John Ashley Friendly

The plaintiffs brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s order dismissing their action for delay under Rule 48.14.

The underlying action arose from a pedestrian–motor vehicle accident and included tort claims against the driver and statutory accident benefits claims involving the Motor Vehicle Accident Claims Fund.

Applying the contextual test and the four factors from Reid v. Dow Corning Corp., the court examined the explanation for delay, inadvertence in missing the deadline, promptness of the motion, and prejudice to the defendants.

Although the motion was not brought promptly, the court found that the delay was largely attributable to counsel’s inadvertence and unusual circumstances including illness, staff turnover, and an office flood, and that the defendants had not demonstrated actual prejudice.

The registrar’s dismissal order was therefore set aside.

A cyclist was injured by an unidentified motorist and applied to the Motor Vehicle Accident Claims Fund for statutory accident benefits.

The application lacked a police report.

The Fund later learned of a 911 call but delayed seeking a court order to obtain the call records for over seven months.

Once obtained, the records identified the motorist and their insurer, Pilot Insurance Company.

The Fund then notified Pilot of its intent to dispute priority.

The Court of Appeal held that while the application became functionally adequate when the 911 records were obtained, the Fund's lack of diligence in pursuing the records meant it should be treated as having received a completed application months earlier.

Consequently, the Fund failed to meet the 90-day notice requirement under s. 3 of O. Reg. 283/95 and remains responsible for paying the benefits.

The appellant insurer appealed a trial judgment allowing the Motor Vehicle Accident Claims Fund's action for restitution of statutory accident benefits paid to an injured passenger.

The appellant argued the Fund was required to proceed by arbitration under the Dispute Regulation rather than by a civil action.

The Court of Appeal dismissed the appeal, holding that while the Fund is an 'insurer' under the regulation, this was a 'proper case' for a restitution action because the parties had engaged in informal discussions past the 90-day arbitration notice period, making arbitration impossible.

The Court also held that the notice provisions of the regulation do not apply to civil restitution claims and that judge-made law regarding the Fund's status as an insurer applies retrospectively.

The Motor Vehicle Accident Claims Fund appealed a Superior Court decision that remitted an arbitration award back to the arbitrator.

The dispute arose after Kingsway cancelled an auto insurance policy for non-payment two days before an accident, leading the Fund to pay the injured party's accident benefits and seek reimbursement.

The arbitrator ordered Kingsway to pay the benefits permanently due to a breach of section 2 of O. Reg. 283/95, finding a 'significant nexus' between Kingsway and the insured.

The Superior Court held the arbitration was not under O. Reg. 283/95 because the Fund was not an 'insurer', and remitted the matter to determine if Kingsway was actually an insurer.

The Court of Appeal allowed the appeal in part, holding that the Fund is an insurer under the regulation, but upheld the decision to remit the matter to the arbitrator to determine if Kingsway was an insurer at the time of the accident.

The appellants appealed an order allowing the Motor Vehicle Accident Claims Fund to seek restitution through the courts for statutory accident benefits paid to a tort victim.

The appellants argued the Fund was bound by the arbitral dispute resolution model under O. Reg. 283/95.

The Court of Appeal dismissed the appeal, holding that the Fund is not an 'insurer' for the purposes of the Regulation and that nothing in the Regulation removes the Fund's common law right to seek restitution in court.

The appellant estate appealed a trial judgment finding that the owner of a motor vehicle was not vicariously liable for a fatal accident.

The plaintiff, who had the owner's consent to possess the vehicle, fell asleep in the passenger seat.

The deceased driver, who did not have a license or the owner's consent, took control of the vehicle and crashed.

The Court of Appeal upheld the trial judge's finding that the plaintiff was not in possession of the vehicle at the time of the accident, as the driver had taken possession without consent.

The appeal was dismissed.