Graeme Mew

The moving defendants sought a determination that the substantive law governing liability for a skiing accident occurring in Colorado should be the law of Colorado rather than Ontario.

The plaintiff argued that Ontario law should apply because the parties’ relationship, contractual documents, and supervisory duties arose in Ontario.

Applying the Supreme Court of Canada’s decision in Tolofson v. Jensen, the court held that the lex loci delicti rule governs tort claims and that the substantive law of the place where the tort occurred generally applies.

The court found no exceptional circumstances warranting departure from that rule despite the parties’ Ontario connections.

The liability issues, including negligence, standard of care, causation, and contributory negligence, were therefore to be determined under Colorado law.

In a personal injury action, the defendants requested the plaintiff attend a defence medical examination with a neuropsychologist.

The plaintiff agreed on the condition that the neuropsychologist's raw test data be produced directly to plaintiff's counsel.

The neuropsychologist refused, citing professional guidelines prohibiting disclosure to non-psychologists.

The court held that at the discovery stage, the raw test data should only be exchanged between neuropsychologists to balance the need for disclosure with the integrity of the testing process.

However, to ensure trial fairness and avoid delays, the court ordered that the raw test data must be produced directly to plaintiff's counsel once the matter reaches the pre-trial stage, subject to strict confidentiality and destruction requirements.

The appellants appealed a summary judgment dismissing their counterclaim as statute-barred under the Limitations Act, 2002.

The appellants argued that the limitation period was suspended under s. 52 of the Arbitration Act, 1991, because an arbitration had been commenced via correspondence, or alternatively, that the respondent was estopped from pleading a limitations defence.

The Court of Appeal dismissed the appeal, finding that the parties' correspondence merely proposed an arbitration agreement and did not commence an arbitration under s. 23 of the Arbitration Act, 1991.

The court also found no evidence to support an estoppel claim.

The appellant law firm and the respondent client entered into a contingency fee agreement containing an arbitration clause.

A dispute arose over the fee calculation, and the appellant served a notice of arbitration.

The respondent successfully applied to the Superior Court to strike the notice on the basis that the arbitration agreement was unenforceable for public policy reasons under the Solicitors Act.

On appeal, the Court of Appeal held that the application judge did not err in assuming jurisdiction to decide the threshold issue of enforceability.

However, the Court found that the arbitration clause was enforceable, provided the arbitrator conducts the arbitration in accordance with the substantive statutory protections of the Solicitors Act, including assessing whether the fee is fair and reasonable.

The appellant mining company sued its insurers in the U.S. for coverage relating to environmental damage alleged to have occurred in Washington State.

The insurers commenced parallel proceedings in British Columbia seeking declarations that they were not obligated to defend or indemnify the appellant.

The appellant sought to stay the British Columbia proceedings on the basis that the U.S. District Court had already asserted jurisdiction.

The Supreme Court of Canada dismissed the appeal, holding that under s. 11 of British Columbia's Court Jurisdiction and Proceedings Transfer Act, a foreign court's prior assertion of jurisdiction is only one factor to consider in the forum non conveniens analysis, and the chambers judge did not err in refusing the stay.

The appellants brought a derivative claim under the Family Law Act.

The principal claim was statute-barred, but no claim had been brought by the Estate.

The Court of Appeal dismissed the appeal, affirming that if the principal claim is statute-barred, the derivative claim is also barred, regardless of whether the Estate brought a claim.

The moving party requested a reconsideration of the Court of Appeal's judgment released on November 16, 2005.

The Court agreed to hear oral submissions on the request.

The Court ordered that the judgment be temporarily stayed pending the disposition of the reconsideration motion, allowing the endorsement to be registered on the title of the property in issue.

The appellants appealed a decision granting the respondent specific performance of a right of first refusal contained in a charge on a farm property.

The application judge had found that the right of first refusal survived the balance due date of the charge.

The Court of Appeal allowed the appeal, holding that the application judge erred in interpreting the term of the charge.

The Court concluded that the right of first refusal expired on the balance due date and was not binding when the property was subsequently offered for sale.

The appellant, Lafarge Canada Inc., sought a Bullock order regarding costs.

The Court of Appeal declined to make the order, noting that the appellant should have known the inclusion of the successful insurers as respondents on the appeal was unnecessary, as evidenced by the appellant abandoning the appeal against most of them at the end of oral argument.

The Court requested further submissions on whether the successful insurers should receive partial or substantial indemnity costs and whether costs should be fixed or assessed.

The plaintiffs, homeowners, sued Bertrand and Lafarge for damages resulting from defective concrete foundations caused by fly ash supplied by Lafarge.

The trial judge found Lafarge 80% liable and Bertrand 20% liable for approximately $20,000,000 in damages.

This appeal concerns the insurance coverage disputes between Bertrand, Lafarge, and their numerous primary and excess insurers.

The Court of Appeal upheld the trial judge's findings that the defective foundations constituted property damage under the CGL policies, that the continuous trigger theory applied to trigger all policies from 1986 to 1992, and that certain excess insurers had a duty to contribute to defence and third-party costs.

The appeal by Guardian Insurance was allowed regarding its duty to defend, but all other appeals and cross-appeals were dismissed.

The appellant appealed a decision finding that its action under s. 132 of the Insurance Act was barred by the limitation period in paragraph 4 of the insurance contract.

The Court of Appeal agreed with the lower court, noting there was no contractual language or conduct by the parties that would warrant departing from this result on public policy grounds.

The appeal was dismissed with costs fixed at $4,500.

The appellant insurer appealed an arbitration decision holding it responsible for paying the respondent's statutory accident benefits, valuing the respondent's fringe benefits for income calculation, and refusing to deduct CPP disability benefits.

The Director's Delegate dismissed the appeal, finding that the respondent was not a 'named insured' under the garage policy of his father's company despite being listed in an endorsement.

The Delegate also upheld the arbitrator's factual findings regarding the valuation of the respondent's payment-in-kind and confirmed that CPP benefits were not deductible.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits from Lloyd's, the insurer of the other vehicle, and later from Traders, his estranged wife's insurer.

Traders denied the claim as it was made outside the two-year limitation period.

The arbitrator held that the applicant was precluded from proceeding against Traders due to the late notice, and that the discoverability rule did not apply to extend the time limit.

The arbitrator also found that Lloyd's was not responsible for paying benefits because the applicant had recourse against Traders at the time of the accident, and Lloyd's was not estopped from denying coverage.

The applicant, a taxi driver, was stabbed by a passenger while waiting to be paid his fare.

He applied for statutory accident benefits, but the insurer denied the claim on the basis that the injuries were not caused by an 'accident' as defined in the Schedule.

The arbitrator applied the two-part test from Amos and found that the applicant was engaged in the ordinary use and operation of a motor vehicle at the time of the assault, and that there was a direct causal link between the use and operation of the taxi cab and the injuries.

The arbitrator concluded that the applicant was injured as a result of an accident and is entitled to proceed to arbitration.

The applicant was injured in a motor vehicle accident and received statutory accident benefits as well as CPP disability benefits.

The insurer argued that the parties had previously reached a binding settlement that CPP benefits were deductible, and alternatively, that CPP benefits are payments for loss of income and thus deductible under the Schedule.

The arbitrator found that no binding settlement was reached as there was no consideration given for the applicant's prior acknowledgement of the state of the law.

Furthermore, following appellate authority, the arbitrator held that CPP disability benefits are non-indemnity payments triggered by disability, not payments for loss of income, and therefore are not deductible from the applicant's gross weekly income.

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

A priority dispute arose between General Accident and Lloyd's.

The arbitrator determined that Lloyd's was responsible for paying benefits because the applicant was a 'named insured' under the Lloyd's policy, whereas he was merely listed as a driver on an endorsement under the General Accident policy.

The arbitrator also determined the value of non-monetary benefits (lodging, food, and tobacco) provided by the applicant's employer to be included in his gross weekly income calculation, despite the applicant's failure to declare these benefits on his income tax returns.

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

She applied for ongoing weekly income benefits, arguing she suffered from post-concussion syndrome and a brain injury that prevented her from working.

The insurer argued her inability to work was due to pre-existing psychological conditions and post-accident life events.

The arbitrator found that the accident materially contributed to her disability, exacerbating a pre-existing personality disorder, and that she was continuously prevented from engaging in suitable employment.

The arbitrator also ordered a $5,000 special award against the insurer for unreasonably terminating and withholding benefits based on a cursory neurological report while ignoring numerous other medical recommendations.

The applicant's husband committed suicide by running a hose from the exhaust pipe into the passenger compartment of his car.

The applicant sought funeral and death benefits under the Statutory Accident Benefits Schedule.

The insurer denied the claim on the basis that the death was not an 'accident'.

The arbitrator held that while the death resulted from an 'incident' involving the use of an automobile, the term 'incident' in the definition must be restricted to the category of 'accident'.

Since the death was planned and deliberate, it was not an accident.

The application for benefits was dismissed.

These companion appeals concerned the governing choice of law rule for interprovincial tort claims arising from motor vehicle accidents.

The Court held that the general rule in tort is lex loci delicti, not lex fori, emphasizing territoriality, certainty, predictability, constitutional coherence, and the need to reduce forum shopping.

In the British Columbia action, Saskatchewan substantive law governed, including its limitation period, which the Court characterized as substantive.

In the Ontario action, Quebec's no-fault statutory scheme applied to the bodily injury claims and barred the action and cross-claim.

The Court overruled prior authority adopting the forum law approach.