join a class action and subsequently applied for Statutory Accident Benefits (SABS).

After the class action was dismissed, the insurer terminated their SABS, arguing the election was invalid.

The Licence Appeal Tribunal found the election was made in good faith to pursue the class action, not primarily to claim SABS.

The Divisional Court dismissed the insurer's appeal, holding that the Tribunal applied the correct legal test and reasonably concluded that the ultimate dismissal of the class action did not retroactively invalidate the good faith of the initial election.

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.

The applicant political party brought an application and motion for an interlocutory injunction against the respondent member and his campaigns, alleging unauthorized use of the party's confidential membership list to send emails criticizing the party leader.

The respondents brought a cross-motion to dismiss the application under the anti-SLAPP provisions of the Courts of Justice Act.

The court granted the anti-SLAPP motion, finding that the proceeding arose from expression on a matter of public interest (political debate), the applicant failed to show its claims had substantial merit and no valid defence existed, and the public interest in protecting the expression outweighed the public interest in allowing the proceeding to continue.

The action was dismissed.

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 respondents were wholly successful on the appeal and sought partial indemnity costs totaling over $111,000.

The appellants conceded the respondents were entitled to costs but argued the amounts sought were excessive, proposing a total of $30,000.

The Court of Appeal fixed the costs payable by the appellants at $20,000 for Vicentini, $10,000 for Ford Credit, and $10,000 for Personal Insurance, inclusive of disbursements and HST.

The appellants sought a new trial arising from a jury verdict in a child pedestrian personal injury action, challenging evidentiary rulings on vehicle brakes, expert human factors evidence, and the fairness of the defence conducted by counsel appointed by an insurer reserving rights.

The court held the trial judge properly excluded late-disclosed participant expert opinion evidence extending beyond the contemporaneous inspection form, properly admitted unobjected-to accident reconstruction and human factors evidence, and committed no error in charging the jury.

The court also held that any alleged insurer-insured conflict had to be raised promptly before trial and that no unfairness in the defence was demonstrated.

The appeal was dismissed on liability and damages, but the costs order was varied so that trial costs payable to successful defendants were payable only by the litigation guardian personally and in that capacity, not by the minor appellants personally.

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.

The appellant was seriously injured in a motor vehicle accident involving a leased vehicle.

The appellant sued the driver, the lessees, the legal owner (Daimler Financial), and the beneficial owner (Chrysler).

The motion judge found that Chrysler was an owner under the Highway Traffic Act and vicariously liable, but that both Chrysler and Daimler Financial were lessors under the Insurance Act and entitled to a $1 million cap on liability.

The motion judge also dismissed the appellant's claim that the driver was an unnamed insured under Daimler Financial's excess policy and dismissed the negligent entrustment claim.

The Court of Appeal upheld all of the motion judge's findings, dismissing both the appeal and the cross-appeal.

The appellants and the respondent insured brought motions to disqualify the law firm appointed by the insurer from continuing to represent the insured on an appeal and cross-appeal.

The underlying action involved a motor vehicle accident where the jury found the insured solely responsible, primarily for negligent parental supervision (uncovered), but also for an unsuitable choice of unloading area (potentially covered).

The insurer-appointed counsel filed a cross-appeal challenging the only finding that could trigger coverage.

The Court of Appeal granted the motions, finding a reasonable apprehension of a conflict of interest, and ordered the insurer to pay for independent counsel to represent the insured.

The appellant tripped on a municipal sidewalk and fractured her wrist, but did not notify the City within the 10-day statutory period because she initially believed her injury was minor.

After learning her injury would cause permanent impairment, she retained counsel and provided notice four months post-accident.

The motion judge granted summary judgment dismissing the action, finding no reasonable excuse for the delay.

The Court of Appeal allowed the appeal, holding that the initial lack of awareness of the injury's severity constituted a reasonable excuse.

The Court further held that whether the City was prejudiced by the delay was a genuine issue requiring a trial, as the appellate record was insufficient to make the necessary findings of fact.

The moving party, Advanced Framing Corp., sought leave to appeal to the Divisional Court from an order dismissing its motion for summary judgment in a simplified procedure action regarding a collapsed riding arena and insurance coverage.

The court applied the test for granting leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure.

The court found no conflicting decisions regarding the test for summary judgment and held that the matters at issue did not raise questions of general or public importance.

The motion for leave to appeal was dismissed with costs.

The plaintiff moved for judgment on an accepted offer to settle, seeking a determination on the applicable prejudgment interest rate.

Shortly before the offer was accepted, an amendment to the Insurance Act came into force, reducing the prejudgment interest rate for non-pecuniary damages.

The plaintiff argued the amendment was substantive and did not apply retroactively, while the defendants argued it was procedural and did apply.

The court held that the amendment to the calculation of prejudgment interest was procedural in nature and therefore applied retroactively, resulting in the lower interest rate being applied to the settlement amount.

Following a successful appeal, the appellants sought costs on a substantial indemnity basis of $54,456.00, arguing that the trial tactics of defence counsel warranted such an award.

The Court of Appeal found no basis in the conduct of the appeal for substantial indemnity costs.

The court fixed the costs of the appeal at $33,000 all-inclusive, payable to the appellants.

The moving party, a third-party subcontractor, sought leave to appeal an interlocutory order dismissing its motion for summary judgment.

The underlying action involved a claim for damages resulting from severed power cables during demolition work.

The moving party argued that a full and final release barred the third-party claim for contribution and indemnity.

The Divisional Court dismissed the motion for leave, finding no conflicting decision and no good reason to doubt the correctness of the motions judge's conclusion that a trial was required to determine the parties' intentions regarding the release.

The appellants were involved in a rear-end motor vehicle collision and sued for personal injuries.

At trial, the judge failed to instruct the jury that the evidentiary burden shifts to the defendant in a rear-end collision.

Furthermore, the trial judge permitted the respondents to introduce extensive surveillance evidence that had not been disclosed in an affidavit of documents, leading to a trial by ambush.

The Court of Appeal allowed the appeal, substituted a finding of liability against the respondents, and ordered a new trial on the issue of damages due to the severe prejudice caused by the undisclosed surveillance evidence.

Following an appeal, the defendant sought costs and submitted a bill of costs for $28,908.49, but indicated a willingness to accept $18,000.

The plaintiffs did not contest entitlement but argued the appropriate amount was $15,000.

The Divisional Court found the appeal was not overly complex and agreed with the plaintiffs' submission, fixing the costs of the appeal at $15,000 all-inclusive.

The plaintiff appealed a jury verdict arising from a motor vehicle accident where his motorcycle collided with the defendant's left-turning truck while the plaintiff was attempting to pass.

The jury apportioned liability 85% to the plaintiff and 15% to the defendant, and assessed total damages at $206,958.46, resulting in a net award of $16,500.

On appeal, the plaintiff argued the apportionment of liability and assessment of damages were unreasonable and that the jury relied on inadmissible lay opinion evidence.

The Divisional Court dismissed the appeal, finding the trial judge's instructions were adequate, the lay witness was properly confined to fact evidence, and the jury's verdict on both liability and damages was supported by the evidence and not plainly unreasonable or unjust.

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.