Frank A. Benedetto

This is an appeal from a trial judgment that found a third party, Dennis G. K. Chu, 50% responsible for injuries sustained by Tate Moran in a motor vehicle accident, requiring him to indemnify Ottavio Fabrizi for a settlement.

The trial judge determined that Chu's intentional tortious conduct (road rage) was a "but for" cause of Fabrizi running a red light and colliding with another vehicle.

Chu appealed, arguing errors in the application of the causation test, the failure to consider Fabrizi's negligence as an intervening act, and the misapplication of the "agony of the moment" doctrine.

The Court of Appeal dismissed the appeal, affirming that contribution and indemnity under the Negligence Act can apply where one tort is intentional and the other negligent.

The court upheld the trial judge's "but for" causation finding and clarified that the "agony of the moment" doctrine is a defence to the standard of care, not a causation issue, and is not available to the party who created the emergency.

The applicant sought court approval for an accident benefit settlement.

The court previously identified deficiencies and concerns regarding the allocation of settlement funds, legal fees, and a solicitor's loan.

Following a capacity assessment report indicating the applicant was not mentally incapable, the court noted that judicial approval was not required.

The court requested an explanation from the applicant's counsel regarding a prior representation to the Licence Appeal Tribunal that a court order had appointed a litigation guardian, and a copy of any such order, before considering dismissing the application without costs.

The court denied approval of a settlement for a party under disability due to significant deficiencies in the motion material.

These deficiencies included insufficient medical evidence to assess the injured party's present and future needs, lack of full disclosure regarding a companion tort action and any settlement offers therein, and inadequate details for the proposed allocation of settlement funds.

Furthermore, the court found insufficient information regarding a loan from counsel to the applicant and the fairness and reasonableness of the contingency fee agreement, which appeared to conflate tort and accident benefits claims.

The court also dismissed the request to seal the court record, emphasizing the high bar for such an extraordinary order.

The matter was to be re-submitted after the identified deficiencies were addressed.