Richard J.T. Shaheen

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

The respondent was awarded costs of the appeal in the amount of $20,000, inclusive of disbursements and applicable taxes.

The appellant insurer appealed a jury verdict awarding the respondent damages for injuries sustained in a motor vehicle accident.

The appellant argued the trial judge erred by refusing to grant a mistrial after the respondent's counsel made improper comments during his closing address, by giving an inadequate correcting instruction, by allowing an expert to testify beyond his report, and by refusing to order an assignment of statutory accident benefits.

The Court of Appeal dismissed the appeal, finding the trial judge's correcting instruction adequately addressed the improper comments, the evidentiary ruling was fair, and the appellant failed to prove the jury's future care award mirrored the respondent's uncertain accident benefits entitlement.

Following a jury verdict awarding damages for injuries arising from a motor vehicle accident, the defendant insurer moved for declarations that the plaintiff must hold in trust and pay over certain future statutory accident benefits and collateral benefits pursuant to s. 267.8 of the Insurance Act.

The insurer argued that the jury’s award for future care costs overlapped with potential medical and rehabilitation benefits, raising concerns of double recovery.

The court held that deductions or trust obligations to prevent double recovery require clear proof that the plaintiff’s entitlement to collateral benefits is certain and that the tort award compensates the same losses.

Given uncertainty regarding the plaintiff’s future entitlement to statutory accident benefits and the extent to which the jury’s lump-sum award corresponded to benefits available under the accident benefits scheme, the evidentiary threshold was not met.

The requested declarations and related relief were therefore refused.

Following a jury trial for a motor vehicle accident where the plaintiff was awarded substantial damages, the defendant insurer brought a motion for a ruling that the plaintiff's claims did not meet the statutory threshold under the Insurance Act.

The court found that the plaintiff's chronic low back pain was caused by the accident and constituted a permanent serious impairment of an important physical function.

The court dismissed the defendant's motion, concluding that the plaintiff met the statutory threshold for non-pecuniary loss and future care costs.

The applicants sought a declaration of ownership by adverse possession over lands owned by the respondent agricultural society.

The application judge granted the declaration, finding that the respondent had abandoned the lands and could not rely on holding them for future development as a current use.

On appeal, the Court of Appeal allowed the appeal, holding that the application judge failed to properly apply the inconsistent use test.

The Court confirmed that holding lands for future development qualifies as a current use during the statutory period, and therefore the applicants' use was not inconsistent with the respondent's intended use.

The appellant insurer appealed an arbitrator's decision awarding the respondent enhanced non-earner benefits of $320 per week.

The respondent had completed high school less than a year before the motor vehicle accident and had worked in various unskilled labour positions.

The insurer argued that the respondent's employment reflected his education and training because those were the best jobs he could obtain in the labour market.

The Director's Delegate dismissed the appeal, finding that the arbitrator correctly focused on the job requirements and the respondent's education, and properly concluded that his unskilled employment did not reflect his high school education.

The applicant was injured in a motor vehicle accident and received non-earner benefits of $185 per week.

After 104 weeks, he sought an increased benefit of $320 per week under s. 12(3) of the Statutory Accident Benefits Schedule, arguing that his pre-accident employment did not reflect his education and training.

The insurer denied the increase, contending that his jobs as a general labourer and turkey catcher were consistent with his high school education.

The arbitrator found that the applicant had a basic secondary school education with an emphasis in art, and that his pre-accident jobs did not reflect this education and training.

The applicant was awarded the increased non-earner benefit of $320 per week, along with interest on the overdue amounts.

The applicant was injured in a motor vehicle accident and received income replacement benefits.

He was also convicted of assault arising from an altercation that occurred immediately prior to the accident.

The insurer terminated benefits and sought repayment, arguing the applicant was excluded under the criminal offence provisions of the Statutory Accident Benefits Schedule.

The arbitrator found that the assault continued at the time of the accident, triggering the exclusion.

The arbitrator rejected the applicant's arguments of waiver and estoppel, ordering the applicant to repay $6,487.19 in benefits to the insurer.

The insurer appealed an arbitrator's decision that the criminal offences exclusion in subsections 30(4) and (5) of the SABS-1996 did not apply to income replacement benefits payable after the insured's conviction for assault.

The Director's Delegate allowed the appeal, finding that the exclusion applies to benefits that would otherwise be payable both before and after a conviction.

The arbitrator's interpretation would produce absurd consequences and violate public policy by allowing a convicted person to receive benefits after being found guilty.

The appellant appealed an arbitrator's decision denying him further weekly benefits under the SABS-1994.

The appellant received "other disability benefits" for a partial inability to carry on a normal life, but benefits were interrupted for 28 weeks when his condition temporarily improved.

The insurer terminated benefits on the second anniversary of the accident because the appellant did not meet the "complete inability" test.

The Director's Delegate upheld the arbitrator's ruling that the 104-week transition period refers to calendar weeks, not weeks of benefits paid.

The Delegate also held that the appellant could not qualify for ongoing benefits by meeting the complete inability test at a later date, as the disability must continuously prevent the person from engaging in their ordinary activities from the 104-week mark.

The applicant was injured in a motor vehicle accident and subsequently convicted of assault for events occurring around the time of the accident.

The insurer terminated his income replacement benefits and sought repayment, arguing that subsections 30(4) and (5) of the Statutory Accident Benefits Schedule precluded him from receiving benefits due to his criminal conviction.

The arbitrator held that the exclusion in subsection 30(4) only applies to benefits payable during the period up to the time the charge is finally disposed of.

Since the applicant was seeking benefits for a period after his conviction, he was not precluded from receiving them.

The applicant was awarded the expenses of the preliminary issue hearing.

The appellant sold corn to the respondents, stating it was 'good corn'.

The corn contained toxic substances and caused damage to the respondents' pigs.

The trial judge found that the appellant's statement constituted a warranty that the corn was suitable for feeding to pigs, and awarded damages of $36,500.

The Court of Appeal dismissed the appeal, holding that it was open to the trial judge to conclude that the appellant assumed the risk that the corn would not be suitable for the respondents' pigs.

The applicant was injured in a motor vehicle accident and received weekly disability benefits from the insurer.

The insurer terminated benefits 104 weeks after the accident, arguing the disability test changed from partial inability to complete inability.

The applicant applied for arbitration, arguing the 104-week period should be extended because he was not partially disabled for a portion of that time, and that he later met the complete inability test.

The arbitrator held that the 104-week period runs continuously from the onset of disability, and because the applicant did not meet the complete inability test at the 104-week mark, he was not entitled to further weekly disability benefits.

The applicant, a self-employed farmer, was injured in a motor vehicle accident and received weekly income benefits from the insurer.

The insurer terminated benefits after 156 weeks, arguing the applicant did not meet the stricter test of disability under section 12(5)(b) of the Statutory Accident Benefits Schedule.

The arbitrator found the applicant was continuously prevented from engaging in suitable employment and remained entitled to benefits.

The arbitrator also accepted the applicant's accountant's calculation of gross weekly income, which treated the value of exchanged family labour as a ceasing business expense.

Finally, the arbitrator held that the insurer was not entitled to repayment of an initial overpayment, as the error resulted from the insurer's interpretation of the legislation rather than any material act or omission by the applicant.