James Dunn

Kin Canada and The Kinsmen Club of Oshawa (Applicants) brought an application seeking a declaration that their insurers, Ecclesiastical Insurance Office Public Company Limited and Certain Non-Marine Underwriters o/a Lloyd’s Of London and Lloyd’s Canada (Respondents), had a duty to defend them in an underlying lawsuit.

The underlying claim involved damages related to the discovery of underground oil storage tanks (USTs) on a property sold by The Kinsmen Club of Oshawa in 2005, with allegations of negligent misrepresentation and mismanagement, and vicarious liability against Kin Canada.

The court found that the pollution exclusion clauses in both insurance policies applied, as the true nature of the underlying claim was environmental pollution arising from leaking USTs and the failure to comply with regulatory requirements for their removal.

Consequently, the court dismissed the application, ruling that the duty to defend did not arise for either insurer.

The plaintiffs sought costs thrown away after a civil jury trial was adjourned due to the defendant's late filing of seven critical expert reports, in contravention of Rule 53.03.

The court found the adjournment was due to the defendant's fault or responsibility, entitling the plaintiffs to costs thrown away.

The court assessed the plaintiffs' bill of costs, applying a 35% discount due to lack of detail and the speculative nature of assessing costs thrown away, and ordered the defendant to pay $17,449.02 inclusive of HST and disbursements within 30 days.

Following a jury trial in a motor vehicle accident action, the defendants brought a threshold motion under s. 267.5(5)(b) of the Insurance Act arguing that the plaintiff had failed to establish a permanent serious impairment of an important physical, mental or psychological function.

The plaintiff presented testimony from himself, family members, and an occupational therapist but called no physician to provide medical evidence.

The court held that Ontario Regulation 461/96 requires evidence from a qualified physician addressing the nature, permanence, and seriousness of the impairment.

Lay testimony may only corroborate, not replace, the required medical evidence.

Because no physician’s evidence was adduced, the statutory threshold was not met and the plaintiff’s claim for non‑pecuniary damages was barred.

The defendants moved for judgment dismissing the plaintiff's personal injury action based on deemed admissions arising from the self-represented plaintiff's failure to respond to a Request to Admit.

The plaintiff, who was struck by the defendants' vehicle while crossing the street, failed to respond because he mistakenly believed opposing counsel would contact him to discuss it.

The court treated the plaintiff's stated disagreement with the admissions as a motion to withdraw them.

Applying the Antipas test, the court found the plaintiff's confusion akin to inadvertence and granted leave to withdraw the admissions regarding liability, allowing the trial to proceed.

The applicant sought to arbitrate a dispute for statutory accident benefits arising from a 1990 motor vehicle accident.

A previous arbitration and appeal had found the applicant statute-barred from proceeding.

Following the Supreme Court of Canada's decision in Smith v. Co-operators, the applicant applied again, arguing the insurer's refusal was invalid and the limitation period had not begun.

The insurer moved to dismiss the application based on res judicata and issue estoppel.

The arbitrator found that the previous decisions did not explicitly determine the sufficiency of the insurer's notice of refusal.

The arbitrator declined to apply res judicata or issue estoppel at this stage, allowing the parties to make further submissions on the application of Smith v. Co-operators and Rule 61 of the Practice Code.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

Costs were awarded on a partial indemnity scale to the respondents and cross-appellants, Father Reed and the Diocese, in the amount of $18,000.

The Phoenix group of insurers and the Ecclesiastical Insurance Office were each awarded costs of $5,549.02.

The plaintiff brought an action against a priest and a diocese for sexual assault.

The parties settled the main action, but a third party action continued regarding insurance coverage.

The trial judge found that the appellant insurer had a duty to defend the claims under its policy.

The insurer appealed, arguing the policy did not cover sexual assaults by an employee.

The Court of Appeal dismissed the appeal, finding the policy language broad enough to cover the claims.

On cross-appeal, the Court upheld the trial judge's allocation of defence costs among the insurers but allowed the cross-appeal regarding costs of the third party proceedings, holding that the insureds were entitled to costs on a solicitor-and-client basis due to the insurer's wrongful denial of the duty to defend.

The appellants were injured in a motor vehicle accident and received weekly income benefits for 156 weeks before the insurer terminated them.

More than two years after the termination, the appellants applied for mediation and subsequently arbitration.

The arbitrator dismissed the arbitration, finding the claims were time-barred.

On appeal, the Director's Delegate upheld the arbitrator's decision, applying binding precedent that the two-year limitation period begins to run upon the insurer's refusal to pay, thereby rejecting the appellants' 'rolling time limit' argument.

The appellant was injured in a motor vehicle accident and claimed weekly income benefits under s. 12(1) of the Statutory Accident Benefits Schedule, arguing she was substantially unable to perform the essential tasks of her family meat business.

The arbitrator dismissed the claim, finding the appellant was not disabled from her work and questioning the credibility of her evidence.

On appeal, the appellant sought to re-argue the facts and alternatively claim caregiver benefits under s. 13.

The Director's Delegate dismissed the appeal, holding that an appeal is not a re-hearing of the facts, the arbitrator made no palpable error in assessing credibility, and the appellant could not change the parameters of her claim to s. 13 on appeal.

The arbitrator's decision limiting chauffeur expenses to minimum wage was also upheld due to lack of proof of lost income.

The appellant was injured in a motor vehicle accident and received weekly income benefits of $600 based on reported pre-accident income.

The insurer later reduced benefits, alleging the income information was false and seeking repayment of an overpayment.

At arbitration, the arbitrator found the appellant and his witnesses lied about his employment and ordered repayment.

On appeal, the Director's Delegate found the arbitrator failed to adequately explain the finding of fraud, particularly given the existence of tax documents supporting the income.

The appeal was allowed in part, and a new hearing was ordered to determine the proper amount of benefits and any overpayment.

The applicant sought payment of GST on his lawyer's fees and disbursements, as well as compound interest on those expenses, following a successful arbitration for statutory accident benefits.

The arbitrator held that GST is a legitimate out-of-pocket expense incurred in furtherance of the arbitration and is therefore recoverable.

However, the arbitrator found that interest on the expenses should be calculated on a simple, rather than compound, basis, as the relevant provision of the Statutory Accident Benefits Schedule did not explicitly direct compounding.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, including weekly income benefits, transportation expenses, and chauffeur/companion expenses for her husband.

The arbitrator found that the applicant, who worked in her husband's family business, did not suffer a substantial inability to perform the essential tasks of her employment and denied the weekly income benefits.

The claim for an increased transportation allowance was dismissed for lack of proof.

However, the arbitrator allowed the claim for chauffeur/companion expenses for out-of-town medical appointments, awarding 108 hours at the minimum wage rate.

The applicant was injured in a motor vehicle accident and received statutory accident benefits.

The insurer terminated his weekly income benefits three years post-accident.

The applicant sought further benefits under section 12(5)(b) of the Schedule, claiming he required extensive retraining due to his physical limitations.

The insurer argued the applicant was magnifying his disability and could return to his previous work as a brick mason.

The arbitrator found that the applicant's realistic work tolerances fell below the medium to heavy range required for his pre-accident job, but that his rehabilitation efforts and improved English skills opened new employment opportunities.

The arbitrator ordered the insurer to pay weekly income benefits from the date of termination until the conclusion of a pre-examination community college course the applicant had started.

The applicant was injured in a motor vehicle accident in January 1991 and received weekly income benefits until January 1994.

She applied for arbitration to reinstate her benefits, claiming ongoing disability from headaches, neck pain, and psychological issues.

The arbitrator found that while the applicant had ongoing symptoms, surveillance video and an independent medical examination demonstrated she had a significantly higher level of function than claimed.

The arbitrator concluded that unrelated stressors, rather than the minor accident, were the significant contributing factors to any ongoing disability after August 1994.

The applicant was awarded weekly income benefits from January 16, 1994, to August 19, 1994.

The arbitrator declined to rule on the insurer's request to deduct Canada Pension Plan disability benefits, finding the issue of the benefit rate was not properly before the tribunal.

The applicant was injured in a motor vehicle accident and received weekly income benefits for 156 weeks.

The insurer terminated benefits thereafter.

The applicant sought ongoing weekly income benefits under section 12(5)(b) of the Statutory Accident Benefits Schedule, as well as rehabilitation and occupational training.

The arbitrator found that the applicant's physical restrictions prevented him from engaging in any occupation for which he was reasonably suited by education, training, or experience, and ordered ongoing weekly income benefits.

The arbitrator also ordered the insurer to pay for a comprehensive vocational rehabilitation assessment.

Finding that the insurer acted unreasonably in terminating benefits despite medical and functional capacity reports supporting the applicant's disability, the arbitrator ordered a special award of 35% of the outstanding weekly income benefits.

The applicant was injured in a motorcycle accident and received statutory accident benefits until the insurer terminated his weekly income benefits after 156 weeks.

The applicant applied for arbitration, claiming ongoing entitlement to weekly income benefits, additional medical and rehabilitation expenses, and a special award for unreasonable delay.

The arbitrator found that the applicant's physical and psychological limitations continuously prevented him from engaging in any suitable employment, entitling him to ongoing weekly income benefits.

The arbitrator also awarded costs for an adjustable bed and necessary child care, but denied claims for a whirlpool, scooter, and other items.

The claim for a special award was dismissed as the insurer's delays were largely attributable to the applicant's own conduct and unreasonable demands.

The applicant was involved in two motor vehicle accidents in October 1990 and received weekly income benefits until April 1991.

He applied for arbitration after the insurer terminated his benefits, claiming he remained substantially unable to perform the essential tasks of his pre-accident employment as a security guard due to chronic pain.

The arbitrator found that the applicant's job was not physically demanding and that the medical evidence, including surveillance video, did not support a finding of substantial inability to work.

The claim for ongoing weekly income benefits was dismissed, but the applicant was awarded his arbitration expenses.

The applicant, a high school student who worked part-time and intended to work full-time over the summer, was injured in a motor vehicle accident.

She received weekly income benefits until January 1991 but claimed ongoing entitlement until August 1991, arguing that her injuries prevented her from working while attending school.

The arbitrator found that while the applicant continued to experience pain and headaches, her injuries did not cause a substantial inability to perform the essential tasks of her sedentary clerical employment, especially given her successful completion of high school and university courses during the same period.

The claim for ongoing weekly income benefits was dismissed.

However, the insurer was ordered to pay $250 for a medical report that was instrumental in resolving a dispute over the continuation of the applicant's physiotherapy treatments.