Dwain Carlton Burns

The plaintiffs sought summary judgment for a declaration that Economical Insurance held a valid and enforceable policy for a vehicle involved in a motor vehicle accident that caused catastrophic injuries to one of the plaintiffs.

Economical brought a cross-motion for a declaration that any claim regarding the accident was invalid and the right of recovery forfeited, citing the insured's failure to disclose material changes in risk, including the driver's G2 license status, a license suspension, and exclusive possession of the vehicle.

The court found that significant credibility issues regarding the driver's residency and vehicle use precluded a determination by summary judgment.

Instead of dismissing the motions, the court directed a "mini-trial" under Rule 20.04(2.2) to resolve these specific factual disputes.

The applicant requested a reconsideration of a Tribunal decision that found he did not meet the requirements for catastrophic impairment under Criterion 8 of the Statutory Accident Benefits Schedule.

The applicant argued the Tribunal failed to properly adjudicate the evidence, relied too heavily on expert reports, and failed to consider his impairments on a biopsychosocial basis.

The Tribunal dismissed the request, finding no error of law or fact.

The Tribunal held that it had properly weighed the evidence, including the applicant's own expert who found only a moderate impairment in concentration, persistence, and pace, and that the reconsideration process is not an opportunity to reweigh evidence.

The applicant, who suffered severe physical injuries in a motorcycle accident, sought a catastrophic impairment designation under Criterion 8 of the Statutory Accident Benefits Schedule based on mental and behavioural disorders.

The Licence Appeal Tribunal found that the applicant failed to demonstrate a marked impairment in three of four functional domains or an extreme impairment in one domain.

The Tribunal gave limited weight to the applicant's psychiatric expert due to conclusory analysis and reliance on outdated occupational therapy reports, preferring the respondent's occupational therapy assessment and surveillance evidence showing the applicant retained useful functioning.

As the applicant was not catastrophically impaired and had exhausted his standard medical and rehabilitation limits, his claims for an occupational therapy treatment plan and an award for unreasonable delay were dismissed.

The defendant brought a motion to adjourn a pre-trial conference to allow for defence medical assessments.

The plaintiff had served new and supplementary medical reports late, making it difficult for the defendant to comply with the 90-day expert report deadline before the scheduled pre-trial.

The court granted the adjournment, emphasizing the importance of trial fairness and the defendant's right to adequately respond to the plaintiff's medical evidence, noting that the plaintiff's delay contributed to the need for the adjournment.

The applicant sought non-earner benefits, cost of examinations, interest, and a special award following a 2015 motor vehicle accident.

The Licence Appeal Tribunal dismissed the application, finding that the applicant's physical limitations and depression pre-dated the accident and were not caused by it.

Consequently, the applicant did not suffer a complete inability to carry on a normal life as a result of the accident.

The claims for the cost of multidisciplinary assessments, interest, and an award for unreasonable delay were also dismissed.

Following the dismissal of the defendants' motion to set aside a noting in default and default judgment, the court determined the costs payable to the plaintiffs.

The court noted the defendants' unreasonable litigation behaviour, including relitigating past issues and making baseless allegations.

The court awarded costs to the plaintiffs on a substantial indemnity basis, fixed at $13,500 inclusive of disbursements and HST.

The defendants moved to set aside a noting of default and default judgment, which had been granted after years of "bad litigation behaviour" and failure to comply with court orders, including payment of costs.

The original claim involved the defendant Rose Venneri Donatelli misrepresenting herself as a qualified psychologist with a Ph.D. The court applied the Healey factors for setting aside default judgments, finding the default intentional, the motion untimely (2.5 years after judgment), and no arguable defense on the merits.

The court emphasized that allowing the defendants to continue would be an affront to the integrity of the administration of justice, given their repeated non-compliance and the fact that the underlying judgment had been upheld through multiple appeals.

The motion was denied.

The plaintiff was injured in a motorcycle accident caused in part by an unidentified driver.

He failed to report the accident to the police or his insurer within the time limits prescribed by the Uninsured Automobile Coverage regulation.

The trial judge granted the plaintiff relief from forfeiture under s. 129 of the Insurance Act and apportioned liability 60% to the plaintiff and 40% to the unidentified driver.

The insurer appealed the relief from forfeiture and the liability apportionment, while the plaintiff cross-appealed the liability apportionment.

The Court of Appeal dismissed both the appeal and cross-appeal, holding that failure to give timely notice constitutes imperfect compliance for which relief from forfeiture is available, and that the trial judge's liability findings were supported by the evidence.

Following the dismissal of the appellants' appeal regarding insurance coverage for stolen marijuana plants, the respondent insurer sought costs.

The court awarded the respondent partial indemnity costs, noting that while the respondent was entirely successful, the legal issues were novel and there was no guiding precedent.

Costs were fixed at $6,000 inclusive of HST and disbursements, reflecting a modest allowance for junior counsel.

The appellants appealed the dismissal of their action against their homeowners' insurance provider for the theft of medical marijuana plants from their backyard.

The insurer had paid out a limited amount under the 'landscaping' extension but denied full coverage under the 'personal property' provision.

The Divisional Court dismissed the appeal, finding that while the stolen plants became personal property upon being detached from the ground, they were not 'usual to the ownership or maintenance of a dwelling' as required by the policy.

The appellant sought to appeal an order dismissing its motion for summary judgment to the Court of Appeal, arguing that a finding of law in the motion judge's reasons regarding relief from forfeiture constituted a final order.

The Court of Appeal held that the order was interlocutory and that, following recent jurisprudence, an order must contain any finding of law intended to be final to confer jurisdiction on the court.

The court concluded the order was not final and dismissed the appeal for lack of jurisdiction.

The appellant insurer appealed the trial judge's findings that the respondent qualified for non-earner benefits following a motor vehicle accident and that the benefits were payable for four years.

The respondent cross-appealed, claiming ongoing entitlement.

The Court of Appeal upheld the finding of entitlement, noting that post-accident employment does not disqualify a claimant but serves as a point of comparison under the Heath test.

However, the Court allowed the appeal regarding the duration of benefits, reducing the payment period to approximately two years and three months based on medical assessments showing significant improvement.

The defendant insurer brought a Rule 21 motion seeking determination of a question of law regarding the interpretation of a homeowner’s insurance policy after thefts of medical marijuana plants grown by the insured.

The plaintiffs sought summary judgment on liability and argued the plants were covered as personal property under the policy’s general contents coverage.

The court held that the specific policy provision addressing “trees, shrubs and plants” governed and limited recovery to $1,000 per plant.

The court rejected the argument that the plants fell under the broader contents provision and also found that the grow‑operation exclusion did not apply to the theft of the plants themselves.

As the insurer had already paid the maximum amount permitted under the policy, the plaintiffs’ additional claims were dismissed.

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

The Court of Appeal found no reversible error in the motion judge's exercise of discretion and dismissed the appeal, awarding costs of $5,000 to the respondents.

The defendants appealed an interlocutory order requiring them to post $100,000 in security for costs or have their Statement of Defence and Counterclaim struck.

The primary issue was whether Rule 56.01(1)(c) conflicts with section 12 of the Libel and Slander Act.

The Divisional Court found no conflict, as the rule and the statute rely on different criteria.

However, the court varied the order, holding that a party should not be required to post security merely to defend itself.

The order was amended so that only the defendants' counterclaim would be struck if security was not posted.

Following the dismissal of her application for statutory accident benefits, the applicant sought her expenses for the arbitration proceeding, arguing that her case raised a novel issue.

The arbitrator found that the issue was not novel, as it was substantially similar to numerous other cases involving assaults in a motor vehicle.

Given that the insurer was completely successful and the issue was not novel, the applicant was not entitled to her expenses.

The insurer did not pursue a claim for its expenses.

The applicant's husband, a taxi driver, was assaulted and murdered in his cab.

The applicant sought death and funeral benefits from the insurer.

The insurer denied the claim on the basis that the death was not the result of an 'accident' as defined in the Statutory Accident Benefits Schedule.

The arbitrator found that the assault was an intervening act and the use of the taxi did not amount to a direct cause of death.

The application for arbitration was dismissed.

The applicant sought statutory accident benefits following a motor vehicle accident.

The insurer terminated benefits and sought repayment, alleging willful misrepresentation of pre-accident and post-accident income.

The applicant failed to attend the hearing.

The arbitrator removed the applicant's counsel from the record due to a breakdown in the solicitor-client relationship.

The application for benefits was dismissed.

Based on surveillance evidence and witness testimony, the arbitrator found the applicant willfully misrepresented his income and ordered him to repay $39,122.44 in income replacement benefits, plus interest, and $1,846 in arbitration expenses.

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

A preliminary issue hearing was held to determine whether the applicant had the mental capacity to proceed in the dispute resolution process under Rule 10.3(a) of the Dispute Resolution Practice Code.

The arbitrator reviewed medical evidence and observed the applicant's participation in teleconferences, concluding that there was insufficient evidence to rebut the presumption of capacity.

The arbitrator found that the applicant had the mental capacity to proceed.

The appellant was injured in a motor vehicle accident and received income replacement benefits.

The insurer terminated benefits, arguing the appellant's ongoing disability was due to a pre-existing schizoaffective disorder rather than the accident.

The arbitrator agreed, finding the accident's material contribution to the disability ended by August 2001, and dismissed claims for various assessment expenses.

On appeal, the Director's Delegate upheld the arbitrator's decisions, finding no error of law in the arbitrator's evaluation of the medical evidence, the impact of the appellant's pre-existing condition, or the rejection of assessment expenses.