Joseph A. Cescon

A pedestrian struck by a vehicle in 2008 received statutory accident benefits for attendant care and housekeeping until the insurer terminated them in 2010.

In 2015, after receiving a catastrophic impairment designation, the claimant reapplied for benefits.

The Tribunal and Divisional Court found the claim was out of time based on a two-year limitation period.

The Court of Appeal allowed the appeal, finding that the limitation period was subject to the rule of discoverability and was not a hard limitation period.

The court held that applying a hard limitation period would be contrary to the consumer protection purposes of the Statutory Accident Benefits Schedule and would produce an absurd result by barring claims before the claimant was eligible to make them.

The plaintiff, a truck driver operating a tractor-trailer as an independent contractor in Florida, was struck by an underinsured vehicle with only $20,000 in coverage.

He sought underinsured motorist coverage under two insurance policies: his personal automobile policy with AllState and the fleet coverage through ACE INA for the commercial vehicle.

Both policies contained optional Family Protection Coverage endorsements for underinsured vehicle coverage.

The motion judge granted summary judgment in favor of the plaintiff, finding that AllState was obliged to provide underinsured coverage while ACE INA was not.

AllState appealed, and the plaintiff cross-appealed the ACE INA decision.

The Court of Appeal allowed AllState's appeal and dismissed the cross-appeal, holding that neither insurer was obliged to provide underinsured coverage for the heavy commercial vehicle operated by the plaintiff.

The appellant insurer appealed a motion judge's decision that it was obliged to provide underinsured motorist coverage to the respondent truck driver under an OPCF 44R Family Protection Coverage endorsement on his personal automobile policy.

The respondent operated a tractor owned by his corporation and leased to a transport company under fleet insurance.

He suffered serious injuries when struck by an underinsured driver in Florida.

The Court of Appeal adjourned the appeal sine die to allow the parties to enlarge the record with evidence regarding how Ontario-based truck drivers obtain underinsured coverage, recognizing that a ruling could affect thousands of commercial vehicle drivers and their families.

The Personal Insurance Company brought a summary judgment motion seeking a declaration that Linda-Sue Pearce was the owner of a truck involved in a motor vehicle collision, and an order dismissing the action against Personal.

The court found that Pearce, as the registered owner, failed to rebut the presumption of ownership, despite arguments that her son, Trevor James Middleton, was the true owner.

The court granted the declaration that Pearce was an owner of the truck and dismissed the action against Personal, as Pearce's own insurance policy with Wawanesa Insurance would apply.

The moving parties, two commercial establishments, sought leave to appeal the dismissal of their motions for summary judgment.

The plaintiff had sustained a severe traumatic brain injury after falling down stairs at a rented chalet following a night of drinking at the moving parties' establishments.

The moving parties argued their duty of care ended when the plaintiff reached the chalet.

The court dismissed the motions for leave to appeal, finding no reason to doubt the correctness of the motion judge's decision that foreseeability of risk and the sobriety of the plaintiff's companions were issues requiring a trial.

The defendants Tholos Restaurant Inc. and Kaytoo Restaurant and Bar Limited brought a motion for summary judgment to dismiss a negligence action brought by the plaintiff, Matthew Linton, who suffered a severe brain injury after falling down steps at a chalet following a bachelor party.

The plaintiff alleged commercial host liability, arguing the defendants overserved him alcohol, leading to his intoxication.

The court denied the motion, finding genuine issues requiring a trial, particularly regarding the amount of alcohol consumed, when and where it was consumed, and whether the commercial hosts knew or ought to have known of the plaintiff's intoxication.

The court emphasized the conflict between expert toxicologist evidence (suggesting obvious intoxication) and lay witness statements (denying visible impairment), and the risk of inconsistent findings if the motion were granted while the action against other defendants proceeded to trial.