5 total
Diving off a parked pickup truck into a lake is an aberrant use, not an 'accident'.
The respondent became quadriplegic after diving off the tailgate of a parked pickup truck into shallow water.
She applied for statutory accident benefits, and an arbitrator initially found the incident constituted an 'accident' under the SABS.
The insurer appealed.
The Director's Delegate allowed the appeal, applying the Supreme Court's reasoning in Vytlingam to find that using a truck as a diving platform is an aberrant use, not an ordinary and well-known activity to which automobiles are put.
Consequently, the incident did not meet the purpose test and was not an accident, disentitling the respondent to benefits.
Jumping from a parked pick-up truck tailgate into a lake constitutes an accident under the SABS.
The Applicant was rendered a quadriplegic after jumping into a shallow lake from the tailgate of a parked pick-up truck during a late-night social gathering.
She applied for statutory accident benefits, but the Insurer denied the claim, arguing the incident did not meet the definition of an "accident" under the Schedule.
The Arbitrator applied the Amos two-part test and found that using the truck bed for recreational "tailgating" and disembarking from it into the water constituted an ordinary use of the vehicle.
Furthermore, the Arbitrator concluded that disembarking from the truck was a direct cause of the Applicant's injuries with no intervening acts.
The Arbitrator ruled that the incident was an accident and the Applicant was entitled to claim benefits.
Appeal of summary judgment dismissal denied due to overlapping serious tort allegations and ESA process concerns.
The appellants appealed the dismissal of their motion for summary judgment.
They argued that s. 97(2) of the Employment Standards Act barred the respondent's civil action for wrongful dismissal because she had already commenced an ESA complaint.
The Divisional Court upheld the motions judge's decision to decline ruling on the summary judgment motion, noting the respondent's serious allegations of intentional torts, including misrepresentation and fraud affecting the ESA process.
The court found that the evidence required for the tort claims would overlap with the wrongful dismissal claim, making summary judgment inefficient and inappropriate.
The appeal was dismissed.
Summary judgment denied; prior Employment Standards Act complaint does not bar independent intentional tort claims.
The defendants moved for summary judgment to dismiss the plaintiff's wrongful dismissal claim, arguing it was statute-barred under s. 97(2) of the Employment Standards Act because the plaintiff had previously filed an ESA complaint.
The plaintiff, who was terminated for alleged theft of prescriptions, also pleaded intentional torts including negligent misrepresentation and conspiracy.
The court dismissed the motion, finding that the ESA adjudication scheme was not intended to bar independent claims for intentional torts, and the civil action should proceed to trial where the trial judge can determine if the severance claim is barred alongside the independent causes of action.
Costs awarded against insurers after motion to dismiss defendant resolved without hearing.
The moving party sought costs after bringing a motion to dismiss the action against it in a motor vehicle negligence claim.
The plaintiff had initially included the moving party as a defendant due to a potential vicarious liability theory but indicated willingness to discontinue once insurers confirmed that dismissal would not prejudice coverage claims.
The court found the plaintiff acted reasonably and did not prolong the proceedings.
However, the court concluded that one insurer’s delay in consenting contributed to additional procedural steps.
Costs were awarded to the moving party on a partial indemnity basis and apportioned primarily against that insurer.
