Nawaz Tahir

The moving parties, Toufik Benhamiche and Kahina Bensaadi, brought a motion for leave to appeal the order of Perfetto J. dated February 21, 2024.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the responding parties in the fixed amount of $5,000, all inclusive.

The defendant brought a motion seeking an order for the plaintiff, Rafik Yasso, to undergo independent medical examinations (IMEs) by a neuropsychologist and a physiatrist.

The plaintiff opposed, citing past negative experiences with IME scheduling and the triggering of his anxiety/PTSD.

The court found that the defendant had a procedural and substantive entitlement to these examinations.

Despite the plaintiff's past difficulties, the court determined there was no compelling reason preventing his participation and that the prejudice to the defendant in proceeding to trial without responding medical evidence outweighed the plaintiff's inconvenience.

The motion was allowed, and the plaintiff was ordered to attend the IMEs, with no costs awarded due to shared responsibility for the difficulties.

The defendants Toufik Benhamiche and Kahina Bensaadi brought a motion challenging the Ontario Superior Court's jurisdiction over a tort and contract claim arising from a fatal speedboat accident in Cuba.

They sought an order recognizing lack of jurisdiction, or in the alternative, summary judgment on jurisdiction or a stay based on forum non conveniens.

They also sought summary judgment for Kahina Bensaadi and a declaration limiting damages to Cuban law.

The court found that Ontario had a real and substantial connection to the litigation based on the domicile and business operations of other defendants (Sunwing), and the contract being made in Ontario.

The court dismissed the moving parties' arguments regarding forum non conveniens, finding Ontario to be the clearly more appropriate forum, partly due to the unavailability of certain remedies in Cuba.

The motion for summary judgment was dismissed due to the moving parties' failure to file a statement of defence, and on the merits for Kahina Bensaadi.

The request to apply Cuban law was also deferred.

The moving parties brought a motion for leave to appeal the decision of Justice Tranquilli dated March 29, 2021.

The Divisional Court dismissed the motion for leave to appeal without costs, as no cost summaries were filed.

The defendant brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal and awarded partial indemnity costs to the responding plaintiff.

The defendants brought a motion to determine whether the plaintiff's disability pension benefits ("Union benefits") were deductible from his income loss claim under s. 267.8(1) of the Insurance Act, following a motor vehicle accident.

The court analyzed the nature of these benefits, comparing them to HOOP disability benefits, and concluded they were non-indemnity payments not expressly made deductible by the Act.

The motion was dismissed, ruling that the Union benefits were not deductible.

The appellant insurer appealed an arbitrator's decision in a priority dispute regarding Statutory Accident Benefits.

The arbitrator found that the appellant's notice of termination for non-payment of premiums was defective because it failed to include an address where the insured could pay the outstanding amount, as required by O. Reg. 777/93.

Applying the new standard of review framework from Vavilov, the Superior Court held that the appellate standard applied to statutory appeals from insurance arbitrations.

The court upheld the arbitrator's decision on a correctness standard, confirming that strict compliance with the statutory notice requirements is necessary to unilaterally terminate an insurance policy.

The appellant appealed orders dismissing her action and denying her motion to set aside the dismissal.

The lower court judge dismissed the action for failure to file notice of appointment of counsel or intention to act in person within 30 days of an order removing her former lawyer.

The Court of Appeal found the dismissal order deficient because it failed to include the required text of the applicable rules, the appellant had not been properly served with the motion, and no reasons were given for the draconian remedy.

The appeal court set aside both lower court orders and imposed a 14-day deadline for the appellant to file notice of appointment of counsel.

Following a three‑day civil trial, the plaintiffs obtained default judgment against one defendant while their claim against the other defendant was dismissed.

The court addressed competing submissions regarding costs.

The plaintiffs sought significant costs against the defaulting defendant, but the court found the claimed amount excessive given the straightforward nature of obtaining default judgment and reduced the award to reflect reasonable fees and disbursements.

The successful defendant sought substantial indemnity costs based on a pre‑trial offer to settle, but the court held that the offer to settle rule did not apply because the plaintiffs’ action against that defendant was dismissed entirely.

The court awarded that defendant partial indemnity costs at the upper end of the applicable hourly range and rejected the plaintiffs’ request that the defaulting defendant bear those costs.

Neighbouring homeowners sued after a residential fire originating in the defendant’s semi‑detached house damaged their property.

One defendant, who was alleged to have caused the fire by careless smoking, did not defend and was noted in default.

The court held that the alleged admission by that defendant to his father was inadmissible hearsay against the co‑defendant homeowner and could not be relied upon to prove causation.

Without admissible evidence establishing how the fire began, the plaintiffs failed to prove negligence on a balance of probabilities, and the fire was characterized as “accidental” under the Fire Protection and Prevention Act, 1997.

The homeowner was neither directly negligent nor vicariously liable for the alleged conduct of his adult son.

A food processing company sued a manufacturer of aseptic liner bags after over 1,200 containers of tomato sauce leaked and collapsed during warehouse storage, alleging defects in the bags’ side seams.

The defendant argued the failure resulted from the plaintiff’s use of oversized corrugated boxes, inadequate structural support, and multi-tier stacking during long-term storage.

Expert evidence conflicted on whether seam defects or packaging design and storage conditions caused the failures.

The court held the plaintiff had not proven on a balance of probabilities that the bags were defective and instead found the more likely explanation was the plaintiff’s choice of incompatible boxes and stacking methods.

The plaintiff’s claim was dismissed.

The defendant’s counterclaim for unpaid invoices was stayed due to the plaintiff’s Notice of Intention to make a proposal under the Bankruptcy and Insolvency Act.

The applicant sought a declaration that its commercial general liability insurer was obliged to indemnify it for amounts paid in settlement of personal injury claims arising from a motor vehicle accident involving a truck and attached trailer.

The applicant argued that concurrent causes existed, including negligent attachment of the trailer and negligent operation of the vehicle, triggering coverage under the CGL policy and a non‑owned automobile endorsement.

The court held that the alleged negligence arose from the ordinary use or operation of an automobile, including attaching and towing a trailer, and therefore fell within the policy’s automobile exclusion.

The court further found that no independent non‑automobile cause of liability existed and that the non‑owned automobile endorsement did not apply.

The application for indemnity was dismissed.