Jeffrey Raphael

Following a jury trial in a motor vehicle personal injury action where the plaintiff recovered no damages and the action was dismissed, the court determined the defendants’ entitlement to costs.

The defendants sought significant costs awards, including substantial indemnity costs based on an unaccepted settlement offer.

The court held that Rule 49.10 did not apply because the plaintiff obtained no judgment.

Applying s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court confirmed that successful parties are generally entitled to costs but emphasized that awards must be fair and reasonable.

The requested amounts were found excessive, and the court fixed reduced partial indemnity costs payable by the plaintiff to each defendant.

Following a jury verdict awarding nil damages, the moving defendants sought a declaration that the plaintiff's claims for non-pecuniary loss and health care expenses were barred by the statutory threshold under the Insurance Act.

The court reviewed the Bill 198 threshold regime, including ss. 267.5(3) and 267.5(5) of the Insurance Act and ss. 4.2 and 4.3 of O. Reg. 461/96, and applied the three-part inquiry from Meyer v. Bright.

The court found the plaintiff had significant pre-existing osteoarthritis and degenerative changes, rejected the contention that the collision caused or accelerated the right knee and right shoulder surgeries, and held that any impairments did not substantially interfere with most usual activities of daily living.

The threshold motion was granted.

The appellant insurer appealed a decision finding that a homeowners policy exclusion for motorized land vehicles did not apply.

The insured accidentally started a fire while removing parts from an inoperable motor vehicle to use in a replica car he was building.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the exclusion did not apply because the assertions of negligence were not related to the ownership or use of the vehicles as motor vehicles.