Gillian Eckler

This appeal concerned proposed class actions against auto insurers for improperly deducting HST from statutory accident benefits (SABs) and against the Financial Services Commission of Ontario (FSCO) for alleged regulatory failures.

The motion judge had dismissed claims against insurers due to the exclusive jurisdiction of the Licence Appeal Tribunal (LAT) under s. 280 of the Insurance Act, but allowed claims against FSCO to proceed.

The Court of Appeal upheld this decision, confirming the LAT's exclusive jurisdiction over SAB disputes and affirming the court's jurisdiction over tort claims against the regulator.

The court also refused leave to appeal the motion judge's costs order, finding it within his discretion.

Following a jurisdiction motion where the defendant insurers successfully argued that the court lacked jurisdiction over the proposed class actions, the insurers sought costs of approximately $620,000.

The court found this request preposterous and excessive, fixing costs payable by the plaintiffs to the 13 non-settling insurers at $28,000 on a partial indemnity basis.

The costs payable by the government regulator to the plaintiffs were settled at $12,500.

The plaintiffs filed proposed class actions against 15 auto insurers and the provincial regulator, FSCO, alleging improper deduction of HST from statutory accident benefits.

The defendant insurers brought motions to dismiss the actions for lack of jurisdiction, arguing the Licence Appeal Tribunal (LAT) has exclusive jurisdiction over such disputes.

The court agreed, dismissing the actions against the insurers and refusing to approve two early settlements, as the claims fell squarely within the LAT's exclusive jurisdiction under s. 280 of the Insurance Act.

However, the court found it had jurisdiction to hear the claims against FSCO for regulatory negligence, as those allegations did not directly concern benefit entitlements or amounts.

The plaintiffs brought a motion to certify a class action against the Royal Winnipeg Ballet and a former instructor/photographer, Bruce Monk.

The plaintiffs alleged that Monk took intimate photographs of students in private settings and disseminated them without consent, constituting sexual assault, breach of fiduciary duty, and invasion of privacy.

The court found that the pleadings disclosed causes of action, there was an identifiable class, and there were 23 common issues.

The court also found that a class proceeding was the preferable procedure and that the representative plaintiffs were suitable.

The certification motion was granted.

A self-represented plaintiff brought motions to amend her statement of claim, strike a third party claim, and seek personal costs against opposing counsel.

The court allowed the amendments to the statement of claim with modifications, striking portions characterized as scandalous and vexatious and preserving causes of action in nuisance and negligence.

The motion to strike the third party claim against contractors and a municipality was dismissed because consent to its issuance had previously been provided and the presence of the additional parties was necessary for a just determination of the dispute.

Allegations seeking personal costs against defence counsel were unsupported and resulted in a substantial indemnity costs award against the plaintiff.

The defendant also received partial indemnity costs for the motion.

The appellant insurer appealed a trial judgment granting the respondent relief from forfeiture after the insured breached statutory condition 4(1) of the Insurance Act by driving with a suspended licence.

The Court of Appeal allowed the appeal, holding that section 129 of the Insurance Act applies only to matters concerning proof of loss, not coverage.

Furthermore, the court found that even if section 98 of the Courts of Justice Act applied, the insured's conduct in ignoring registered letters from the Ministry of Transportation demonstrated wilful blindness and was incompatible with relief from forfeiture.

The judgment was varied to reduce the payable amount.

The appellant slipped and fell on a grape in the produce department of a grocery store owned by the respondent.

A jury found the respondent had taken reasonable care and dismissed the action.

On appeal, the appellants argued the trial judge erred in instructing the jury on the standard of care and causation, and that the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding the trial judge properly instructed the jury on the standard of reasonableness under the Occupiers' Liability Act, and that there was sufficient evidence of the respondent's floor maintenance program to support the jury's verdict.