Derek Victor Abreu

The defendant moved for summary judgment to dismiss a medical negligence claim, arguing it was brought outside the two-year limitation period.

The plaintiff contended that the claim was not discovered until an expert medical opinion was obtained.

The court found that the plaintiff had actual knowledge of the material facts supporting a plausible inference of liability as early as mid-February 2013, and no later than October 2013, well before the claim was issued in August 2017.

The expert opinion merely addressed the merits, not the discoverability.

The motion was granted, and the claims were dismissed.

An appeal by Royal Sun Alliance Insurance Company of Canada (RSA) from a trial judge's decision that RSA was responsible to provide insurance coverage to the estate of Steven Devecseri, who was killed in a motorcycle accident in 2006.

Devecseri had alcohol in his system at the time of the accident, which breached both his M2 driver's licence restrictions and his insurance policy terms.

RSA did not learn of the alcohol consumption until 2009 during discovery proceedings, at which point it took an off-coverage position.

The trial judge found that RSA waived its right to deny coverage by failing to obtain the coroner's report in 2006 and by defending the claim without taking a reservation of rights.

The Court of Appeal reversed, holding that RSA did not waive coverage and was not estopped from denying coverage because it lacked actual knowledge of the policy breach until 2009.

The appellant sued for damages relating to property flooding and brought a motion to extend the time to set the matter down for trial beyond its fifth anniversary.

The motion judge dismissed the action for delay under Rule 48.14(7)(a), finding the appellant had not reasonably explained the delay.

The appellant appealed, arguing the motion judge applied an overly stringent test, misapprehended evidence, and failed to consider the pending summary judgment motion and consent of other defendants.

The Court of Appeal dismissed the appeal, finding the motion judge correctly articulated and applied the legal test and his decision was amply grounded in the record.

The plaintiff sought to deny costs to the successful defendants following a dismissed motion regarding civil jury challenges for cause.

The plaintiff argued the motion was a test case, raised novel issues, and involved public interest litigation.

The court rejected the public interest and test case arguments, noting the plaintiff had a direct pecuniary interest in the personal injury action.

However, recognizing the technical novelty of the motion, the court applied a 15% reduction to the defendants' partial indemnity costs, awarding $19,918.36 to two defendants and $7,853.24 to another.

The applicant, Wawanesa, withdrew its application for a declaration of coverage and duty to defend, leading to a costs dispute.

The respondent, Dominion, sought costs for work incurred.

The court, exercising its discretion under the Courts of Justice Act and Rule 57.01, found that costs should follow the event, as Wawanesa abandoned its application.

Despite Dominion's excessive costs claim, the court fixed costs at $10,000 plus HST and disbursements, deeming it a fair and reasonable amount for the unsuccessful applicant to pay.

The plaintiff in a motor vehicle accident case brought a motion to exclude potential jurors who pay auto insurance premiums, arguing they have an inherent conflict of interest.

The plaintiff sought to introduce survey evidence suggesting residents would limit damages to lower their premiums.

The court excluded the survey evidence as inadmissible hearsay that failed the threshold test for expert evidence.

The court dismissed the motion, finding no statutory basis in the Juries Act to exclude such jurors or permit a broad challenge for cause, and no evidence of widespread bias to justify striking the jury notice.

The appellants commenced a motor vehicle accident action in December 2010 following a collision in December 2008.

The action was administratively dismissed as abandoned in August 2011 pursuant to rule 48.15 of the Rules of Civil Procedure.

The appellants moved to set aside the dismissal in February 2014, more than two years after the dismissal order.

A master granted the motion to set aside, but the Superior Court judge allowed the respondents' appeal and reinstated the dismissal.

The appellants appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal, finding that the master erred in considering the repeal of rule 48.15 as part of the contextual analysis, erred in assigning fault to the respondents for not filing a defence, erred in finding that the appellants always intended to prosecute the action without evidence to support this finding, and critically erred in failing to consider the finality principle in assessing prejudice to the respondents.

The third party insurer, CAA, brought a motion for summary judgment to determine if the defendant driver, Jeffrey Sorto Torres, was in possession of his father's (Victor Sorto Rivera) vehicle with or without consent at the time of a motor vehicle accident.

The determination would affect Victor's vicarious liability under the Highway Traffic Act and Wawanesa Mutual Insurance Company's uninsured motorist coverage.

The court found that Victor had given implied consent for Jeffrey to possess the vehicle, primarily due to Jeffrey being left in charge of the household and his autistic brother, and the accessibility of car keys.

Consequently, CAA's motion for summary judgment to dismiss the action against Victor Rivera was dismissed.

The appellants appealed a Master's decision that had set aside an administrative dismissal of a personal injury action.

The action was dismissed in 2011 due to the plaintiffs' counsel's delay, and the motion to set aside the dismissal was not brought for 2.5 years.

The Superior Court found that the Master erred in law by misinterpreting the statutory context of Rule 48.15 repeal, incorrectly assigning blame to the defendants for not filing a defence, and failing to adequately consider the finality principle and the growing presumption of prejudice over time.

The court re-evaluated the Reid factors, concluding that the plaintiffs failed to provide a satisfactory explanation for the delay, did not demonstrate inadvertence, and did not move promptly.

Furthermore, actual prejudice to the defendants and intervenor was established.

The appeal was allowed, and the administrative dismissal was reinstated.

The appellant, an auto glass repair company, appealed a summary judgment dismissing its action against the respondent insurer for breach of contract and intentional interference with economic interests.

The appellant claimed it had obtained assignments from insureds to receive direct payments for windshield repairs at a market rate of $100, but the insurer only paid $50 per repair.

The Court of Appeal upheld the motion judge's finding that individual contracts were formed between the repair company and the insurer for each repair at the specified $50 rate, and that the purported assignments were ineffective because the insureds had paid nothing and had no claim against the insurer to assign.

The appeal was dismissed.

The appellant, an Ontario-based multi-national enterprise, appealed a motion judge's finding that Ontario law governed its contract with the respondent, an Alberta corporation.

The contract, which lacked a choice of law clause, was for the design and sale of a fryer and oven system that allegedly caused a fire at the respondent's plant.

The Court of Appeal upheld the motion judge's application of the 'closest and most real connection' test, agreeing that the nature, subject matter, and place of performance of the contract favoured Ontario, as the system was designed and its components ordered there.

The appeal was dismissed.

On cross-motions for summary judgment and summary dismissal, the court rejected a windshield repair company's claim for additional payment beyond the specific amounts authorized by an insurer for thousands of repairs.

The court held that each repair was governed by a separate contract formed when the insurer authorized the work at a stipulated rate and the plaintiff performed it without renegotiation.

The purported assignment language in the work order did not assign the insurance policy, and the insureds had no enforceable monetary claim to assign where the repairs had been completed at no cost to them.

The plaintiff's reliance on an asserted market rate was irrelevant, and the action was summarily dismissed.

In a costs decision following an unsuccessful summary judgment motion in a catastrophic personal injury action, the court declined to reserve costs to the trial judge.

Applying the usual principle that costs follow the cause and the discretionary factors under Rule 57, the court held there was no divided success and no basis to depart from the ordinary rule.

The moving defendant was ordered to pay partial indemnity costs to both responding parties, with modest reductions to claimed time and an additional amount for the cost-fixing submissions.

The defendants appealed a master's order reinstating an action that had been administratively dismissed for delay for a second time after the plaintiff's counsel missed the deadline to set the matter down for trial.

The appeal challenged the master's finding that the missed deadline resulted from inadvertence and argued that a stricter test should apply following a second dismissal.

The court held that the governing four‑factor contextual test for setting aside a dismissal for delay, articulated by the Court of Appeal, does not change simply because the dismissal occurred a second time.

While a court should expect some articulated explanation for the missed deadline, a minimal explanation may suffice in context.

The master's discretionary decision to reinstate the action was entitled to deference and disclosed no reversible error.

Following settlement of a negligence action concerning damage at a nuclear generating station, the defendant brought a third party claim against its lawyers alleging professional negligence in drafting and advising on contractual arrangements and settlement strategy.

The lawyers in turn issued a fourth party claim against the original defendants and the plaintiff seeking contribution and indemnity under the Negligence Act.

The court held that the third party claim limited recovery to the lawyers’ proportionate degree of fault, meaning they could never be liable for damages attributable to others.

Because contribution rights arise only where a party may be required to pay more than its proportionate share of the plaintiff’s damages, the fourth party claim disclosed no reasonable cause of action.

The claim was struck under rule 21.01(1)(b) of the Rules of Civil Procedure.

The municipal defendant sought leave to appeal a motion judge’s refusal to grant summary judgment dismissing a negligence claim as statute‑barred under s. 44(8)(b) of the Municipal Act, 2001.

The underlying action arose from a motor vehicle collision in which the plaintiff’s vehicle struck a pole located on a median.

The moving party argued the undisputed facts permitted determination of the statutory bar on summary judgment.

The court held there was good reason to doubt the correctness of the motion judge’s decision and that the proposed appeal raised issues of importance concerning interpretation of the statutory immunity provision and the proper use of summary judgment.

Leave to appeal was granted.

The plaintiff school board sued the appellant and his son after the son allegedly set fire to a school.

The claim against the appellant was for negligent supervision.

The appellant's homeowner's insurer refused to defend him, relying on an exclusion clause for bodily injury or property damage caused by any intentional or criminal act or failure to act.

The motion judge held the insurer had no duty to defend.

The Court of Appeal allowed the appeal, finding that the exclusion clause only applies to intentional or criminal failures to act, and that the negligence claim against the appellant was not derivative of the son's intentional tort.

The defendant municipality brought a motion for summary judgment to dismiss the plaintiffs' negligence claim arising from a motor vehicle collision.

The plaintiff's vehicle was struck by another driver who ran a red light, causing the plaintiff's vehicle to collide with a rigid traffic signal pole on a raised median, resulting in severe brain injuries.

The plaintiffs alleged the municipality was negligent for failing to install a breakaway pole.

The court dismissed the motion, finding genuine issues requiring a trial regarding liability, causation, and whether the claim was statute-barred under s. 44(8) of the Municipal Act, 2001, as the full appreciation test could not be met on the motion record.

Two insurers, Wawanesa and Lombard, appealed preliminary arbitration decisions regarding a priority dispute over accident benefits.

Wawanesa, the first insurer to receive the application, deflected it to Lombard.

Lombard paid benefits but later disputed priority without providing the required 90-day notice.

The arbitrator ruled that Wawanesa's breach of the regulation prevented it from relying on Lombard's failure to give notice, but also ruled that Wawanesa was not permanently precluded from disputing priority.

The applications judge upheld both decisions.

The Court of Appeal dismissed both appeals, finding no error in the reasoning below.

The appellants appealed an order of the Superior Court of Justice.

The Court of Appeal found no error in the motion judge's conclusion and dismissed the appeal, awarding costs of $7,000 to the respondent.