Douglas A. Wallace

The appellant, who suffered a catastrophic brain injury in a 1999 motor vehicle accident, appealed and sought judicial review of a Licence Appeal Tribunal decision regarding his entitlement to attendant care benefits.

The LAT had awarded a minimal monthly amount, focusing on the care actually provided by his family rather than his need for supervisory care due to his inability to respond to emergencies.

The Divisional Court allowed the appeal and granted the judicial review, finding that the adjudicator erred in law by failing to apply the correct legal test under the 1996 SABS and that the decision was unreasonable.

The matter was remitted for a new hearing before a different adjudicator.

The applicant was injured when a wall from a prefabricated modular building fell on her while being loaded onto a trailer by a mobile crane.

She sought statutory accident benefits from the respondent, who insured the mobile crane.

The respondent denied the claim, arguing the crane was excluded from coverage by an OPCF-30 endorsement and was covered under a separate commercial general liability policy.

The Tribunal found that although an executed OPCF-30 was not produced, the uncontested evidence demonstrated the parties agreed to amend the contract to exclude the mobile crane from coverage when used as a crane.

Consequently, the applicant was not involved in an 'accident' under the Schedule, and the application was dismissed.

The applicants sought a declaration that the respondent insurer owed a duty to defend the applicant business owner in three underlying actions arising from a fire.

The fire allegedly started when the business owner used an insured truck to boost a forklift.

The respondent argued that boosting a forklift was not an ordinary use or operation of a motor vehicle.

The court applied the test for duty to defend and the test for use or operation of a motor vehicle, finding that using a truck to boost another vehicle is an ordinary and well-known activity to which motor vehicles are put.

The court declared that the respondent owed a duty to defend and ordered it to pay a one-half share of past and ongoing defence costs.

This is an appeal concerning an insurer's duty to defend.

The appellant, found not criminally responsible for an assault due to a psychotic episode, sought coverage under his homeowner's policy.

The insurer denied coverage based on an exclusion for bodily harm arising from intentional or criminal acts.

The application judge found the negligence claim derivative of an intentional tort and that the exclusion applied.

The Court of Appeal upheld this decision, finding no error in the application judge's conclusion that the true nature of the claim was an intentional act, despite the appellant's mental state, thus affirming the applicability of the exclusion clause.

The applicant insurer appealed an arbitration award determining priority for Statutory Accident Benefits following a motor vehicle accident involving a catastrophically injured child.

The child's parents were separated, and the insurers disputed whether the child was principally dependent on her mother or father at the time of the accident.

The arbitrator found the child was principally dependent on her mother, utilizing a 12-month time frame for the dependency analysis rather than the 5.5-week period immediately preceding the accident when the child briefly resided with her father.

The Superior Court of Justice dismissed the appeal, finding no extricable error of law or palpable and overriding error in the arbitrator's determination of the appropriate time frame or assessment of care dependency.

The applicants, two brothers who suffered severe burns in a garage explosion while replacing a vehicle's fuel pump, sought reconsideration of a decision finding their injuries did not result from an 'accident' under the Statutory Accident Benefits Schedule.

They argued the adjudicator breached procedural fairness by failing to analyze the Causation Test after finding the Purpose Test was not met, and alleged errors of fact and law regarding the vehicle's operability.

The Licence Appeal Tribunal dismissed the reconsideration request, holding there is no requirement to consider the Causation Test if the Purpose Test fails, and finding no errors of fact or law that would have led to a different conclusion.

A pedestrian was catastrophically injured when struck by a vehicle whose owners had applied for automobile insurance.

The insurer issued a one-year policy but subsequently purported to rescind it based on material misrepresentation regarding one owner's driving record, sending a letter stating the coverage was "void from the inception date" approximately two months before the accident.

The injured plaintiff obtained judgment against the at-fault driver and owner but was unable to collect.

The plaintiff then sued the insurer under section 258(1) of the Insurance Act, which permits innocent third parties to recover directly from the at-fault driver's insurer.

The motion judge dismissed the action, finding the insurer had validly rescinded the contract at common law, making it void ab initio.

The Court of Appeal allowed the appeal, holding that an automobile insurer cannot rescind a contract at common law but must comply with the statutory scheme governing termination of automobile insurance contracts.

The appellants, a condominium developer and related entities, appealed a jury verdict awarding damages to the respondents for injuries sustained when an A-frame sign placed on a downtown Toronto sidewalk struck the plaintiff in the face during windy conditions.

The jury found both the developer and the sign contractor liable, apportioning fault 94% to the developer and 6% to the contractor.

The appellants challenged the trial judge's instructions on duty of care, apportionment of liability, and foreseeability.

The Court of Appeal dismissed the appeal, finding no material misdirection warranting intervention.

The cross-appellant's challenge to costs awards was also dismissed.

The plaintiffs obtained a $2 million judgment against an at-fault driver and vehicle owner for a motor vehicle accident.

The plaintiffs then brought an action against the defendant insurer under s. 258(1) of the Insurance Act, arguing the vehicle was insured at the time of the accident.

The defendant insurer argued it had validly rescinded the insurance contract ab initio due to material misrepresentations in the application, two months prior to the accident.

The court held that the Insurance Act does not displace an insurer's common law right to rescind a contract for material misrepresentation.

The court found the insurer validly rescinded the contract before the accident occurred, meaning there was no contract providing indemnity at the time of the loss.

The plaintiffs' action was dismissed.

The plaintiff was injured in a motor vehicle collision and sued her auto insurers under the uninsured automobile coverage.

Her insurers issued a third-party claim against Aviva, alleging that Aviva insured the at-fault vehicle.

Aviva moved for summary judgment, arguing that the vehicle was fraudulently added to its policy after the collision occurred.

The court dismissed the motion, finding that there were genuine issues for trial regarding whether the named insured owned the vehicle at the time of the collision and whether the policy was validly back-dated, noting that a trial was necessary to resolve the complex factual issues surrounding the alleged fraud.

This appeal concerned a priority dispute between insurers over statutory accident benefits payable after a motor vehicle accident, turning on whether the injured claimants were principally dependent for financial support on the named insured at the time of the accident.

The court held that appeals from insurance arbitrations are governed by the administrative law framework, and that the applicable standard of review was reasonableness rather than correctness.

Applying that standard, the court found the arbitrator's decision unreasonable because it imposed an impermissible permanence requirement on a recent relationship, adopted a categorical approach inconsistent with the dependency jurisprudence, and relied on speculation rather than the evidentiary record.

The appeal was dismissed and the respondent insurer remained entitled to have the arbitrator's award set aside.

The appellant was injured in an accident and applied for statutory accident benefits to Unifund, and later to Intact.

Both insurers denied payment.

The arbitrator refused to combine the two arbitrations and set a preliminary issue regarding a coverage exclusion under the Unifund policy.

On appeal, the Director's Delegate found the arbitrator erred in law.

The arbitrations were combined on consent, and the preliminary issue was redefined to apply the 'nexus test' to determine if Unifund, as the first insurer to receive the application, was obliged to commence payment of benefits pending any priority dispute.

Unifund was ordered to pay the appeal costs of both the appellant and Intact.

The defendants in a personal injury action sought an order to compel the plaintiff to attend a defence medical examination.

The plaintiff agreed on the condition that the examination be audio recorded, citing systemic bias among defence medical examiners.

The motion judge and Divisional Court allowed the condition.

On appeal, the Court of Appeal allowed the appeal and ordered the examination to proceed without conditions, holding that an order to record a defence medical requires a specific factual foundation of potential abuse or concern regarding the specific doctor, not merely allegations of general systemic bias.

Following an appeal that increased the appellant's damages award from $236,494.91 to $251,449.46, the award exceeded the respondents' $250,000 offer to settle.

The Court of Appeal held that the ordinary rule for costs should apply.

The court awarded costs to the appellant on a partial indemnity basis, referred those costs for assessment, and awarded $900 for costs submissions at trial.

The appellant was injured when improperly stored metal sheets in her apartment building's storage room fell on her leg, eventually leading to fibromyalgia.

A jury found the respondent landlords negligent but apportioned 75% of the fault to the appellant for contributory negligence.

The jury awarded damages, including $41,000 for non-pecuniary damages.

On appeal, the Court of Appeal found the trial judge erred in instructing the jury to use the upper limit (cap) for non-pecuniary damages as a scale.

The Court substituted an award of $80,000 for non-pecuniary damages but upheld the jury's findings on contributory negligence and apportionment of fault.

The defendants in a personal injury action brought a motion for an extension of time to file a Notice of Cross-Appeal.

The trial judge had instructed the jury on causation using the 'material contribution' test, and the jury found in favour of the plaintiff.

Following a recent Supreme Court of Canada decision clarifying that the 'but for' test is the standard for causation, the defendants sought to cross-appeal.

The Court of Appeal granted the motion, finding that the delay was reasonably explained, the cross-appeal had considerable merit, and the justice of the case favoured allowing the cross-appeal to proceed alongside the plaintiff's appeal.

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

The Insurer denied non-earner benefits, arguing the Applicant was precluded under section 30(1)(a) of the Schedule because he knew or ought reasonably to have known he was operating an uninsured vehicle.

Following a preliminary issue hearing, the Arbitrator ruled that the Applicant was not precluded from receiving non-earner benefits under the exclusion and ordered the matter to proceed to a hearing on the substantive issues.

The appellants alleged they suffered harm due to mislabelled medication and sued the pharmacy.

After the expiry of the one-year limitation period under the Regulated Health Professions Act, they moved to add the dispensing pharmacist and the numbered company operating the pharmacy as defendants.

The motion judge dismissed the motion.

On appeal, the Court of Appeal upheld the dismissal regarding the pharmacist, finding no evidence of due diligence to discover her identity.

However, the Court allowed the appeal regarding the numbered company, holding that it was not a 'health profession corporation' under the Act and was therefore subject to the general six-year limitation period.

The applicant sought an extension of time to claim expenses following an unsuccessful arbitration for statutory accident benefits.

The arbitrator granted the extension, finding the delay was inadvertent and not excessive.

However, the arbitrator dismissed the claim for expenses, rejecting the applicant's argument that the case raised a novel issue.

The arbitrator noted that under the amended O. Reg. 664, a successful party should not be penalized absent misconduct, and thus the unsuccessful applicant was not entitled to expenses.

The applicant's husband was electrocuted while operating a mobile crane on a highway construction site.

The applicant applied for statutory accident benefits, which the insurer denied on the basis that the crane was not an 'automobile'.

The arbitrator applied a two-step test and found that the crane was not an automobile in ordinary parlance.

Furthermore, the crane was excluded from the extended definition of a motor vehicle because it was being used as a 'road-building machine' at the time of the incident.

As the crane was not an automobile, the incident was not an 'accident' under the Schedule, and the claim for benefits was dismissed.