Robert S. Franklin

The applicant sought judicial review of a FSCO Delegate's decision upholding an arbitrator's finding that his entitlement to WSIB benefits precluded him from receiving statutory accident benefits (SABS).

The applicant argued the insurer was estopped from relying on his suspended licence to deny benefits and that the arbitrator erred in interpreting the onus under s. 59(2) of the SABS Schedule.

The Divisional Court dismissed the application, finding the Delegate's decision reasonable.

The insurer did not mislead the applicant, and the applicant failed to discharge his onus to prove his civil action was not commenced primarily for the purpose of claiming SABS.

The appellant gas station owner suffered business interruption and equipment damage when a cracked fill-pipe allowed water to contaminate its underground fuel storage tank.

The respondent insurer denied coverage under an all-risks policy, arguing the loss was not fortuitous.

At trial, the judge granted the insurer's motion for non-suit, finding the appellant failed to prove the exact cause of the crack via expert evidence.

On appeal, the Divisional Court held the trial judge erred in law.

The appellant only needed to adduce evidence that the loss was not expected in the ordinary course of business, which it did through testimony from an experienced contractor and the owner.

The appeal was allowed and judgment was entered for the appellant.

Following a civil jury trial arising from a motor vehicle accident involving an intoxicated driver and alleged commercial host over-service, the appellant bar challenged the trial judge’s decision to set aside the jury’s $0 award for future income loss and substitute his own assessment.

The Court of Appeal held that the common law and Rule 52.08 threshold for disregarding a jury verdict were not met because there was some evidence supporting the jury’s conclusion.

The court upheld the trial costs award, rejecting the argument that the successful plaintiff should have been deprived of costs.

On the cross appeal, the court rejected requests for a new trial based on counsel conduct and trial complexity, but held that the jury questions and instructions on apportionment of liability were legally flawed under the commercial host framework and the Negligence Act.

Rather than ordering a new trial, the court directed that apportionment be resolved by agreement or further written submissions, with no costs of the appeal and cross appeal.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario, which upheld an Arbitrator's finding that the respondent had a reasonable explanation for her delay in claiming statutory accident benefits.

The insurer argued there was no evidence that the respondent was psychologically unable to provide notice.

The Divisional Court dismissed the application, holding that the Director's Delegate applied the correct legal test and reasonably concluded that there was evidence of the respondent's impaired psychological capacity to pursue her claim.

The applicant sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario, which upheld an arbitrator's dismissal of her claim for statutory accident benefits.

The arbitrator found the applicant failed to prove her conditions were caused by a 1993 motor vehicle accident.

The Divisional Court dismissed the application, finding that the arbitrator did not ignore evidence and reasonably drew adverse inferences from the applicant's failure to call witnesses regarding her pre-accident health.

The appellant appealed the dismissal of her action for non-compliance with the governing limitation period.

She argued that the action should proceed because the motion judge did not find actual prejudice to the defendants, despite the statement of claim being served more than two years late.

The Court of Appeal dismissed the appeal, finding the motion judge properly considered the relevant factors, including prejudice and the complete lack of explanation for the delay by the appellant's solicitor.

The insurer appealed a judgment for the insured in an action for benefits under a sickness and accident policy.

The trial judge instructed the jury that because the insurer had accepted the claim and made some payments, it bore the legal burden of proof to establish that the insured was not totally disabled.

The Court of Appeal found this instruction to be an error, holding that the insured bore the legal burden of proof.

However, the appeal was dismissed as the misdirection did not result in any substantial wrong or miscarriage of justice.

The appellant insurer appealed a Divisional Court decision which found that the insurer's notice cancelling the insured's weekly income benefits was inadequate to trigger the two-year limitation period.

The Court of Appeal allowed the appeal, finding that the Director's Delegate had applied the correct 'clear and unequivocal' test for the notice.

Furthermore, the Court held that the Divisional Court erred in requiring the reasons for cancellation to be legally correct under section 24(8) of the Statutory Accident Benefits Scheme; the reasons merely need to be provided to allow the insured to decide whether to challenge the cancellation.

The applicant sought judicial review of a Director's Delegate's decision which found her claim for statutory accident benefits was statute-barred.

The Director's Delegate had concluded that the insurer's notice of refusal, while containing technical defects and incorrect reasons, was 'substantially clear' and triggered the limitation period under s. 281(5) of the Insurance Act.

The Divisional Court quashed the decision, holding that a notice of refusal must be strictly clear and unequivocal, and must provide the correct reasons for refusal to trigger the limitation period.

The court found that the Director's Delegate erred in law by applying a 'substantially clear' standard.

The defendants in a motor vehicle accident action settled their counterclaim with the plaintiffs' insurer for $6,000, executing a full and final release and filing a notice of discontinuance.

The defendants later sought leave to deliver a fresh counterclaim for contribution and indemnity, arguing the release did not bar the claim and seeking to set aside the notice of discontinuance.

The Master dismissed the motion.

On appeal, the Divisional Court upheld the Master's decision, finding that the proposed amendment was untenable in law due to the clear terms of the release.

The court also held that section 278(6) of the Insurance Act did not apply as the insurer had not made a payment or assumed liability, and there were no grounds to set aside the properly filed notice of discontinuance.