Eric Boschetti

This decision addresses a threshold motion brought by the defendants in a motor vehicle accident claim.

The plaintiff, Barry O'Brien, sought damages for injuries sustained, including a pilon fracture of his left ankle, depression, PTSD, and an exacerbation of low back symptoms.

A jury had previously awarded general damages and past loss of income but no future loss of income.

The defendants argued that the plaintiff's injuries did not meet the 'permanent serious impairment' threshold under s. 267.5(5) of the Insurance Act, RSO 1990, c I.8, and Regulation 461/96, thereby barring his claim for non-pecuniary loss.

The court, while considering the jury's verdict, independently assessed the medical and other evidence.

It concluded that the plaintiff's left ankle fracture resulted in a permanent serious impairment of an important physical function related to his employment, substantially interfering with his ability to continue heavy labour, especially considering the future deterioration due to arthritis.

However, the court found that the impairment did not substantially interfere with most of his usual activities of daily living.

Consequently, the defence's threshold motion was dismissed.

During a motor vehicle accident trial, the plaintiffs objected to the admissibility of a defence psychiatrist's evidence, Dr. Robert Hines.

Initially, the objection concerned Rule 53.03, but it was withdrawn based on the *Westerhof* decision.

The court then raised a concern regarding the defence's attempt to both file Dr. Hines' reports under s. 52 of the *Evidence Act* and call him as a witness, which is contrary to established case law (*Ferraro v. Lee*, *Iannarella v. Corbett*).

Despite the defence counsel's prior involvement in *Iannarella* and the court's gatekeeping role, the defence insisted on calling the witness.

The court, exercising its discretion, allowed Dr. Hines to testify but ordered his reports removed from the jury's document brief to mitigate prejudice to the plaintiffs, while reserving the issue of costs for later consideration.

The applicant, having successfully obtained a declaration that the respondent insurer had a duty to defend, sought costs of the application on a substantial indemnity basis.

The applicant argued that the respondent's position was contrary to established law and that the respondent caused undue delay.

The court found that while there were some delays, they did not warrant substantial indemnity costs.

Costs were awarded to the applicant on a partial indemnity scale in the amount of $18,000 inclusive of disbursements and HST.

The applicant construction contractor sought a declaration that an insurer owed it a duty to defend as an additional insured under a project‑specific commercial general liability policy issued to a subcontractor.

The underlying action involved a pedestrian trip‑and‑fall allegedly caused by a sunken paver installed during a streetcar island construction project.

The insurer argued the policy only applied to liability arising from the subcontractor’s operations and that the pleadings did not allege such liability.

The court held that the pleadings contained undifferentiated negligence allegations against all defendants and could potentially attribute liability to the subcontractor’s work.

Applying established duty‑to‑defend principles, the court found that any ambiguity must be resolved in favour of the insured and concluded the insurer had a duty to defend.