Ian F. Leach

Following the dismissal of 42 consolidated motions for leave to appeal costs awards in 37 class actions, the respondent insurers sought costs totalling $345,349.36.

The Court of Appeal assessed the bills of costs submitted by various law firms representing the insurers.

Applying the principle that costs must be fair and reasonable rather than a strict mathematical calculation of hours times rates, the Court reduced the amounts claimed, noting that the complexity was procedural rather than legal or factual.

The Court fixed the total costs payable to the insurers at $141,645.26.

The appellants appealed the dismissal of their action on a motion for summary judgment.

The infant appellant suffered from a serious medical condition, which the appellants alleged was caused by a motor vehicle accident involving the mother while she was pregnant.

The Court of Appeal upheld the motion judge's finding that there was no genuine issue for trial regarding causation, as the appellants failed to provide expert medical opinion establishing that the accident probably caused or contributed to the condition.

The appeal was dismissed.

The appellants and the Law Foundation of Ontario sought leave to appeal costs orders made by the case management judge following the dismissal of several proposed class actions against automobile insurers.

The motion judge had awarded costs to the successful insurers, including substantial indemnity costs where the plaintiffs persisted with unsubstantiated allegations of fraud and deceit to overcome limitation periods.

The Court of Appeal dismissed the application for leave to appeal, finding no error in principle in the motion judge's exercise of discretion regarding entitlement or scale of costs.

This insurer priority appeal concerned whether an injured 22-year-old qualified as an insured person under his mother's automobile policy because he was principally dependent on her for care while living with her on bail terms.

The Court of Appeal held that dependency for care under the Statutory Accident Benefits Schedule is not determined by a snapshot at the accident date and that the surety relationship, while relevant, is not determinative.

Applying a reasonableness standard to the arbitrator's mixed fact and law determination, the court found the arbitrator properly assessed the broader relationship and correctly concluded the injured person remained substantially independent.

The appeal was allowed, the arbitrator's decision reinstated, and responsibility for benefits remained with the insurer of the occupied vehicle rather than the mother's insurer.

The appellants appealed a trial judgment awarding the respondent damages for the cost of repairing her coach house, which was damaged by vibrations from the appellants' construction project.

The Court of Appeal upheld the trial judge's findings on liability, concluding that the evidence supported a change in construction methods and causation.

However, the Court reduced the damage award by 10 per cent to account for savings if the appellants had performed the repairs themselves and for pre-existing defects.

The Court also disallowed pre-judgment interest on the damages to prevent over-compensating the respondent, as the damages were assessed based on the cost of repairs at the date of trial.

The insurer appealed from a ruling in an action brought under s. 132(1) of the Insurance Act after the respondents obtained a negligence judgment against the insured and execution was returned unsatisfied.

The Court of Appeal held that the statutory cause of action permits recovery of the amount of the judgment, up to the face value of the policy, subject only to the same equities the insurer would have against its insured.

The insurer could not relitigate the insured's liability or the respondents' damages, nor could it allege that the original judgment was vitiated by the respondents' own fraud.

The appeal was dismissed with costs.