James Dunn

Following a jury trial in a motor vehicle accident action, the defendants brought a threshold motion under s. 267.5(5)(b) of the Insurance Act arguing that the plaintiff had failed to establish a permanent serious impairment of an important physical, mental or psychological function.

The plaintiff presented testimony from himself, family members, and an occupational therapist but called no physician to provide medical evidence.

The court held that Ontario Regulation 461/96 requires evidence from a qualified physician addressing the nature, permanence, and seriousness of the impairment.

Lay testimony may only corroborate, not replace, the required medical evidence.

Because no physician’s evidence was adduced, the statutory threshold was not met and the plaintiff’s claim for non‑pecuniary damages was barred.

The defendants moved for judgment dismissing the plaintiff's personal injury action based on deemed admissions arising from the self-represented plaintiff's failure to respond to a Request to Admit.

The plaintiff, who was struck by the defendants' vehicle while crossing the street, failed to respond because he mistakenly believed opposing counsel would contact him to discuss it.

The court treated the plaintiff's stated disagreement with the admissions as a motion to withdraw them.

Applying the Antipas test, the court found the plaintiff's confusion akin to inadvertence and granted leave to withdraw the admissions regarding liability, allowing the trial to proceed.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

Costs were awarded on a partial indemnity scale to the respondents and cross-appellants, Father Reed and the Diocese, in the amount of $18,000.

The Phoenix group of insurers and the Ecclesiastical Insurance Office were each awarded costs of $5,549.02.

The plaintiff brought an action against a priest and a diocese for sexual assault.

The parties settled the main action, but a third party action continued regarding insurance coverage.

The trial judge found that the appellant insurer had a duty to defend the claims under its policy.

The insurer appealed, arguing the policy did not cover sexual assaults by an employee.

The Court of Appeal dismissed the appeal, finding the policy language broad enough to cover the claims.

On cross-appeal, the Court upheld the trial judge's allocation of defence costs among the insurers but allowed the cross-appeal regarding costs of the third party proceedings, holding that the insureds were entitled to costs on a solicitor-and-client basis due to the insurer's wrongful denial of the duty to defend.