Mark Wilson

The plaintiff sought leave to appeal an interlocutory order requiring her to post security for costs.

She argued the motions judge failed to properly consider her After the Event (ATE) Legal Expense Insurance as an asset in Ontario.

The Divisional Court dismissed the application, finding the motions judge did consider the ATE insurance as one of several factors and there was no good reason to doubt the correctness of the decision.

The court also declined to admit fresh evidence regarding the ATE insurance on the leave application.

The plaintiffs were injured in a motor vehicle accident caused by an intoxicated off-duty employee of the defendant employer.

The employee had consumed alcohol before, during, and after his shift, but the employer was unaware of his intoxication on the night in question.

The plaintiffs argued the employer owed them a duty of care because the employee was enrolled in an Employee Assistance Program for alcoholism.

The Court of Appeal held that the employer did not owe a duty of care to the plaintiffs, as the duty to provide a safe workplace does not extend to protecting the public from an employee's off-duty conduct.

The court also held that non-protected defendants are entitled to deduct collateral benefits from damage awards under section 267(1) of the Insurance Act.