Debbie Orth

This is an appeal from an arbitrator's decision concerning a loss transfer dispute between two out-of-province insurers, Manitoba Public Insurance (MPI) and Insurance Corporation of British Columbia (ICBC), following a motor vehicle accident in Ontario.

MPI sought indemnification from ICBC under s. 275 of the Ontario Insurance Act for accident benefits paid to its insureds under Manitoba's regulatory scheme.

The arbitrator ruled that s. 275 was inapplicable because MPI had not paid Ontario Statutory Accident Benefits.

The Superior Court upheld the arbitrator's decision, confirming that the Ontario Insurance Act's loss transfer provisions apply only to benefits paid under the Ontario scheme and do not have extraterritorial application to benefits paid under another province's legislation, even if the accident occurred in Ontario and both insurers are signatories to the Power of Attorney and Undertaking (PAU).

Following the dismissal of the defendant's motion for summary judgment, the plaintiffs sought costs on a substantial indemnity basis, arguing the motion was unreasonable under Rule 20.06.

The defendant argued for partial indemnity costs.

The court found that while the motion was misguided and caused delay, the defendant did not engage in improper conduct, noting that a case conference judge had permitted the motion to proceed without objection from the plaintiffs regarding its suitability.

The court awarded the plaintiffs costs on a partial indemnity basis fixed at $12,500.

The defendant landlord brought a motion for summary judgment to dismiss the plaintiffs' action.

The plaintiff suffered a serious brain injury after allegedly falling from the roof of the commercial plaza due to an electrical shock while inspecting ventilation equipment.

The landlord argued there was no genuine issue for trial based on causation, lease exclusion clauses, and the plaintiff being the author of his own misfortune.

The court dismissed the motion, finding genuine issues for trial regarding the interpretation of the lease, the cause of the fall, and the potential apportionment of liability among multiple defendants, noting that partial summary judgment in a jury case risks inconsistent findings.

The defendant insurer brought two motions: one to be added as a statutory third party under s. 258(14) of the Insurance Act, and another to strike paragraphs in the plaintiff's Amended Statement of Claim seeking declaratory relief regarding the validity of the insurance policy.

The court granted the motion to be added as a statutory third party on consent.

The court dismissed the motion to strike, finding that the plaintiff had a tenable claim for declaratory relief regarding the enforceability of the policy, even without a direct cause of action against the insurer at this stage.

The plaintiff, Gore Mutual Insurance Company, sought a declaration that the defendant, Sovereign General Insurance Company, was required to provide coverage for the theft of a pick-up truck from Orr Motors, based on its garage policy.

Sovereign brought a motion for summary judgment, relying on a policy exclusion for leased vehicles.

The court found that the evidentiary record was insufficient to fully appreciate the case, particularly regarding the lease agreement's commencement and the reason the truck was on the lot at the time of theft.

Consequently, the motion for summary judgment was dismissed, and no costs were awarded due to deficiencies in both parties' evidentiary submissions.

An insurer appealed a summary judgment decision that permitted insureds to retain insurance payments in excess of their actual loss.

The insurer paid $1,030,187.04 to the insureds following a fire loss, but an appraisal determined the total payable amount was $926,677.03, resulting in an overpayment of $103,510.01.

The motion judge held that the insureds could retain the excess funds based on an email communication from the insurer's representative.

The Court of Appeal reversed, holding that a contract of insurance is a contract of indemnity and cannot be used to turn misadventure into profit.

The court found the motion judge made a palpable and overriding error of fact in interpreting the email and committed extricable legal errors in analyzing both the insurance policy and the Insurance Act.

The plaintiff was involved in a motor vehicle accident with a rental vehicle.

After the two-year limitation period expired, the plaintiff sought to add the renter of the vehicle as a defendant, arguing that the rental company failed to provide the renter's identity despite multiple requests.

The proposed defendant opposed the motion, arguing the claim was statute-barred.

The court found that the plaintiff exercised reasonable diligence in attempting to identify the renter and granted leave to amend the statement of claim to add the proposed defendant, without prejudice to any limitation defences.

The insured applied for a declaration that his automobile insurer owed him a defence and indemnity after denying coverage on the basis that he permitted an unauthorized driver to operate his vehicle contrary to statutory condition 4(1) under O. Reg. 777/93 and the Ontario Automobile Policy.

The driver, the insured’s girlfriend, possessed only a G1 licence and was involved in a collision while driving alone on a 400‑series highway.

The court held that the proper test was whether the insured took reasonable and prudent precautions to ensure the statutory condition was not contravened.

Given that the insured had seen the driver produce a licence for identification and had previously ridden with her while she drove, and given the visual similarity between G1 and full licences, the insured acted reasonably and was not wilfully blind.

The insurer therefore remained obligated to provide defence and indemnity.

The plaintiff brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s administrative dismissal of a personal injury action for delay.

The court reviewed the contextual factors governing reinstatement of dismissed actions, including promptness of the motion, explanation for delay, inadvertence, abandonment of the claim, and prejudice to the defendants.

Although the explanations for litigation delay were weak, the court found evidence that the plaintiff continued to pursue the action through efforts to answer undertakings and had not abandoned the claim.

The defendants’ evidence of prejudice, including alleged fading memories, was found to be vague and insufficient to outweigh the interests of justice in determining the matter on its merits.

The registrar’s dismissal order was therefore set aside and the action permitted to proceed subject to an expedited timetable.

Supplementary reasons addressing an outstanding refusal arising from an examination for discovery in a civil action involving a leased vehicle.

The disputed question asked how profit was calculated by the dealership on a leased vehicle.

The court held that while the exact profit earned by the dealership was not directly relevant, the method of calculating profit was relevant to issues concerning ownership, control of the vehicle, and the financial relationships among the dealer, financing company, and manufacturer.

Given the surrounding evidence about the assignment of the lease and payments made, the answer was necessary to understand prior discovery evidence and documents produced.

The witness was therefore required to answer the question regarding how profit is calculated.