Dean Melamed

During a jury trial for a personal injury action arising from a motorcycle collision, the defendant brought a threshold motion under s. 267.5 of the Insurance Act.

The defendant sought a declaration that the plaintiff's claims for healthcare expenses and non-pecuniary losses were barred.

The court evaluated medical and lay evidence regarding the plaintiff's mild traumatic brain injury and post-concussion syndrome.

The court found that while the plaintiff could still work with accommodations, her impairments significantly disrupted her activities of daily living and social life.

The motion was dismissed, as the plaintiff established she sustained a permanent, serious impairment of an important physical, mental, or psychological function.

In a personal injury trial arising from a motor vehicle accident, the defendant brought a mid-trial motion to preclude the plaintiff's accounting expert from testifying.

The expert calculated the plaintiff's loss of income based on hypothetical scenarios regarding her unreported tip income as a server.

The defendant argued the reports lacked objective data and were prejudicial.

The court dismissed the motion, finding the expert evidence met the Mohan criteria for admissibility and that the jury could be trusted to evaluate the factual assumptions underpinning the expert's calculations.

The defendant sought an adjournment of a five-week civil jury trial on the grounds of late document disclosure regarding the plaintiff's tip income.

The plaintiff opposed, citing prejudice due to the seven-year delay since the accident, witness availability, and increasing monetary thresholds.

The court denied the adjournment, finding that suitable measures could mitigate prejudice to the defendant and that the prejudice to the plaintiff and the broader impact on the administration of justice outweighed the defendant's need for delay.

The applicants sought the court's intervention under s. 128(5) of the Insurance Act to appoint an umpire for a property damage appraisal after a collision involving a lawnmower and their home, as their appointed appraisers could not agree on a suitable umpire.

The court considered the proposed candidates from both sides, assessing their expertise and impartiality.

While finding no disqualifying bias in any candidate, the court chose an alternative from the respondents' list, Thomas Hanrahan, to ensure fairness given the applicants' objections to the respondents' first choice.

The court declined to award costs, noting that the dispute was made larger than necessary.

Two consolidated actions were brought by food industry companies and related parties against their commercial insurer following losses arising from an Indian meal moth infestation.

The first action sought indemnification for lost rental income and a bonus allegedly owed to the principal owner.

The second action sought indemnification for alleged theft of equipment and assets by a court-appointed receiver, resulting in business interruption losses.

The trial judge dismissed the first action entirely, finding the losses were indirect and not covered by the policy.

In the second action, the trial judge dismissed the property claim as time-barred but allowed the business interruption claim to proceed in part by applying a rolling limitation period.

On appeal, the Court of Appeal upheld the dismissal of the first action and reversed the trial judge's application of a rolling limitation period to the business interruption claim, finding that the insurer's obligation to indemnify was not a recurring contractual obligation.

Both actions were dismissed in their entirety.

Plus Development Group Corp. brought a motion to oppose the confirmation of a Master's Report, which had awarded Roni Excavating Ltd. $523,241.99 plus costs for excavation work, including extras for the removal of contaminated soil.

Plus Development argued that the Master erred in evidentiary rulings, findings of fact regarding Roni Excavating's knowledge of soil conditions, and the authorization of extras.

The court dismissed Plus Development's motion, confirming the Master's Report, finding no palpable or overriding error in the Master's evidentiary rulings or findings of fact.

The court affirmed that Roni Excavating was entitled to charge for the removal of contaminated material as an extra, as contemplated by the contract and authorized by Plus Development's agent.