David Zarek

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.

The appellant slipped and fell on ice and snow on the driveway of a rented residential property.

He sued the landlord and later added the tenant as a co-defendant.

The motions judge granted summary judgment dismissing the action against both defendants.

On appeal, the Court of Appeal upheld the dismissal against the tenant, finding the claim was statute-barred because the appellant failed to rebut the presumption that he discovered his claim on the date of the accident.

However, the Court allowed the appeal regarding the landlord, finding genuine issues for trial concerning the interplay between the lease terms, the Occupiers' Liability Act, and the landlord's maintenance obligations under the Residential Tenancies Act.

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.

The defendant grandmother moved for summary judgment to dismiss claims of vicarious liability and negligent entrustment after her grandson used her van to run over and kill a pedestrian in a public park following a drug deal.

The court granted the motion, finding that a public park is not a 'highway' under the Highway Traffic Act, precluding vicarious liability.

The court also dismissed the negligent entrustment claim, holding that the grandmother owed no duty of care to a pedestrian in a park and that the grandson's criminal use of the vehicle as a weapon was not reasonably foreseeable.

The appellants appealed a motion judge's refusal to reinstate their third party claim after it was dismissed by the registrar.

The Court of Appeal allowed the appeal, finding that the motion judge failed to attach sufficient weight to the fact that the progression of the third party claim was entirely dependent on the main action, which was still pending.

Furthermore, the form of the registrar's dismissal order had misled counsel, and the motion judge's finding of prejudice was overtaken by the appellants' decision to discontinue claims against the minor third parties.

The appellant, who suffered a serious brain injury in a motor vehicle accident, appealed an arbitrator's decision terminating his non-earner benefits as of August 31, 2002.

The arbitrator had found that by September 2002, the appellant had resumed quality participation in enough of his pre-accident activities, such as socializing and attending school, that he no longer suffered a complete inability to carry on a normal life.

The Director's Delegate dismissed the appeal, finding no error in the arbitrator's holistic assessment of the appellant's pre- and post-accident activities and potential.

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

The Insurer denied the claim on the basis that the Applicant's vehicle was uninsured at the time of the accident, as she had cancelled the policy a month prior.

The Applicant argued she had not cancelled the policy and had not received written notice of cancellation.

The Arbitrator found the Applicant's testimony unreliable and accepted the Insurer's evidence that the Applicant had initiated the cancellation.

The Arbitrator concluded that the Applicant knew or ought reasonably to have known she was operating an uninsured vehicle, triggering the exclusion under section 30(1) of the Schedule.

Following an arbitration decision awarding the applicant non-earner benefits for approximately 50 weeks, both parties sought their expenses of the hearing.

The insurer had made an offer to settle six days before the hearing, which was slightly better than the arbitration outcome.

The arbitrator found that the parties had mixed success and that the offer to settle should be given no weight because it was delivered only three business days before the hearing, giving the applicant insufficient time to consider it.

The arbitrator ordered that the parties bear their own expenses.

The applicant, who was 17 years old and expelled from school at the time, suffered a serious brain injury in a motor vehicle accident.

He applied for a non-earner benefit, which the insurer disputed.

The arbitrator found that the applicant suffered a complete inability to carry on a normal life immediately following the accident, as his participation in activities was tempered by the effects of medication and his injuries.

However, by September 2002, the applicant had ceased taking the medication, resumed his pre-accident social life, and demonstrated independence, returning to a trajectory consistent with his pre-accident potential.

The arbitrator awarded the non-earner benefit for the period from September 18, 2001, to August 31, 2002, along with interest on overdue payments.

The appellants held mortgages on a property that was destroyed by fire after being vacated by the owners.

The respondent insurer denied the appellants' claims under the standard mortgage clause, arguing that the vacancy was a material change to the risk under Statutory Condition 4 of which it was not notified.

The Supreme Court of Canada held that Statutory Condition 4 conflicts with the standard mortgage clause, which explicitly preserves coverage despite any act or neglect of the mortgagor, including vacancy.

The appeal was allowed, and the insurer was precluded from relying on the statutory condition to void the mortgagees' coverage.

The appellant insurer appealed a summary judgment granting the respondent mortgagees coverage under a fire insurance policy after the mortgaged property was destroyed by fire.

The mortgagors had vacated the property, and the mortgagees took control of it but failed to notify the insurer of the vacancy.

The Court of Appeal held that while the vacancy exclusion did not apply to the mortgagees due to the mortgage clause, Statutory Condition 4 did apply.

The mortgagees' actions in taking control of the vacant property constituted a material change in risk within their control and knowledge.

Their failure to notify the insurer voided the policy.

The appeal was allowed and the actions dismissed.

Following a decision denying the applicant's claim for other disability benefits, the parties were unable to resolve the issue of expenses.

The insurer argued the applicant should be denied expenses because he was not a credible witness and had caused the insurer to incur significant costs by changing his position on the claim period at the last minute.

The arbitrator found that while the applicant's case was not entirely without merit, his late decision not to pursue benefits beyond the 104-week point caused wasted expenses and prolonged the proceeding.

The arbitrator awarded the applicant one-half of his assessed expenses, fixing the total payable by the insurer at $6,471.45.

The applicant sought other disability benefits following a second motor vehicle accident in October 1996.

The insurer denied the claim.

The applicant argued the insurer breached procedural requirements by failing to respond within 14 days, but the arbitrator found substantial compliance and no prejudice.

On the merits, the arbitrator found the applicant lacked credibility, noting he failed to disclose the second accident to multiple health care practitioners and his pre-accident condition was significantly worse than he claimed.

The application for benefits was dismissed as the applicant failed to prove his impairment resulted from the second accident.

The applicant claimed he was struck by a motor vehicle while crossing the street on July 15, 1998, and sought statutory accident benefits.

The insurer disputed the date and cause of the injuries, arguing the incident occurred on July 16 and did not cause the impairment.

In a preliminary issue hearing, the arbitrator found the applicant's version of events, supported by objective evidence from his workplace and hospital records, established on a balance of probabilities that he sustained an impairment as a result of the motor vehicle incident on July 15, 1998.

The applicant was permitted to proceed to a hearing on his entitlement to benefits.

The applicant was injured in a motor vehicle accident and received statutory accident benefits for three years.

The insurer terminated weekly income benefits, child care supplement, and housekeeping expenses at the 156-week mark.

The applicant sought arbitration, claiming she was continuously prevented from engaging in substantially all of her normal activities due to chronic pain and cognitive difficulties.

The arbitrator reviewed extensive video surveillance evidence showing the applicant engaging in various physical activities, including driving, shopping, bending, lifting, and dancing.

The arbitrator concluded that while the applicant experienced pain, she was not continuously prevented from performing her normal housekeeping, child care, and recreational activities.

The claims for weekly benefits, child care supplement, and housekeeping expenses were dismissed, but $164 for babysitting expenses during pain flare-ups was awarded.

The appellant appealed an arbitration decision regarding the calculation of his weekly income benefits under the Statutory Accident Benefits Schedule.

The arbitrator had calculated his pre-accident income by averaging it over the full 52 weeks preceding the accident, rather than only the 19 weeks he actually worked.

The Director's Delegate upheld the arbitrator's decision, following recent appellate authority that pre-accident income must be averaged over the full 52-week period regardless of whether the insured person earned income throughout that period.

The appeal was dismissed and no appeal expenses were awarded.

The applicant applied for statutory accident benefits following a motor vehicle accident.

The insurer alleged the claim was fraudulent.

At the commencement of the arbitration hearing, the self-represented applicant sought to withdraw her dispute.

The arbitrator permitted the withdrawal but found the applicant's failure to provide advance notice of her intention to withdraw constituted an abuse of process.

The applicant was ordered to pay the insurer $2,000 for the assessment fee.

The insurer's claim for arbitration expenses was denied as the relevant statutory amendments did not apply retroactively.