Kyle T.H. Smith

The applicant sought judicial review of a FSCO Delegate's decision upholding an arbitrator's finding that his entitlement to WSIB benefits precluded him from receiving statutory accident benefits (SABS).

The applicant argued the insurer was estopped from relying on his suspended licence to deny benefits and that the arbitrator erred in interpreting the onus under s. 59(2) of the SABS Schedule.

The Divisional Court dismissed the application, finding the Delegate's decision reasonable.

The insurer did not mislead the applicant, and the applicant failed to discharge his onus to prove his civil action was not commenced primarily for the purpose of claiming SABS.

The appellant appealed a summary judgment decision finding implied consent for his son to drive his vehicle.

The motions judge had drawn an adverse inference against the appellant for failing to make efforts to provide his son's evidence.

The Court of Appeal allowed the appeal, finding the motions judge erred by drawing the adverse inference without first assessing the credibility of the appellant's own evidence, which strongly suggested a lack of consent.

The summary judgment motion was dismissed.

The plaintiffs moved for partial summary judgment under Rule 20 of the Rules of Civil Procedure seeking to strike a paragraph of the defendant’s amended statement of defence pleading spoliation of evidence.

The motion arose from a product liability action alleging that a piece of plastic found in a sandwich bun caused injury, where the plastic specimen removed during surgery was later lost by the hospital.

The court held that Rule 20 summary judgment is not properly used merely to strike a defence pleading where doing so would not resolve the underlying claim or avoid a trial.

The court also found that the defence had previously been acknowledged as legally tenable and that factual issues concerning the loss of evidence and potential obligations to preserve evidence remained unresolved.

The motion was dismissed.