Kyle Smith

Following their successful defence against a motion to add them as third parties, the Proposed Defendants sought partial indemnity costs.

The moving party, Security National, argued the Proposed Defendants were merely intervenors and not entitled to costs.

The court found that the Proposed Defendants had standing and, even if considered intervenors, met the exception to the general rule against awarding costs to intervenors due to their significant interests and necessary participation.

The court awarded partial indemnity costs of $5,328 to People on Bikes and Gord Townley, and $2,667 to His Majesty the King.

This motion addressed Security National's request to add additional defendants (People on Bikes, Gordon Townley, and His Majesty the King in Right of Ontario) to an existing third-party claim, almost six years after the incident and after the expiry of the statutory limitation period.

The court determined that the applicable rule for adding parties to an existing claim was Rule 5.04(2), not Rule 29.02(1.2), which required considering prejudice to both the plaintiff and the proposed new parties.

The court found that Security National failed to demonstrate that the information regarding the proposed defendants was not discoverable earlier with due diligence, thus prejudicing the proposed defendants due to the expired limitation period.

Furthermore, the court found that allowing the motion would cause significant delay and increased costs, resulting in actual prejudice to the plaintiff, Erin Townley, who has suffered serious injuries and seeks closure.

The court also noted the questionable merit of the claim against uninsured proposed parties.

Consequently, Security National's motion was denied.

The plaintiff, a class member in a class action arising from a 1999 VIA Rail train derailment, sought over $60 million in damages, primarily for past and future loss of income and future care costs.

The plaintiff claimed the accident caused severe, debilitating injuries that destroyed his highly lucrative consulting business in Poland and Eastern Europe.

The court found the plaintiff and many of his lay and medical witnesses lacked credibility, noting significant inconsistencies, lack of documentary evidence (such as tax returns and banking records), and evidence of extensive post-accident travel and business activities.

The court rejected the income loss and future care claims entirely, awarding only $50,000 in general damages for minor soft tissue injuries.

The plaintiff, Mr. MacIvor, sought long-term disability (LTD) benefits from Manulife under a group insurance policy held by his former employer, Pitney Bowes, after being seriously injured.

Manulife denied liability, arguing that the plaintiff's coverage ceased when he resigned from Pitney Bowes and that his claim was made after the limitation period.

The court found that the plaintiff was not a "Covered Person" under the policy at the time he made his claim, as coverage terminated upon his resignation.

Section 297(1) of the Insurance Act was deemed inapplicable as the policy itself had not terminated.

Consequently, the plaintiff's action was dismissed.

During a personal injury class action trial arising from a VIA Rail derailment, a class member sought to qualify a chartered accountant as an expert witness to quantify past and future wage loss.

The defendants opposed the qualification, arguing the expert lacked objectivity and his evidence was unnecessary.

The Superior Court of Justice applied the Mohan framework and found the expert's evidence was not necessary, as he merely accepted the class member's uncorroborated figures without independent analysis.

The court also found the expert failed to establish a basic threshold of objectivity, rendering him improperly qualified.

The expert evidence was ruled inadmissible.

This motion concerned whether a lawyer could represent both a driver and a passenger in a motor vehicle accident claim when the defendants counterclaimed against the driver for contribution to the passenger's damages.

The applicant, Louis Gordon Sabean (as defendant to the counterclaim, through his insurer's counsel), sought to remove Jeffrey Strype as counsel for Sian Patricia Sabean (the passenger).

The court found no disqualifying conflict of interest, noting the common interest of the plaintiffs in establishing the defendants' liability, the waiver of conflict by the clients, and the speculative nature of the alleged risks of impaired representation or confidential information disclosure.

The motion was dismissed.

During a trial for damages arising from a railway accident, the plaintiff (a class member) sought to qualify an expert witness to provide opinion evidence on the profitability of a proposed European pipeline project, claiming a loss of opportunity.

The defendants objected to the expert's admissibility.

Following a voir dire, the court refused to qualify the expert.

The court found the expert's evidence lacked reliability due to an undisclosed prior business relationship with the plaintiff.

Furthermore, the court held the expert evidence was unnecessary because the plaintiff failed to produce admissible evidence or documentation demonstrating he could have obtained the financing required to build the pipeline.

Following the dismissal of the plaintiffs' action against the defendant lawyers, the court determined the issue of costs.

The plaintiffs argued that costs should not be awarded due to the lead plaintiff's hardship as a paraplegic, the fact that the defendants were insured by LawPro, and the defendants' failure to make settlement offers.

The court rejected these arguments, holding that hardship does not displace the rule that costs follow the event, and that the presence of insurance is irrelevant to costs awards.

The court fixed the defendants' costs at $250,000 for the main action and $7,500 for the abandoned Family Law Act claims.

During a lengthy personal injury trial arising from a train derailment, the defendants brought a motion to determine whether the plaintiff required leave under section 12 of the Evidence Act to call more than three 'participant experts' (treating doctors) who intended to proffer opinion evidence.

The court held that while treating doctors testifying strictly to history, treatment, diagnosis, and prognosis do not require leave, those offering broader opinion evidence must comply with Rule 53.03 and are subject to the three-expert limit.

The court emphasized its gatekeeper function and the need for proportionality, ruling that the plaintiff must seek leave to call more than one expert per medical specialty.

The plaintiff was severely injured in a motorcycle accident in Jamaica.

She retained the defendant lawyer to investigate potential insurance claims.

The lawyer advised that her family's Ontario automobile insurance policy would not provide accident benefits due to a territorial restriction limiting coverage to North America, and thus did not file an application for benefits before the two-year limitation period expired.

The plaintiff sued the lawyer for professional negligence, arguing he should have filed the application to preserve her rights, especially given subsequent changes in case law.

The court dismissed the action, finding the lawyer met the standard of care of a reasonably competent expert in insurance law at the time, and that an application for benefits would likely have been denied anyway.

During a personal injury trial arising from a train derailment, the defendants brought mid‑trial motions seeking orders requiring certain foreign witnesses to testify in person in Canada rather than by video conference and restricting the plaintiff to evidence previously disclosed under an earlier discovery order.

The court considered Rule 1.08 of the Rules of Civil Procedure and the broader access‑to‑justice principles articulated in Hryniak v. Mauldin.

The judge held that credibility concerns alone did not justify refusing video evidence and found the balance of convenience favoured permitting the witnesses, located abroad, to testify by video conference with interpretation.

The court also declined to limit the plaintiff’s evidence to earlier will‑say statements, finding that continuing disclosure obligations and fairness required allowing updated affidavit evidence while preserving the defendants’ opportunity to challenge it.

The insurer was entirely successful on two appeals regarding licence suspensions and workplace benefits, and sought its appeal expenses.

The insurer claimed approximately $6,100 in legal fees and disbursements.

The insured disputed the amount, arguing that the time spent drafting pleadings and the revised bill of costs was excessive.

The Director's Delegate found that the appeals were more complex than average, justifying an award higher than the typical $2,800, but reduced the claimed amount to account for excessive time spent.

Appeal expenses were fixed at $4,000 inclusive of disbursements and HST.

The applicant was injured in a motor vehicle accident and initially denied income replacement benefits by his insurer due to a suspended driver's licence.

He subsequently applied for and received workplace benefits from the WSIB, but later withdrew his WSIB claim and commenced a tort action, seeking to re-elect accident benefits.

The Director's Delegate affirmed the arbitrator's decision that the applicant was precluded from claiming accident benefits under section 59 of the SABS, as his tort action was commenced primarily for the purpose of claiming accident benefits.

The insurer's appeal regarding the licence suspension issue was deemed moot, though the Delegate noted errors in the arbitrator's finding that the applicant had exercised due diligence regarding his mail.

The applicant was entirely successful in a five-day arbitration regarding statutory accident benefits and was awarded expenses.

The parties could not agree on the quantum of expenses.

The arbitrator assessed the legal fees and disbursements, allowing the maximum hourly rate for counsel but reducing the claim for double-billed settlement discussions, travel time billed as legal fees, and certain disbursements such as interest charges and excessive overnight expenses.

Legal fees were fixed at $23,099.00 and disbursements at $31,094.43 plus GST/HST.

The applicant was struck by an uninsured driver and applied for accident benefits from the Motor Vehicle Accident Claims Fund (MVAC Fund).

The applicant had previously settled a lawsuit against her long-term disability carrier, Great West Life (GWL), for a lump sum of $150,000.

The MVAC Fund brought a motion to determine whether the GWL settlement was deductible from any accident benefits owing under s. 267.8 of the Insurance Act or s. 22 of the Motor Vehicle Accident Claims Act.

The arbitrator found that the settlement funds were paid to settle a legal obligation rather than as a payment under an income continuation benefit plan.

As there was no evidence breaking down the settlement funds to past benefits owing, the arbitrator concluded the settlement was not deductible under either statute.

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

The insurer denied the claim, arguing the applicant was precluded under s. 59(1) of the Statutory Accident Benefits Schedule because he was entitled to workers' compensation benefits.

The applicant argued the insurer was estopped from relying on s. 59 because it initially denied benefits on the basis of a suspended licence, prompting him to apply for WSIB benefits.

The arbitrator found the insurer was not estopped, as it had not misrepresented its position and the applicant did not rely on it to his detriment.

The arbitrator also found the applicant did not fall under the s. 59(2) exception, as he failed to prove his tort action was not commenced primarily for the purpose of claiming accident benefits.

The applicant was therefore precluded from receiving accident benefits.

The applicant sought statutory accident benefits following a 2004 motor vehicle accident.

The insurer raised a preliminary issue, arguing the application for arbitration was barred by the two-year limitation period under the Insurance Act.

The insurer claimed it had provided clear and unequivocal denials of income replacement and housekeeping benefits in 2005 via Explanation of Benefits (OCF-9) forms.

The arbitrator found no evidence that the applicant received the unsigned OCF-9 forms, which lacked proof of delivery.

Furthermore, the arbitrator held that even if received, the forms were vague, confusing, and requested further information, thus failing to constitute clear and unequivocal denials.

The insurer's limitation defence was dismissed, allowing the applicant to proceed to arbitration.