Jeffrey M.K. Garrett

An appeal from the dismissal of an application for a declaration that the appellant is an insured under two insurance policies.

The Court of Appeal allowed the appeal on the basis of an apparent conflict of interest between the appellant and Royal & Sun Alliance Insurance Company of Canada, which appointed and paid for the appellant's counsel.

The court found that the appellant should have had independent counsel to advise on the advisability of bringing the underlying application and to represent him on appeal, given that the insurer's financial interests diverged from the insured's interests.

Following a trial where the plaintiffs were awarded $70,563 in damages, the successful defendant sought costs on a partial indemnity basis to the date of its offer to settle and substantial indemnity costs thereafter.

The court found that the defendant was only entitled to partial indemnity costs, as elevated costs require a clear finding of reprehensible conduct, which was absent here.

The court also reduced the costs claimed to account for some inefficiency in the defendant's use of two counsel at trial, ultimately fixing costs at $141,568.73.

The plaintiffs sued the defendant patron and the defendant bar owner for damages arising from an assault at the bar.

The plaintiff husband suffered a spiral fracture of his tibia when the intoxicated defendant patron jumped on him, and the plaintiff wife alleged she was assaulted and her breasts exposed during the altercation.

The court found the defendant patron liable for battery, as his criminal conviction for the assault was prima facie evidence and he failed to prove consent or lack of intent.

However, the court dismissed the action against the bar owner.

Although the bar over-served the patron, the court applied the test from Stewart v. Pettie and found that the patron's sudden violent outburst was not reasonably foreseeable, precluding liability in both common law negligence and under s. 39 of the Liquor Licence Act.

The plaintiff husband was awarded $50,000 in general damages and $4,600 for past income loss, while the plaintiff wife was awarded $2,000 in general damages.

The plaintiffs brought two separate actions for damages arising out of two motor vehicle accidents, alleging both accidents contributed to indivisible injuries.

The actions were tried together.

The defendants made separate offers to settle that did not comply with the joint offer requirements of Rule 49.11, but combined, exceeded the plaintiffs' recovery at trial.

The trial judge declined to apply the costs consequences of Rule 49.10 or consider the offers under Rule 49.13.

On appeal, the Court of Appeal held that while Rule 49.10 did not apply due to the allegation of joint and several liability, the trial judge erred by failing to consider the offers under the discretionary power of Rule 49.13 and the offer to contribute under Rule 49.12.

The appeal was allowed, and costs were reapportioned.

The insurer brought a motion for the production of Children's Aid Society (CAS) files relating to the minor applicant and her two sisters.

The applicant sought attendant care benefits following a motor vehicle accident.

The arbitrator found the CAS files were arguably relevant to determining whether the applicant's attendant care needs arose from the accident or pre-existed it, and to understanding the overlapping care requirements of the siblings who lived together.

The motion was granted, subject to an order restricting the use and dissemination of the files to protect the minors' privacy.

The estate of the deceased insured appealed an arbitrator's decision denying ongoing caregiver benefits.

The estate argued that the deceased's death constituted an 'impairment' under the Statutory Accident Benefits Schedule, entitling the estate to ongoing caregiver benefits for expenses incurred after her death.

The Director's Delegate dismissed the appeal, holding that caregiver benefits, like income replacement and medical benefits, are payable to the insured person and terminate upon the insured person's death.

The insured person was fatally injured in a motor vehicle accident.

Her estate applied for statutory accident benefits, including caregiver benefits, arguing that death constitutes an 'impairment' under the Statutory Accident Benefits Schedule.

The insurer denied the claim, arguing that death is distinct from impairment and that post-mortem benefits are limited to death and funeral benefits.

The arbitrator held that death is not an impairment for the purpose of qualifying for caregiver benefits, as interpreting it as such would create absurdities and contradict the clear distinction between death and impairment in the Insurance Act.