David Zarek

The appellants challenged an order refusing leave to amend their amended statement of defence in an insurance indemnity proceeding under s. 132(1) of the Insurance Act.

They sought to characterize alleged lies by the insureds about the mechanism of injury as civil fraud.

The court held that, regardless of whether civil fraud was legally available in such a proceeding, the existing pleading already allowed the appellants to advance the factual allegations necessary to defend the indemnity claim and oppose relief from forfeiture.

The proposed amendment was therefore irrelevant in the circumstances, and the motion judge made no reversible error in finding non-compensable prejudice on the eve of trial.

The appeal was dismissed with agreed costs to the respondent.

The respondent suffered injuries after slipping and falling on ice in a parking lot while reaching for his vehicle's door handle.

He received statutory accident benefits (SABs) after a LAT adjudicator found the incident was an 'accident' under the SABs Schedule.

He subsequently sued the parking lot owner and winter maintenance provider for occupiers' liability.

The appellants moved to determine whether any damages awarded must be reduced by the SABs received under s. 267.8 of the Insurance Act, and whether OHIP's subrogated claim was barred under s. 30(5) of the Health Insurance Act.

The motion judge found the tort claim did not arise directly or indirectly from the use or operation of an automobile, meaning the statutory deductions and subrogation bars did not apply.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's substantive approach or her conclusion that the context and purpose of the LAT proceeding differed from the tort action, precluding abuse of process or issue estoppel.

The defendant insurer moved for summary judgment to dismiss the plaintiff law firm's claim for business interruption coverage.

The law firm was forced to close indefinitely after organized criminals in the tow truck industry targeted its office with arson and gunfire, causing its insurance clients to withdraw all their files out of fear of further attacks.

The insurer argued that the policy only covered business interruption during the time required to physically repair the building.

The court dismissed the insurer's motion and granted a declaration of coverage in favour of the law firm, finding that the extended closure was 'as a result of' the direct physical loss or damage from the insured peril of criminal acts.

The moving parties sought leave to appeal an order of C.M. Smith dated December 10, 2025.

After being advised that the Court of Appeal determined the underlying order was a final order, the Divisional Court dismissed the motion for leave to appeal and ordered no costs.

The moving party brought a motion to quash the insurers' appeal of an order denying them leave to amend their pleadings to add the defence of civil fraud.

The moving party argued the order was interlocutory and should be appealed to the Divisional Court.

The Court of Appeal held that an order refusing leave to amend a pleading to advance a new substantive defence is a final order.

Because the order foreclosed the insurers' ability to assert the distinct defence of civil fraud, the appeal properly lies to the Court of Appeal.

The motion to quash was denied.

This is a costs endorsement following an appeal where success was divided between the parties.

The Court of Appeal for Ontario determined that, given the divided success, no order of costs would be made for the appeal.

The Court of Appeal for Ontario heard an appeal from a judgment awarding over $2.5 million in damages to a cyclist injured in a collision with a motor vehicle.

The appellants, the driver and the excess insurer, challenged the trial judge's findings on liability, damages, and costs.

The Court dismissed the appeal on liability, future care, deductions, and contingencies, upholding the trial judge's finding that the driver failed to discharge the reverse onus under the Highway Traffic Act.

However, the Court allowed the appeal regarding the past and future loss of income award, finding a palpable and overriding error in the trial judge's calculation of the pre-collision earning capacity by misinterpreting the currency of expert evidence.

The income loss award was varied to adjust the earning capacity figure to 2022 dollars instead of 2012 dollars.

The appellants, a condominium corporation and its snow removal contractor, appealed a trial decision finding them negligent for a slip and fall injury.

The respondent slipped on an icy roadway that had been plowed but not salted in a timely manner.

The appeal focused on the standard of care, arguing the trial judge misapprehended expert evidence and applied an unreasonable standard.

The Court of Appeal dismissed the appeal, affirming the trial judge's finding that the contractor's delay in applying road salt fell below the reasonable standard of care, given the foreseeable ice formation and the contractor's problematic system for salt application.

This is an appeal from a trial judgment that found a third party, Dennis G. K. Chu, 50% responsible for injuries sustained by Tate Moran in a motor vehicle accident, requiring him to indemnify Ottavio Fabrizi for a settlement.

The trial judge determined that Chu's intentional tortious conduct (road rage) was a "but for" cause of Fabrizi running a red light and colliding with another vehicle.

Chu appealed, arguing errors in the application of the causation test, the failure to consider Fabrizi's negligence as an intervening act, and the misapplication of the "agony of the moment" doctrine.

The Court of Appeal dismissed the appeal, affirming that contribution and indemnity under the Negligence Act can apply where one tort is intentional and the other negligent.

The court upheld the trial judge's "but for" causation finding and clarified that the "agony of the moment" doctrine is a defence to the standard of care, not a causation issue, and is not available to the party who created the emergency.

The defendants brought a motion to compel the plaintiff, who claims over $4 million in damages following a motor vehicle accident, to attend independent medical examinations by a psychiatrist, neurologist, physiatrist, and vocational evaluator.

The plaintiff opposed the assessments, arguing they were unnecessary and duplicative.

The court granted the motion, finding that given the complex medical issues, including alleged traumatic brain injury, chronic pain, and significant loss of income claims, trial fairness dictated that the defendants be permitted to have the plaintiff assessed by these specialists to respond to the plaintiff's expert evidence.

The court also admonished plaintiff's counsel for inappropriately attempting to impose conditions directly on the defendants' proposed assessors.

The plaintiff appealed an Associate Judge's order requiring her to attend three independent medical examinations, re-attend discovery, and restricting her counsel from communicating with defence experts.

The defendants cross-appealed the denial of a pleading amendment alleging the plaintiff was a 'sophisticated litigant' who might exaggerate her claims.

The Superior Court upheld the denial of the pleading amendment, the discovery re-attendance, and the neuropsychological examination.

However, the court set aside the orders for orthopedic and vocational assessments due to insufficient evidence and lack of jurisdiction for the Associate Judge to order an assessment by a non-health practitioner.

The restriction on counsel communicating with defence experts was upheld but varied to expire once the expert report is completed.

The defendant brought a motion to adjourn the pre-trial conference and trial of a motor vehicle accident action.

The plaintiffs had served several expert reports, including a new economic loss report and a biomechanics report, shortly before the deadline and trial date.

The defendant argued that additional time was required to obtain responding expert reports, conduct further defence medical examinations, and pursue documentary discovery from non-parties.

The court granted the adjournment, finding that the prejudice to the defendant in proceeding to trial without the opportunity to fully defend the claims outweighed the prejudice to the plaintiffs caused by the delay.

The plaintiff was injured in a motor vehicle accident when the vehicle he was in was struck by a vehicle driven by the defendant.

The main action settled for $220,000.

The defendant brought a third party claim against another driver, alleging that the third party's road rage and threatening behaviour caused the defendant to flee the scene and strike the plaintiff's vehicle.

The court found that the third party's conduct materially contributed to the accident and apportioned liability 50/50 between the defendant and the third party, ordering the third party to pay $110,000.

In a motor vehicle accident tort action, the defendants brought a motion to amend their statement of defence, remove the plaintiff's counsel from the record, compel the plaintiff to attend independent medical examinations (IMEs), and stop the plaintiff's counsel from communicating with the IME evaluators.

The court allowed the factual amendments to the statement of defence but struck proposed paragraphs alleging the plaintiff was using her legal training to exaggerate her claims, finding them scandalous.

The court refused to remove the plaintiff's counsel, noting his potential evidence as her former law professor was tangential.

Finally, the court ordered the plaintiff to attend the IMEs without conditions and directed her counsel to cease imposing terms on the defendants' medical experts.

This decision addresses a costs dispute arising from a motor vehicle accident involving a rental car.

Aviscar Inc. sought substantial indemnity costs against Sinisa Filipovic and Certas Direct Insurance Company for their refusal to accept primary insurance responsibility under the Insurance Act and for unnecessarily prolonging litigation.

The court found Aviscar's early offer to settle was reasonable and that the respondents' actions led to significant unnecessary legal expenses.

Applying proportionality and considering the respondents' conduct, the court awarded Aviscar Inc. a total of $49,500 in costs.

The appellant appealed a motion judge's decision dismissing his action against the Toronto Police Services Board and an insurance company on the basis that the claims were barred by the two-year limitation period under the Limitations Act, 2002.

The motion judge found that the appellant was aware of all facts supporting his claims by June 2010 (regarding the insurance company) and January 2011 (regarding the police board), and that he commenced his action more than two years after those dates.

The Court of Appeal upheld the motion judge's decision, finding that discoverability for limitation purposes is based on knowledge of the facts necessary to support a claim, not knowledge of the applicable law.

The plaintiff, who suffered a severe traumatic brain injury in a motor vehicle accident, sought court approval for two settlements: a $1 million tort settlement reached in 2007 and a $3 million statutory accident benefits settlement.

The court approved both settlements, noting the tort settlement should have had a capacity assessment at the time.

However, the court found the 30% contingency fee agreement signed on the eve of the accident benefits settlement was not fair and reasonable under the Solicitors Act.

The agreement was declared void, and the court reduced the legal fees to 17% of the recovery.

The plaintiffs brought a motion to amend their statement of claim to correct the names of defendants 'John Doe 2' and 'XYZ Company' to Chanthan Mech and Vitou Huot on the grounds of misnomer, after the limitation period had expired.

The action arose from a fatal altercation at a restaurant during a social function.

The court applied the 'litigation finger' test for misnomer.

The court granted the motion to substitute 'John Doe 2' with Chanthan Mech, finding sufficient evidence that she was an organizer of the event and would have recognized she was the intended defendant.

The court dismissed the motion to substitute 'XYZ Company' with Vitou Huot, finding insufficient evidence that he was an organizer.

The plaintiff's action against the Toronto Police Service Board and Desjardins General Insurance for alleged harassment, racial profiling, and wrongful insurance cancellation was dismissed on the basis of the two-year limitation period.

The court found that the plaintiff was aware of the facts giving rise to his claims by January 5, 2011, at the latest, but did not issue his Statement of Claim until July 28, 2014, well beyond the statutory period.

The plaintiff's argument of ignorance of the law, rather than facts, was rejected as a basis for extending the discoverability principle.

Costs were awarded to the defendants, reduced by half due to the plaintiff's self-represented status and financial burden.

The plaintiff, whose claim for statutory accident benefits was denied by the defendant insurer, proceeded through mediation and arbitration.

After the arbitrator issued a decision, the plaintiff commenced a civil action for punitive and general damages, alleging bad faith, negligence, and breaches of the Human Rights Code in the handling of his claim.

The defendant moved for summary judgment to dismiss the action.

The court granted the motion, holding that the plaintiff's claims were "in respect of" entitlement to statutory accident benefits and thus subject to the mandatory dispute resolution scheme of the Insurance Act.

The court found the action barred because the plaintiff had elected arbitration to its conclusion, and the two-year limitation period had expired, with neither the discoverability principle nor the doctrine of special circumstances applying.

Furthermore, the Human Rights Code allegations were struck as disclosing no reasonable cause of action for events predating the relevant statutory amendment.