Kevin S. Adams

The court dismissed the defendants’ motion for security for costs against Icon Wheelchairs Canada, finding that the delay in bringing the motion and the arguable merits of the plaintiff’s claims made such an order unjust.

The court also fixed costs for the discontinued action by Icon Wheelchairs Inc., but stayed payment pending the outcome of the defendants’ counterclaim.

The decision provides a detailed analysis of the legal framework for security for costs, the impact of delay, and the assessment of the merits of the underlying claims.

This endorsement addresses the protracted litigation of three third-party actions arising from fire losses, where the defendant Venmar Ventilation Inc. (third-party plaintiff) seeks payment from Fasco Industries Inc. (third-party defendant) for alleged defects in a motor.

The case management judge expressed frustration over the slow pace and non-compliance with previous court orders.

The judge issued new orders to compel both parties to complete outstanding productions, file trial records, and deliver expert reports to advance the matters to trial.

The applicant, Zurich Insurance Company Ltd., appealed an arbitration decision that found a collision occurred between vehicles insured by Zurich and The Personal Insurance Company, and ordered Zurich to indemnify The Personal for accident benefits paid.

The arbitrator had found, on a balance of probabilities, that contact occurred, despite an expert report suggesting otherwise, relying on witness statements and identifying deficiencies in the expert report.

The Superior Court reviewed the arbitrator's decision on a standard of reasonableness, finding it was a factual determination.

The court dismissed the appeal, concluding the arbitrator's decision was reasonable and fell within a range of acceptable outcomes.

The plaintiffs brought a motion under Rule 34.15 of the Rules of Civil Procedure seeking an order compelling a defendant to answer questions refused during an examination for discovery and to attend for a further discovery.

The action arose from a motor vehicle collision in which the plaintiffs alleged negligence, impairment, and negligent entrustment of a vehicle by the corporate defendant.

The court considered the relevance and proportionality of various refused questions relating to the defendant driver’s licensing history, the corporate defendant’s knowledge of his driving record, alcohol consumption prior to the collision, and identification of potential witnesses.

Applying Rules 31.06 and 29.2.03, the court held that most questions were relevant to the pleadings and properly discoverable.

The defendant was ordered to answer specified questions and provide additional witness information.

Following a successful appeal that set aside an arbitrator’s decision, the court addressed the issue of costs between two insurers.

The applicant sought $15,587.26 in partial indemnity costs, arguing that the appeal involved complex statutory interpretation within the regulated insurance industry and required substantial legal analysis.

The respondent argued that the amount was excessive because much of the work had already been completed during the arbitration and that time spent by junior counsel was unnecessary.

Applying the principles governing costs under Rule 57.01 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act, the court found that some of the claimed time, particularly by junior counsel, was excessive but that a meaningful award was still warranted given the sophistication of the parties and the nature of the dispute.

Costs were fixed at $11,000 inclusive of fees and disbursements.

The defendants brought a Rule 21.01 motion seeking an order barring the plaintiff from advancing personal injury damages arising from the death of her dog, arguing that psychiatric injury to the owner was not reasonably foreseeable and was too remote in law.

The plaintiff alleged negligent dispensing of medication caused the dog’s death and resulted in severe emotional trauma, nervous shock, and economic loss.

The court held it was not plain and obvious that the damages were unrecoverable and that issues of foreseeability, duty of care, and psychiatric injury required determination on a full evidentiary record.

The motion to strike the personal injury claims was dismissed.

However, the court granted the defendants’ alternative request for further examination for discovery and related production concerning newly disclosed economic loss reports.

An insurer appealed an arbitrator’s ruling in a statutory accident benefits priority dispute under s. 268 of the Insurance Act and Ontario Regulation 283/95.

The arbitrator held that the respondent insurer was not an “insurer” for purposes of the scheme because there was no nexus between the accident victim and the respondent’s optional insurance policy offered through a rental car company.

The court applied the correctness standard of review and held the arbitrator erred by applying a remoteness analysis rather than the proper “arbitrariness” nexus test developed in the case law.

Even though the accident victim declined the optional policy, the connection through the rental vehicle and the insurer’s optional coverage was sufficient to establish a non-arbitrary nexus triggering the statutory scheme.

The arbitrator’s decision was set aside and the matter remitted for determination of the remaining priority dispute issues.