Hermina Nuric

The plaintiff, Stephanie Gilbraith, suffered a severe eye injury from an egg thrown from a speeding, unidentified vehicle.

She sought coverage under her father's OPCF 44R Family Protection Coverage endorsement with Intact Insurance Company and from the Superintendent of Financial Services for uninsured automobile coverage.

Both defendants moved for summary judgment, arguing the injury did not "arise directly or indirectly from the use or operation of an automobile." The court dismissed the motions, finding that the plaintiff met both the "purpose test" (transporting passengers and cargo is an ordinary use of a vehicle) and the "modified causation test" (the vehicle's speed significantly increased the egg's impact and the likelihood of severe injury, establishing an unbroken chain of causation).

The court concluded there was a genuine issue for trial.

The appellant appealed the dismissal of a personal injury action for delay.

The action arose from an accident in 2002, was issued in 2004 and served late.

At the time of the appeal decision, 14 years had passed since the action commenced and nearly 17 years since the accident.

The motion judge found the plaintiff responsible for the overall delay.

The Court of Appeal upheld the dismissal, finding the delay inordinate and inexcusable, with prejudice presumed from the length of delay and clear evidence of actual prejudice present.

The defendant insurer brought a motion for summary judgment seeking dismissal of portions of the plaintiff’s claim relating to non-earner accident benefits, breach of contract, and extra-contractual claims including mental distress, bad faith, and punitive damages.

The insurer argued that the plaintiff had not submitted a valid application for non-earner benefits because disability certificates did not confirm that the statutory disability test was met.

The court rejected this argument as an overly literal interpretation of the application requirements, finding that the meaning of the physician’s responses and the effect of mediation could not be resolved on the motion and required a trial.

However, the court granted summary judgment dismissing the extra-contractual claims, finding no evidence of malfeasance or bad faith in the insurer’s claims handling.

The motion therefore succeeded in part.