David Tompkins

A third‑party insurer moved for summary judgment dismissing a coverage claim brought by another insurer following a motor vehicle collision.

The dispute concerned whether the driver was an insured under an automobile policy issued to his father and whether the insurer was obligated to indemnify him.

The court considered the Insurance Act, the Ontario Automobile Policy (OAP 1), and evidence relating to ownership of the vehicle and consent to drive it.

The court found the driver was the registered and actual owner of the vehicle and was not operating it with the consent of the named insureds.

Accordingly, he was not an insured under the policy and the insurer had no duty to indemnify.

Following the discontinuance of the plaintiffs' action, the court determined the costs payable to the defendants.

The plaintiffs had sought to discontinue the action without costs, which was denied.

The court awarded partial indemnity costs to the defendants for both the action and the motion, noting the plaintiffs' reprehensible conduct in continuing the action against personal defendants despite admitting it was commenced in error.

The plaintiffs were ordered to pay a total of $53,250 in costs to the various defendants.

The third party insurer brought a motion for summary judgment seeking dismissal of a third party claim brought by another insurer in a motor vehicle accident action.

The dispute concerned whether the moving insurer had an obligation to indemnify the driver under a policy issued to his father where the vehicle had been transferred into the driver’s name prior to the collision.

The responding insurer argued the policy applied either through statutory absolute liability provisions or because the driver was an insured operating the vehicle with the named insured’s consent.

The court held that material factual disputes remained regarding common law ownership of the vehicle and whether the driver had express or implied consent to operate it.

Because these issues required additional evidence, particularly from the named insured, summary judgment was not appropriate.

In a motor vehicle accident tort action scheduled for jury trial, the defendants brought a motion seeking production of a draft Form 1 assessment relating to attendant care benefits under the Statutory Accident Benefits Schedule.

The document had been inadvertently disclosed by the plaintiff’s counsel during production of the accident benefits file, after which the plaintiff asserted litigation privilege.

The court held that litigation privilege did not apply because the dominant purpose of the occupational therapist’s assessment was to support a statutory claim for accident benefits rather than to prepare for litigation.

The plaintiff could not retroactively convert the document into privileged litigation material after receiving an unfavourable assessment.

The motion was granted and the document ordered produced, though admissibility at trial remained within the trial judge’s discretion.