George Kanellakos

This appeal concerns priority for statutory accident benefits under Ontario's no-fault automobile insurance regime after a claimant declined optional rental-counter coverage and was injured in a single-vehicle accident.

The core issue was whether the insurer had a sufficient nexus to the claimant to qualify as an insurer obliged to respond under s. 268 of the Insurance Act and the inter-insurer priority framework.

The Court accepted the appellate reasons below that the arbitrator erred in excluding the insurer from the statutory scheme.

The appeal was allowed and costs were awarded to the appellant.

The plaintiffs were injured in a motor vehicle accident and sued the at-fault driver.

When the defendant's insurer took an off-coverage position, the plaintiffs' counsel attempted to add the plaintiffs' own insurer to the action for underinsured coverage.

After a motion judge directed counsel to bring the motion on notice due to a potential limitation period issue, counsel instead commenced a new action against the insurer.

The motion judge in the new action struck the claim as an abuse of process.

The Court of Appeal allowed the appeal, finding that while ignoring the direction was a minor abuse of process, striking the claim and potentially depriving the plaintiffs of underinsured coverage was a disproportionate penalty.

The court instead penalized the plaintiffs by denying them the costs of the motion and the appeal.

The driver was injured in a single-vehicle accident while driving a rental vehicle insured by the respondent.

The rental company also held an optional death and dismemberment policy with the appellant, which the driver did not purchase.

The driver submitted a claim for statutory accident benefits to the appellant, who refused to pay.

The respondent began paying the benefits and initiated a priority dispute arbitration.

The arbitrator ruled the appellant was not an 'insurer' under the statutory regime because there was no sufficient nexus.

The application judge overturned this, finding the appellant was an insurer.

On appeal, the Court of Appeal allowed the appeal, holding that the appellant's policy was not a 'motor vehicle liability policy' and therefore the appellant was not required to pay first and dispute later under O. Reg. 283/95.

Two insurers disputed liability for indemnity arising from a motor vehicle accident and whether the plaintiff insurer’s claim against the defendant insurer was statute‑barred.

The issue was when the claim was discovered for the purposes of the two‑year limitation period under the Limitations Act, 2002.

The court held that discoverability occurs when the plaintiff knows or ought to know that the at‑fault driver was insured under a valid policy.

The plaintiff exercised reasonable diligence and did not discover the existence of applicable insurance until 2010 despite earlier related litigation.

The action commenced shortly thereafter was therefore within the limitation period.

The applicant was injured in a motor vehicle accident and sought a determination that he suffered a catastrophic impairment due to a mental or behavioural disorder, as well as entitlement to attendant care benefits.

The arbitrator applied the three-stage test from Pastore v. Aviva Canada Inc. and found that the accident materially contributed to a cognitive disorder that significantly impaired the applicant's daily life.

The arbitrator concluded the applicant had a marked impairment in concentration, persistence, pace, and work adaptation, meeting the threshold for catastrophic impairment.

The arbitrator awarded a monthly attendant care benefit of $3,036.82, finding the applicant required some supervisory care but not the constant supervision claimed.

Following a prior decision striking the claim against an insurer as an abuse of process, the successful defendant sought costs totaling $10,000 on a partial indemnity basis for the motion, the action, and written submissions.

The plaintiffs argued the award should reflect only the earlier bill of costs relating to the motion and challenged certain items claimed for the broader action as not properly recoverable on a party-and-party basis.

The court considered the range reflected in the competing bills of costs for the motion and the conduct underlying the abuse of process finding.

The court fixed costs for the motion at $5,400, added $300 for written costs submissions and $1,000 for the action.

Total costs were set at $6,700 inclusive of disbursements and HST.

The insurer brought a motion under rule 21.01(3) of the Rules of Civil Procedure to dismiss or strike portions of a Toronto action commenced after a prior Newmarket action arising from the same motor vehicle accident.

The plaintiffs had earlier attempted to add insurers as defendants in the Newmarket proceeding under Rule 26 but were directed to bring the motion on notice.

Instead of complying, they commenced a second action in Toronto asserting overlapping claims against the same defendants and the insurer.

The court held that commencing the new action circumvented the procedural requirements of Rule 26 and the court’s supervisory jurisdiction, thereby constituting an abuse of process.

The paragraphs of the Toronto statement of claim asserting claims against the moving insurer were struck without leave to amend.

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.

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.

The applicant was injured when she fell off her bicycle while maneuvering around a parked van that was encroaching on the sidewalk during a festival.

She applied for statutory accident benefits, but the insurer denied the claim, arguing the incident did not meet the definition of an 'accident' under the Schedule.

The arbitrator found that parking is an ordinary use of a vehicle and that the parked van created a situation of risk that directly caused the applicant's injuries.

The preliminary issue was resolved in favour of the applicant.

The applicant was injured in a motor vehicle accident and received caregiver benefits from the insurer.

The insurer terminated the caregiver benefits at the two-year mark without requesting a new disability certificate, contrary to section 37 of the Statutory Accident Benefits Schedule.

The insurer also failed to advise the applicant of her potential entitlement to non-earner benefits.

On a preliminary issue hearing, the arbitrator found that the insurer failed to comply with the Schedule.

Applying the principles from Yogesvaran, the arbitrator ordered the insurer to pay interim caregiver and non-earner benefits pending a full arbitration hearing on final entitlement.

Issues of interest and a special award were deferred to the hearing arbitrator.

The appellant's personal injury action arising from a motor vehicle accident was dismissed by the motion judge due to her failure to fulfill undertakings given during examinations for discovery while self-represented.

The Court of Appeal allowed the appeal and reinstated the action, finding that the motion judge failed to balance the prejudice to the appellant against any prejudice to the respondents, who provided no evidence of prejudice.

The court emphasized that a potentially meritorious claim should not be dismissed on procedural grounds unless the defendant demonstrates prejudice to their ability to defend the claim.

The insured was severely injured in a motor vehicle accident and subsequently convicted of dangerous driving.

The insurer denied Statutory Accident Benefits (SABS) after the conviction, arguing the conviction was a complete bar under s. 30(4) of O. Reg. 403/96.

The motion judge held that the insured was only excluded from receiving benefits for the period between being charged and being convicted, and that O. Reg. 403/96 governed the policy.

The Court of Appeal dismissed the insurer's appeal and the insured's cross-appeal, finding that while s. 30(4) likely contained a drafting error that failed to achieve the legislature's intent to completely bar benefits upon conviction, the language was clear and unambiguous, precluding the court from redrafting the regulation to fix the gap.