David Francis MacDonald

The plaintiff sued a fitness instructor and gym for injuries sustained when an air-filled medicine ball bounced and hit her in the chin during a 'slam ball' exercise.

The plaintiff alleged the instructor was negligent for providing a bouncing ball without proper instruction or warning.

The court found that the instructor met the standard of care, having provided adequate verbal and visual instructions, and that using an air-filled ball was consistent with industry standards.

The action was dismissed, with the court concluding the plaintiff was the author of her own misfortune.

The parties were unable to agree on costs following a motion where the plaintiffs were granted leave to amend their statement of claim to increase damages and ordered the defendant to answer undertakings, but the balance of the motion was dismissed.

The court found that the defendant was the overall successful party as the plaintiffs were unsuccessful on the most contentious issues.

Taking into account the divided success and the late stage at which the motion was brought, the court awarded the defendant costs of $8,000 on a partial indemnity basis.

The plaintiffs sought an adjournment of a fixed 32-day jury trial, scheduled to commence on May 16, 2022, due to their intention to appeal a prior order that dismissed their request to add a punitive damages claim and denied leave for a further affidavit of documents.

The court denied the adjournment, emphasizing that the action, stemming from a 2014 incident, had been set down for trial twice and counsel had previously certified readiness.

The judge found no extenuating circumstances to justify adjourning a long-booked trial, noting the plaintiffs' delay in seeking amendments and pursuing an appeal.

The plaintiffs brought a motion seeking various forms of interlocutory relief, including compelling discovery, amending their statement of claim to increase damages and add punitive damages, and abridging time for an expert report.

The court granted leave to increase compensatory damages from $4 million to $7 million and ordered the defendant to answer two specific undertakings.

However, the court denied leave for a further affidavit of documents and for adding a punitive damages claim, citing significant delay and presumed prejudice.

The request to abridge time for an expert report was deferred to the trial judge.

This application sought judicial approval for a $1.6 million settlement of a minor's accident benefits claim following a traumatic brain injury.

The court approved the settlement quantum but expressed concerns regarding the proposed structured settlement's adequacy for the minor's future needs, requesting a comprehensive treatment plan.

Additionally, the court reduced the applicant's counsel's requested legal fees from $240,000 to $150,000 plus HST, emphasizing the mandatory disclosure of dockets, disbursements, and retainer agreements in Rule 7.08 applications, particularly when the retainer is not a contingency agreement.

The plaintiff, Anupam Dhar, was awarded damages of $365,000 after a motor vehicle accident trial.

This decision addresses the costs.

Dhar sought partial indemnity costs up to his Rule 49 offer ($350,000) and substantial indemnity costs thereafter, as the judgment was more favourable.

The defendants, McGuinness, argued against Rule 49 consequences due to the complex liability apportionment (10% McGuinness, 90% unidentified motorist, but McGuinness 100% liable to Dhar due to insurance regulation).

The court found Dhar entitled to costs, applying Rule 49 consequences, but reduced the quantum of fees due to excessive time spent by plaintiff's counsel.

The plaintiffs and defendant settled a motor vehicle accident claim for $732,835 just prior to trial, leaving costs to be determined by the court.

The plaintiffs sought partial indemnity costs of approximately $572,000, while the defendant proposed approximately $394,000.

The court noted that liability was clear from the outset, yet the defendant failed to admit liability and delayed making an offer to settle until two weeks before trial, unnecessarily increasing the plaintiffs' costs.

After adjusting for excessive hourly rates for students/clerks and some excessive preparation time, the court fixed the plaintiffs' partial indemnity costs at $310,000 plus HST for fees and $160,000 inclusive of HST for disbursements.

The defendants, William and Mary Wade, sought an extension of time to bring a motion for summary judgment to dismiss the action against them, alleging that trees on their property obstructed visibility at an intersection where a serious motor vehicle collision occurred.

The plaintiffs, the Greens, opposed the extension.

The court dismissed the Wades' motion, finding substantial delay without satisfactory explanation, significant prejudice to the plaintiffs, and a risk of inconsistent factual findings if the summary judgment motion proceeded.

The court emphasized that the novel legal question of a private property owner's duty of care to motorists on adjacent roadways is best determined at a full trial, aligning with principles of proportionality, timeliness, and affordability.

The defendant sought leave to appeal an order dismissing his motion for summary judgment in a personal injury action arising from a motor vehicle accident.

The motions judge had declined to grant partial summary judgment or hold a mini-trial, finding that the defendant's role could not be severed from the continuing narrative of the accident without risking inconsistent findings of fact.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's application of the Hryniak framework and no issue of general importance warranting an appeal.

The appellants appealed a decision regarding whether a leasing company's insurer is protected by the $1 million liability cap under s. 267.12 of the Insurance Act for bodily injury or death arising from the use of a leased motor vehicle.

The Court of Appeal agreed with the application judge that s. 267.12 precludes a lessee from coverage under a lessor's insurance policy beyond the qualified $1 million cap.

The appeal was dismissed.

The applicants sought a determination of whether a lessee of a leased vehicle could access the lessor’s insurance coverage beyond the statutory $1 million cap under s. 267.12 of the Insurance Act following a motor vehicle accident.

They argued that a legislative gap existed between the 2006 amendments to the Insurance Act limiting lessor liability and the later approval of the OEF 110 endorsement restricting coverage for lessees, allowing lessees to access the lessor’s insurance as unnamed insureds during the interim.

The court rejected this argument, holding that s. 267.12 must be interpreted in light of the legislative purpose of protecting lessors and their insurers by capping exposure.

Interpreting the statute to permit lessees to access excess or umbrella policies would undermine the legislative scheme.

The court further held that the excess and umbrella policies at issue did not provide coverage to the lessee based on their wording and the fact that the lessor was not a named insured under the relevant policies.

The application was dismissed.

Following a 21‑day personal injury trial concerning municipal liability for road conditions and signage, the successful plaintiffs sought partial indemnity costs exceeding $1,045,000.

The court considered the complexity of the litigation, the extensive expert evidence, and the reasonableness of the fees and disbursements claimed.

Applying the principle that costs must be fair and reasonable for the unsuccessful party to pay rather than fully reflective of the successful party’s expenditures, the court concluded that the amounts claimed exceeded reasonable expectations.

Significant reductions were made to both fees and disbursements.

Costs were fixed at $406,000 in fees and $200,000 in disbursements, plus applicable taxes.

The plaintiffs brought a negligence action against a municipality arising from a single‑vehicle collision on a rural road curve that caused catastrophic injuries to a young driver.

The court considered whether the municipality breached its duty under s. 44 of the Municipal Act to keep the roadway in a reasonable state of repair, focusing primarily on inadequate warning signage and the absence of an advisory speed sign for a sharp curve.

Expert evidence established that proper signage, including a 40 km/h advisory speed tab and additional warning devices required by the Ontario Traffic Manual, should have been installed.

The municipality had not conducted any evaluation of the signage following amalgamation and allowed substandard signage to remain in place for years.

The court found the municipality liable for failing to maintain the road in a reasonable state of repair, but also held the driver contributorily negligent for failing to sufficiently reduce speed in snowy conditions.

The appellant insurer sought a stay of an arbitrator's order requiring it to pay tuition expenses, rehabilitation support worker expenses, and a special award to the respondent, who sustained a catastrophic brain injury in a motor vehicle accident.

Applying the Armstrong criteria, the Director's Delegate found that while the appeal was brought in good faith, the appellant failed to demonstrate that it would suffer hardship or prejudice if the stay was not granted.

The Delegate noted the exceptional nature of a stay under the Insurance Act and the legislative intent of a special award, concluding that the prejudice to the respondent in ordering a stay outweighed any prejudice to the appellant.

The motion for a stay was denied.

The appellants appealed a trial judge's finding that the appellant driver was partially liable in negligence for a motor vehicle accident.

The trial judge found that the appellant driver failed to slow his vehicle sufficiently after observing the respondents' vehicle enter his lane under icy conditions, which increased the speed of impact.

The Court of Appeal dismissed the appeal, holding that the trial judge's finding was supported by the evidence, as the appellant had put his foot back on the accelerator instead of continuing to slow down.

The applicant, who suffered a moderate brain injury in a pedestrian motor vehicle collision, sought interim attendant care benefits after the insurer terminated them.

The insurer relied on a Designated Assessment Centre (DAC) report suggesting the applicant's need for supervision pre-dated the accident due to ADHD.

The arbitrator found significant flaws in the DAC report, including procedural irregularities and a failure to consider whether the accident exacerbated pre-existing vulnerabilities.

Finding that the applicant established a compelling prima facie case for entitlement and urgency due to safety risks, the arbitrator ordered the insurer to pay interim attendant care benefits pending a full arbitration hearing.

The applicant was found severely injured in a driveway between two houses with no memory of the incident.

He claimed statutory accident benefits, alleging he was struck by a motor vehicle.

The insurer denied the claim, arguing the injuries resulted from an assault.

After hearing extensive medical expert testimony regarding the pattern and severity of the injuries, the arbitrator concluded on a balance of probabilities that the injuries were consistent with a pedestrian-automobile collision and ruled that the applicant was involved in an 'accident' under the Schedule.

The insurer appealed an arbitration order awarding the insured person ongoing income replacement benefits, attendant care benefits, medical benefits, and a special award following a motor vehicle accident.

The Director's Delegate upheld the award of income replacement benefits, finding no error in the arbitrator's conclusion that the insured person suffered a complete inability to engage in suitable employment due to chronic pain.

However, the Delegate reversed the award of attendant care benefits beyond the 104-week mark, holding that the transitional provisions of the SABS-1996 did not suspend the temporal limit.

The Delegate also reversed the award of medical benefits for a specific clinic, finding the arbitrator erred in ordering benefits solely because of a delay in obtaining a DAC report.

The special award was consequently reduced to reflect only those benefits that were unreasonably delayed and actually payable.

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

The insurer terminated weekly income replacement benefits after 104 weeks.

The arbitrator found that the applicant suffered from a chronic pain disorder and met the test of a complete inability to engage in any employment for which he was reasonably suited.

The arbitrator awarded ongoing income replacement benefits, attendant care benefits, medical and rehabilitation expenses, and the costs of various medical reports.

Furthermore, the arbitrator granted a special award of $2,500 against the insurer for unreasonably withholding and delaying payments for medical and attendant care benefits recommended by its own experts.

The applicant was injured in a motor vehicle accident and sought medical and rehabilitation benefits from the insurer.

The insurer denied further benefits and discouraged the applicant from applying, without explicitly requesting a treatment plan.

The insurer later raised the applicant's failure to submit a treatment plan as a preliminary issue at mediation.

The arbitrator held that the applicant failed to submit a valid treatment plan.

However, because the insurer breached its statutory duty to assist the applicant by failing to promptly advise her that a treatment plan was required, the applicant was permitted to proceed to arbitration for expenses incurred before the mediation date.

The applicant was barred from proceeding for expenses incurred between the mediation date and the hearing date, as she was aware of the requirement by that time.