David Zarek

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.

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.

The plaintiff, catastrophically injured in a motor vehicle accident, sought statutory accident benefits in the form of retrospective attendant care benefits for a period between 2001 and 2006.

The motion asked the court to determine the date from which interest should accrue if those benefits were ultimately found to be payable.

The insurer argued interest could only begin after it received a Form 1 assessment of attendant care needs, relying on appellate authority interpreting the Statutory Accident Benefits Schedule.

The court held that under the applicable 2001 version of the Schedule, interest begins when the insurer had sufficient information to assess entitlement to the benefit, even absent a formal Form 1.

On the facts, the insurer had early knowledge of the claimant’s catastrophic impairments and attendant care needs.

Following earlier motion decisions involving crossclaims between defendants in an action arising from an oil spill at a residence, the successful defendant sought substantial indemnity costs exceeding $25,000.

The responding defendant argued for a significantly lower award.

The court rejected the request for substantial indemnity costs, finding no misconduct warranting a punitive award and emphasizing the governing principle of reasonable expectations of the unsuccessful party.

Although the moving party obtained partial summary judgment and a declaration regarding future defence costs, the success was only partial.

The court fixed costs at $12,000 inclusive.

The plaintiffs sued the defendants for property damage caused by an oil spill.

The defendant Bluewave brought a motion for partial summary judgment against the co-defendant Daniel Charles Transport for the costs of defending the action, arguing that Daniel Charles Transport breached a contractual obligation to obtain liability insurance naming Bluewave as an additional insured.

Daniel Charles Transport brought a motion to withdraw admissions and a cross-motion to dismiss Bluewave's crossclaim based on a Pierringer Agreement it had reached with the plaintiffs.

The court dismissed Daniel Charles Transport's motions, finding no justification to withdraw the admissions and that the Pierringer Agreement did not extinguish Bluewave's crossclaim for several liability.

The court granted Bluewave's motion for summary judgment, finding that Daniel Charles Transport breached its covenant to insure and that the pleaded allegations triggered a duty to defend.

Applying the principle of equitable contribution, the court ordered Daniel Charles Transport to pay 50% of Bluewave's past and future defence costs.

The representative plaintiff in a proposed class proceeding sought leave to discontinue the action under s. 29(1) of the Class Proceedings Act, 1992.

The claim concerned retiree health benefits allegedly promised to spouses of employees who accepted an early retirement program.

The representative plaintiff ceased to have a personal cause of action after his spouse predeceased him and he was unable to find another class member willing to assume the representative role.

The court held that, given the small class size, lack of interest among potential class members, and the marginal economics of the litigation, discontinuance was appropriate.

Leave to discontinue was granted subject to notice being provided to potential class members.

Following a successful summary judgment motion dismissing the claims against a defendant vehicle owner, the court addressed the issue of costs.

The successful defendant sought partial indemnity costs for both the motion and the defence of the action and requested a Sanderson order requiring the co‑defendant insurer to pay those costs.

Applying Rule 57.01 of the Rules of Civil Procedure and the principles governing Sanderson orders, the court found it reasonable that the defendants had been joined and that the insurer had actively attempted to shift liability onto the successful defendant.

The court held that fairness justified ordering the insurer to pay the successful defendant’s costs.

The court fixed partial indemnity costs at $24,292.47 for the summary judgment motion and $75,000 for the remainder of the action.