Robert Besunder

The appellant appealed a motion judge's decision striking her application for declaratory relief as an abuse of process.

The appellant alleged that State Farm wrongly transmitted her confidential medical information outside Ontario without consent.

The Court of Appeal upheld the motion judge's finding that the application was duplicative of the appellant's pending action for statutory accident benefits and circumvented the comprehensive dispute resolution schemes under the Insurance Act and PIPEDA.

The appeal and a motion to adduce fresh evidence were dismissed.

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 dismissal of an application alleging privacy breaches and misrepresentations relating to the transfer of insurance assets and insured persons’ information, the court determined the appropriate costs award.

The unsuccessful applicant argued that no costs should be awarded because the matter raised issues of public interest and the law regarding enforcement of privacy rights was uncertain.

The court rejected those submissions, noting the seriousness of the allegations and the prior finding that the proceeding constituted an abuse of process.

Considering the factors under Rule 57.01 of the Rules of Civil Procedure and the respondents’ reduced claim for costs, the court exercised its discretion to award a fixed amount.

Costs were ordered payable to the respondents.

The moving parties (insurers) brought a motion to strike out an application seeking declaratory relief regarding alleged breaches of privacy and insurance legislation.

The responding party had commenced multiple other proceedings, including a tort claim, an accident benefits claim, and complaints to regulatory bodies.

The court granted the motion to strike, finding that the application was an abuse of process because declaratory relief would serve no practical purpose and the governing statutes provided their own mandatory procedures for resolving the disputes.

The court issued a consent order setting the timetable for the parties to deliver their costs submissions.

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 appellants sought to adduce fresh evidence and appealed a trial judgment finding the respondent entitled to 20 per cent of the net proceeds of sale of a property.

The court held that the proposed fresh evidence did not meet the criteria for admission, as most documents were available at trial and others were irrelevant to the issues on appeal.

The court rejected the argument that the trial judge imposed liability on an unpleaded basis, holding that the declaration of trust was evidence of the pleaded agreement.

The court also upheld the trial judge’s treatment of the calculation of net proceeds and the partial indemnity costs award.

The appeal and cross-appeal were dismissed, with no costs on either.

The plaintiff obtained judgment following a default trial arising from a brutal kidnapping, forcible confinement, sexual assault, aggravated sexual assault, threats, and physical assault.

The court held that the defendant was liable for the intentional tort of battery and under the Victim’s Bill of Rights, relying on the deemed admissions arising from default and the evidentiary record.

The court awarded $225,000 in general and aggravated damages, $75,000 in punitive damages, and substantial indemnity costs of $40,000 plus HST, emphasizing the extreme violence, ongoing psychological harm, and the need for denunciation and deterrence.

Pre-judgment interest on general damages was also ordered at 5% per annum commencing November 5, 2007.