Donald G. Cormack

The appellant was injured in a motor vehicle accident and sued the tortfeasors, their insurer, and her own insurer under an OPCF 44R endorsement.

The tortfeasors' insurer took an off-coverage position and settled with the appellant for the $200,000 statutory minimum.

The appellant's insurer successfully moved for summary judgment, arguing the tortfeasors' policy limits were never legally reduced and the release barred the action.

The Court of Appeal allowed the appeal, holding that an insurer's off-coverage position and settlement do not reduce liability limits 'by operation of law' without a legal determination.

However, the appellant's action against her own insurer could proceed, wherein she would bear the burden of proving the tortfeasors' policy breach.

The insured struck a pedestrian in a strip mall parking lot while driving alone, contrary to her G1 licence conditions.

She pleaded guilty to Highway Traffic Act offences.

Her insurer denied coverage, arguing she was not 'authorized by law' to drive under Statutory Condition 4(1).

The Court of Appeal held that the guilty pleas did not create issue estoppel in the civil action due to the minor stakes of the traffic tickets compared to the civil suit.

Furthermore, the parking lot was not a 'highway' under the Highway Traffic Act, meaning the graduated licensing restrictions did not apply at the time of the accident.

The insurer was ordered to defend and indemnify the insured.

The infant plaintiff was severely injured when a fence on the appellant's premises fell on him.

A jury awarded approximately $3 million in damages, apportioning liability 95% to the appellant and 5% to the fence installer.

The appellant appealed the apportionment, arguing the trial judge erred in admitting a statement from a deceased employee of the installer and failing to caution the jury on its use.

The Court of Appeal dismissed the appeal, finding no substantial wrong or miscarriage of justice, as the jury's reasons for liability focused on the appellant's failure to rectify the fence after it had fallen on three prior occasions, without relying on the disputed statement.

The appellant, a motor vehicle lessor, was sued after an accident involving its leased vehicle driven by an excluded driver.

The respondent insurer denied coverage based on an OPCF 28A Excluded Driver Endorsement signed by the lessees.

The insurer had provided the appellant with a certificate of insurance noting the endorsement but failed to deliver a copy of the endorsement itself.

The Court of Appeal held that under section 232(3) of the Insurance Act, an insurer must deliver a copy of every endorsement to the insured.

The insurer's failure to do so precluded it from relying on the endorsement, triggering its duty to defend and indemnify the appellant.

The defendant sought leave to appeal a trial judge's decision not to award him costs after successfully defending a motor vehicle accident claim.

The jury found the defendant liable but awarded only $3,000 in damages, and the trial judge subsequently dismissed the action on a threshold motion.

The trial judge declined to award costs to the successful defendant, citing the plaintiff's difficult circumstances, the complexity of the medical history, and the fact that the plaintiff had established liability and some injury.

The Divisional Court dismissed the application for leave to appeal, finding that the trial judge did not exercise his discretion based on a misapprehension of facts or an erroneous principle of law.

The minor appellant was injured in a motor vehicle accident in Quebec while a resident of Ontario.

The appellants sued the at-fault driver and their own insurer under the uninsured motorist coverage of their Ontario automobile policy.

The motion judge granted summary judgment dismissing the action against the insurer, finding that Quebec's no-fault legislation applied and barred the tort claim.

The Court of Appeal dismissed the appeal, holding that under the lex loci delicti rule, Quebec substantive law applied.

Because Quebec's no-fault regime precluded any tort claim against the driver, the appellants were not 'legally entitled to recover' damages from her, which is a precondition for accessing uninsured motorist coverage under s. 265(1) of the Insurance Act.

The plaintiff suffered permanent vestibular toxicity after being treated with the antibiotic Gentamicin for a severe sinus infection.

At trial, the otolaryngologist was found liable for failing to properly monitor for ototoxicity and failing to emphasize the need for ongoing vigilance regarding symptoms.

The trial judge also granted a non-suit dismissing the action against the home care nurses (VON).

On appeal, the Court of Appeal overturned the finding of liability against the doctor, concluding there was no evidence that the two-to-three-day delay in discontinuing the medication caused the plaintiff's injuries.

The Court also rejected an alternative argument based on lack of informed consent, finding that a reasonable person in the plaintiff's position would have continued the medication.

The appeal against the VON was dismissed as no expert evidence established the standard of care for home care nurses.

The defendants appealed a costs award in a motor vehicle action where the jury awarded the plaintiff $20,000.

The trial judge found that the defendants' offer to settle was unenforceable and that section 267.5(9) of the Insurance Act required the statutory deductible to be ignored when considering the cost consequences of an offer to settle under Rule 49.

The Divisional Court dismissed the appeal because the offer was indeed unenforceable, but clarified that section 267.5(9) does not apply to Rule 49 offers to settle, as doing so would undermine the purpose of the offer to settle rule.

The appellants' properties were damaged by a gas explosion caused by the intentional criminal act (arson) of the defendant David Gordon.

The respondent insurer denied coverage to both David Gordon and his wife, Dora Gordon, under a homeowner's policy exclusion for damage caused by the criminal act of 'any person insured by this policy'.

The appellants opposed the insurer's summary judgment motion to protect their potential rights of recovery.

The Court of Appeal upheld the motions judge's finding that the clear and unambiguous language of the exclusion clause bound the innocent co-insured to the misconduct of her spouse, thereby excluding coverage for both defendants.

On an appeal from a Rule 21 determination in a fatal motor vehicle case, the court held that family members' independent nervous shock claims were barred by s. 266 of the Insurance Act because the claimants themselves did not meet the statutory threshold.

However, the majority held that s. 61(1) of the Family Law Act permits recovery for a family member's pecuniary loss in the form of lost income resulting from the death, and is not confined to loss of expected financial benefits from the deceased.

Because the trial judge later took the opposite view and made no necessary factual findings on causation and loss, the trial judgment was set aside and a new trial ordered on the loss of income claim.

No costs were awarded because success was divided.

Parents appealed from a trial judgment arising out of their son's death in a motor vehicle accident.

The court held that awards under s. 61(2)(e) of the Family Law Act for loss of care, guidance and companionship were low but within range and should not be disturbed.

Applying the deduction analysis under s. 267 of the Insurance Act, the court held that only statutory death benefits, and not no-fault wage-loss or disability benefits, were deductible from those awards because the death benefits were akin to the compensable loss.

The court also held, by reference to the companion appeal, that a loss of income claim under s. 61(1) could proceed and ordered a new trial on that issue.