Brian A. Foster

The moving parties sought leave to appeal an order dated December 20, 2021.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to one responding party on a partial indemnity basis in the amount of $5,000.

No costs were awarded to the other responding parties as no factum was filed.

This appeal concerns the correct analytical approach to fixing costs when an action is settled before adjudication on the merits.

Two infant plaintiffs were catastrophically injured when struck by a vehicle in 2004.

After more than ten years of litigation, the parties settled in June 2017, three months before trial.

The settlement provided for $1 million from each of the Potrebics and Pipolos, with costs to be determined by the court.

The motion judge apportioned costs based on his assessment of the parties' respective liability for damages, finding the Potrebics solely responsible.

The appellants challenged this apportionment and the quantum of costs awarded.

Following a three-week jury trial in a personal injury action, the plaintiff was awarded $241,740 in damages.

Prior to trial, the defendants had served an offer to settle for $375,000 plus costs.

Because the jury award was less favourable than the defendants' offer, the defendants sought costs from the date of the offer pursuant to Rule 49.10.

The plaintiff argued that her impecuniosity should relieve her from paying the defendants' costs, as it would effectively offset her damages award.

The court rejected this argument, finding no reason to deviate from the normal costs rules.

The plaintiff was awarded partial indemnity costs up to the date of the offer, and the defendants were awarded partial indemnity costs thereafter.

The plaintiff brought an action for damages arising from a motor vehicle accident.

Following a jury trial where the defendant was found 100% at fault and the jury awarded $1,053 for general damages and $38,500 for past wage loss, the defendants brought a threshold motion arguing the plaintiff did not suffer a permanent serious impairment.

The trial judge granted the threshold motion, finding the plaintiff's evidence lacked credibility and was undermined by surveillance footage and medical records showing significant pre-existing chronic pain and narcotic use.

The court concluded the low-impact collision did not materially contribute to a diminution in her function.

The appellant was involved in a motor vehicle accident while driving a vehicle she co-owned with her father.

At the time of the accident, the vehicle was uninsured and the appellant was driving without her father's consent.

The trial judge found that both were owners under the Highway Traffic Act, but that the father and his insurer were not liable because the appellant drove without his consent.

The Court of Appeal allowed the appeal, holding that under s. 192(1) of the Highway Traffic Act, a co-owner in possession of the vehicle does not need the consent of the other co-owner for both to be held vicariously liable.

The applicant sought judicial review of a coroner's decision denying him standing at an ongoing inquest.

The coroner found the applicant did not meet the statutory requirements for standing under either the public law or private law tests.

The Divisional Court dismissed the application, holding that the coroner's decision was entitled to curial deference and was not unreasonable.

The court emphasized the need to avoid interrupting the ongoing statutory hearing and found no serious error in principle that would justify interference.

The applicants were injured in a motor vehicle accident and received statutory accident benefits until the insurer terminated them.

More than two years later, the applicants applied for mediation and subsequently arbitration.

The insurer argued the application was barred by the two-year limitation period under section 281(5) of the Insurance Act.

The applicants argued for a 'rolling limitation period' based on prior case law.

The arbitrator held that she was bound by a Director's Delegate decision which rejected the rolling limitation period, and therefore dismissed the application for arbitration as out of time.

The insurer sought an order requiring the insured to attend an independent medical examination in London and a functional capacities evaluation at the Canadian Back Institute.

The arbitrator held that the insurer could choose its medical examiner, but it was unreasonable to require the insured to travel from Windsor to London for the examination.

The arbitrator also dismissed the request for a functional capacities evaluation, finding no evidence that the chosen doctor required an assessment by an undesignated health professional to assist in evaluating the insured's condition.

The applicant, who sustained paraplegia in a motorcycle accident, sought payment from his insurer for various expenses related to temporary accommodation, home renovations, transportation, and miscellaneous items under the Statutory Accident Benefits Schedule.

The arbitrator allowed certain expenses for apartment furnishings, window blinds, and a wire basket system as reasonable and necessary for rehabilitation.

However, claims for unauthorized changes to the home's heating and cooling system, landscaping, a second set of vehicle hand controls, and optional vehicle extras were denied as they were not required as a result of the accident.

The insurer was ordered to pay 17 months of lease payments for an interim vehicle and the cost of an interior stain guard for the modified minivan.

The insurer appealed an arbitrator's order requiring it to provide the catastrophically injured insured with a suitably modified mini-van under section 6(1)(f) of the No-Fault Benefits Schedule.

The insurer argued that transportation expenses were exhaustively covered by section 6(1)(d) and that a van was not 'necessary' for rehabilitation.

The insured cross-appealed, seeking a full-size custom van and a special award.

The Director's Delegate dismissed the insurer's appeal, finding that section 6(1)(f) authorized the provision of a motor vehicle and that a broad definition of rehabilitation included psychological adjustment and independence.

The cross-appeal for a full-size van was also dismissed, as the mini-van was deemed a reasonable expense.

The Director's Delegate refused to admit fresh evidence on the special award issue, finding it could have been adduced at the original hearing.

The Applicant suffered catastrophic injuries in a motorcycle accident, resulting in paraplegia.

He applied for no-fault benefits, including home renovations and a suitably modified motor vehicle.

The Insurer refused to provide a vehicle, arguing it was only liable for transportation costs to and from treatment.

The arbitrator held that a modified mini van was a reasonable expense resulting from the accident under section 6(1)(f) of the No-Fault Benefits Schedule, as it was necessary for the Applicant's rehabilitation and independence.

The arbitrator dismissed the Applicant's claim for a special award under section 282(10) of the Insurance Act, finding that the Insurer had not unreasonably withheld or delayed payments.