7 total
A summary judgment order granted on the mistaken premise of party consent was set aside.
The plaintiff was injured in a motor vehicle accident and sued his insurer, Unifund, under the unidentified motorist provisions of his automobile insurance policy.
Unifund brought a summary judgment motion to dismiss the claim on the basis that the identity of the owner and driver of the offending vehicle were known.
The motion judge granted the order on the mistaken premise that all parties had consented to it.
The plaintiff subsequently brought a clarification motion seeking to estop the defendants from raising identity defences at trial.
The Court of Appeal allowed the plaintiff's appeal, finding that the summary judgment motion was made on an erroneous basis and that taking "no position" on a motion is fundamentally different from consenting to it.
The court set aside all orders and dismissed the summary judgment motion without prejudice to Unifund's right to renew it.
Motion for interim expenses for catastrophic impairment rebuttal reports dismissed as not reasonable and necessary.
The applicants, injured in a 2008 motor vehicle accident, sought an interim order for funding of catastrophic impairment rebuttal reports in the amount of $26,352.00 each.
The insurer had partially approved the treatment plans for $8,000.00 per applicant based on a prior pre-hearing agreement.
The arbitrator found that the claim for funding fell under the 1996 Schedule, which restricts the insurer's funding obligation to portions of the report relevant to the denial.
Applying the Bernicky criteria, the arbitrator concluded the requested interim expenses were not shown to be reasonable and necessary for the conduct of the arbitration at this stage, leaving the issue of the additional assessments and their admissibility to the hearing arbitrator.
The motion was dismissed.
Insurer cannot use same counsel for accident benefits and tort claims without maintaining a privacy firewall.
The plaintiff was injured in a motor vehicle accident and claimed both statutory accident benefits and tort damages.
The insurer, which insured both the plaintiff and the defendant, denied coverage alleging a staged accident.
The insurer retained the same law firm to defend it in the accident benefits arbitration and to defend the tort action, providing the law firm with the plaintiff's confidential accident benefits file without consent.
The plaintiff successfully moved to remove the law firm as solicitor of record due to a conflict of interest.
The insurer appealed to the Divisional Court.
The Divisional Court dismissed the appeal, holding that an insurer owes a duty of good faith and must maintain a privacy 'firewall' between its accident benefits and tort departments.
Retaining the same counsel and sharing confidential information without consent created an irreconcilable conflict of interest.
Insurer awarded partial expenses for successful defence of conflict of interest motion, reduced due to public interest.
The applicant brought a preliminary motion to remove the insurer's counsel due to an alleged conflict of interest, which was dismissed.
The insurer sought its expenses of $3,378.99 for the motion.
The arbitrator found that the insurer was not entirely successful, as its request to stay the motion was denied, warranting a 20% reduction.
The arbitrator further reduced the insurer's costs by 40% because the applicant's motion was not unnecessary given conflicting court decisions, the issue was of public interest, and the applicant was impecunious.
The insurer was awarded $1,297.38 in expenses, payable at the conclusion of the hearing on the merits.
Motion to remove insurer's counsel for conflict of interest denied; stay of motion also denied.
The applicant brought a motion to remove the insurer's counsel from the arbitration proceeding, alleging a conflict of interest because the same law firm represented the insurer in both the accident benefits claim and the tort action.
The insurer requested a stay of the motion pending a Divisional Court appeal on the same issue in the tort action.
The arbitrator denied the stay, finding it would cause unnecessary delay.
On the conflict issue, the arbitrator held that the law firm was not in a conflict of interest, as there was no prior solicitor-client relationship with the applicant, and the insurer was not required to retain separate counsel for the accident benefits and tort proceedings.
Arbitration for catastrophic impairment allowed to proceed despite pending civil action for non-earner benefits.
The applicant, injured in a 2003 motor vehicle accident, sought a determination of catastrophic impairment at the Financial Services Commission of Ontario.
The insurer argued the arbitration should be stayed because the applicant had a pending 2005 court action for non-earner and medical benefits, and the issues should be joined to avoid a multiplicity of proceedings.
The arbitrator found that the issues in the arbitration and the civil action were distinct, with different legal tests and relief sought.
The arbitrator concluded there was no risk of undue duplication, delay, or inconsistent results, and allowed the applicant to proceed with the arbitration.
Appeal from dismissal of action for delay dismissed as appellant failed to explain delay.
The appellant appealed a motion judge's discretionary decision to dismiss his action for delay at a status hearing.
The Court of Appeal found no basis to interfere, noting the appellant failed to provide an acceptable explanation for the delay or demonstrate an absence of prejudice to the respondent regarding his claim for long-term disability benefits.
The appeal was dismissed, and leave to appeal the costs award was denied.
