Kevin S. Adams

The court dismissed the defendants’ motion for security for costs against Icon Wheelchairs Canada, finding that the delay in bringing the motion and the arguable merits of the plaintiff’s claims made such an order unjust.

The court also fixed costs for the discontinued action by Icon Wheelchairs Inc., but stayed payment pending the outcome of the defendants’ counterclaim.

The decision provides a detailed analysis of the legal framework for security for costs, the impact of delay, and the assessment of the merits of the underlying claims.

The court convened a case conference for four related product liability actions involving fires allegedly caused by defective ventilation units.

After four years of case management, the court discovered that counsel for the defendant had failed to disclose numerous other actions across the province involving the same parties and identical issues, including one that had already proceeded to trial.

Citing counsel's lack of candor and repeated failure to comply with court orders, the case management judge struck the actions from the trial list and declined to continue case managing them.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action regarding a defective boiler system installation, arguing the claim was statute-barred by the two-year limitation period.

The plaintiff argued it did not discover the fundamental incompatibility of the boiler systems until it received a draft engineering report in July 2015, having previously relied on advice that the issues were minor operational problems.

The court dismissed the motion, finding a genuine issue for trial regarding when the plaintiff had actual or constructive knowledge of the material facts giving rise to the claim, particularly given the plaintiff's reliance on the defendants' professional advice.

This endorsement addresses the protracted litigation of three third-party actions arising from fire losses, where the defendant Venmar Ventilation Inc. (third-party plaintiff) seeks payment from Fasco Industries Inc. (third-party defendant) for alleged defects in a motor.

The case management judge expressed frustration over the slow pace and non-compliance with previous court orders.

The judge issued new orders to compel both parties to complete outstanding productions, file trial records, and deliver expert reports to advance the matters to trial.

The applicant, Zurich Insurance Company Ltd., appealed an arbitration decision that found a collision occurred between vehicles insured by Zurich and The Personal Insurance Company, and ordered Zurich to indemnify The Personal for accident benefits paid.

The arbitrator had found, on a balance of probabilities, that contact occurred, despite an expert report suggesting otherwise, relying on witness statements and identifying deficiencies in the expert report.

The Superior Court reviewed the arbitrator's decision on a standard of reasonableness, finding it was a factual determination.

The court dismissed the appeal, concluding the arbitrator's decision was reasonable and fell within a range of acceptable outcomes.

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.

The plaintiffs brought a motion under Rule 34.15 of the Rules of Civil Procedure seeking an order compelling a defendant to answer questions refused during an examination for discovery and to attend for a further discovery.

The action arose from a motor vehicle collision in which the plaintiffs alleged negligence, impairment, and negligent entrustment of a vehicle by the corporate defendant.

The court considered the relevance and proportionality of various refused questions relating to the defendant driver’s licensing history, the corporate defendant’s knowledge of his driving record, alcohol consumption prior to the collision, and identification of potential witnesses.

Applying Rules 31.06 and 29.2.03, the court held that most questions were relevant to the pleadings and properly discoverable.

The defendant was ordered to answer specified questions and provide additional witness information.

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.

The defendants brought a Rule 21.01 motion seeking an order barring the plaintiff from advancing personal injury damages arising from the death of her dog, arguing that psychiatric injury to the owner was not reasonably foreseeable and was too remote in law.

The plaintiff alleged negligent dispensing of medication caused the dog’s death and resulted in severe emotional trauma, nervous shock, and economic loss.

The court held it was not plain and obvious that the damages were unrecoverable and that issues of foreseeability, duty of care, and psychiatric injury required determination on a full evidentiary record.

The motion to strike the personal injury claims was dismissed.

However, the court granted the defendants’ alternative request for further examination for discovery and related production concerning newly disclosed economic loss reports.

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 plaintiff was injured when she was dragged by a car and then struck when the driver reversed.

The driver's insurer denied coverage, arguing the driver's actions were intentional and thus excluded under s. 118 of the Insurance Act.

The motion judge granted summary judgment, finding the insurer had a duty to defend and indemnify the driver and his parents, and awarded full indemnity costs to the insureds.

The Court of Appeal dismissed the insurer's appeal, holding there was no genuine issue requiring a trial regarding the driver's intent, as the evidence showed the harm was not intentional.

The court also upheld the duty to defend and the costs awards.

Following the dismissal of 42 consolidated motions for leave to appeal costs awards in 37 class actions, the respondent insurers sought costs totalling $345,349.36.

The Court of Appeal assessed the bills of costs submitted by various law firms representing the insurers.

Applying the principle that costs must be fair and reasonable rather than a strict mathematical calculation of hours times rates, the Court reduced the amounts claimed, noting that the complexity was procedural rather than legal or factual.

The Court fixed the total costs payable to the insurers at $141,645.26.

The appellants and the Law Foundation of Ontario sought leave to appeal costs orders made by the case management judge following the dismissal of several proposed class actions against automobile insurers.

The motion judge had awarded costs to the successful insurers, including substantial indemnity costs where the plaintiffs persisted with unsubstantiated allegations of fraud and deceit to overcome limitation periods.

The Court of Appeal dismissed the application for leave to appeal, finding no error in principle in the motion judge's exercise of discretion regarding entitlement or scale of costs.

The appellant appealed the dismissal of its motion for summary judgment, arguing the respondents' action was statute-barred.

The respondent was injured in a motor vehicle accident and commenced an action for both pecuniary and non-pecuniary damages more than two years after discovering her pecuniary loss, but within two years of discovering her injuries met the statutory threshold for non-pecuniary damages.

The Court of Appeal held that under the Bill 59 insurance regime, the legislature created separate causes of action for different heads of damages.

Therefore, the non-pecuniary damage claim was not statute-barred, and the appeal was dismissed.