David J. Strangio

The court ruled on a threshold motion and costs following a jury trial in a motor vehicle accident case.

The defendant conceded liability, but after the jury awarded no damages, the defendant moved for a declaration that the plaintiff’s injuries did not meet the statutory threshold for health care expenses and non-pecuniary damages under the Insurance Act and regulations.

The court found that while the plaintiff suffered a permanent impairment, it was not serious or important enough to meet the threshold.

The defendant was awarded $150,000 in costs.

The defendants brought a motion to compel the plaintiff to attend two Independent Medical Examinations (IMEs) with a neuropsychologist and an orthopaedic surgeon, arguing that the plaintiff's alleged injuries (physical and brain injury) required assessment by distinct specialists.

The plaintiff opposed, citing timeliness and the sufficiency of a single IME, and sought conditions on the examinations, including pre-approval of questionnaires and a prohibition on ghostwriting.

The court granted leave for the motion, finding a substantial change in circumstances and that it was in the interests of justice.

The court ordered the plaintiff to attend both IMEs, with the neuropsychological assessment contingent on the plaintiff first obtaining her own report.

The court rejected the plaintiff's demands regarding questionnaires and ghostwriting, affirming the statutory obligation to answer relevant questions and the expert's right to choose their method.

However, the court denied the defendants' request for reimbursement of a cancellation fee for a missed IME, as no prior court order or written consent for that specific examination existed.

Two consolidated appeals concerning insurance coverage and the duty to defend.

The application judge found that The Guarantee Company of North America and The Co-operators General Insurance Company had a duty to defend Ryan Reeb in an underlying negligence action, and ordered that three insurers (including Royal & Sun Alliance) share defence costs equally on a going-forward basis.

The appellants challenged the orders on grounds of limitation periods and contractual restrictions.

The Court of Appeal dismissed the appeals, upholding the application judge's reasoning that the duty to defend is an ongoing obligation applied on a rolling basis, that the limitation period does not bar claims for prospective costs, and that the equal cost-sharing arrangement was properly determined.

Ryan Reeb sought a declaration that his homeowner's insurers (The Guarantee Company of North America and The Co-operators General Insurance Company) had a duty to defend him in a negligence action arising from a BB gun incident.

The court found the underlying claim was framed in negligence, not an intentional tort, and that extrinsic evidence should not be considered at this preliminary stage of determining the duty to defend.

The duty to defend was granted.

In a companion application, Royal & Sun Alliance Insurance Company of Canada (RSA), Reeb's other insurer, sought equitable contribution for future defence costs from Guarantee and Co-operators.

The court granted this, rejecting a limitation period argument and ordering the three insurers to share future defence costs equally.