Mark Edwards

Following successful appeals regarding the application of the implied undertaking rule to medical reports, the appellants sought costs.

The respondents argued that no costs should be awarded because the appeals involved a novel and complex question of law with conflicting decisions.

The Divisional Court rejected this argument, finding that the parties were pursuing their own disclosure interests, and awarded costs to the appellants on a partial indemnity scale.

The court fixed the costs for the various stages of the proceedings, ordering that they be payable at the end of the actions to avoid prejudicing the respondents' access to justice.

The plaintiffs were injured in motor vehicle accidents and commenced both accident benefit arbitration proceedings and tort actions.

In the tort actions, the defendants sought production of medical reports obtained during the arbitration proceedings.

The motions judges dismissed the requests, relying on the implied undertaking rule.

On appeal, the Divisional Court held that neither the deemed undertaking rule nor the implied undertaking rule protected the medical reports from disclosure.

The reports were highly relevant to the tort actions, and the plaintiffs had waived their privacy interests by putting their medical conditions in issue.

The appeals were allowed and the plaintiffs were ordered to produce the reports.

These appeals arose from two Ontario boating accidents involving deaths and serious injuries, and required the Court to determine the scope of Canadian maritime law, the constitutional applicability of provincial statutes in maritime negligence actions, and the proper limitation period for fatal accident claims.

The Court held that provincial superior courts have concurrent jurisdiction with the Federal Court over dependants’ maritime fatal accident claims under the Canada Shipping Act.

It established a four-part framework for assessing whether provincial statutes may apply in maritime negligence cases, emphasizing the core federal nature and required uniformity of maritime negligence law.

The Court judicially reformed Canadian maritime law to permit claims for loss of guidance, care and companionship and survival claims by estates, but held siblings could not qualify as dependants.

It further held that maritime collision claims were governed by the two-year limitation period in s. 572(1) of the Canada Shipping Act, and dismissed the appeals and cross-appeals with costs.

On a preliminary insurance coverage issue arising from a motor vehicle accident, the appellants challenged the exclusion of unmarried common law partners from accident benefits under the standard automobile policy mandated by provincial legislation.

The majority held that the 1980 policy definition of "spouse" did not include unmarried partners, but that the exclusion violated s. 15(1) of the Charter because marital status is an analogous ground of discrimination and the denial of benefits perpetuated disadvantage against non-marital family units.

The infringement was not justified under s. 1 because marital status was not a reasonably relevant marker of stable economic interdependence and less impairing alternatives were available.

The Court retroactively read in the broader 1990 statutory definition of "spouse" and remitted the action for trial.

The applicant was injured in a motor vehicle accident shortly after being terminated from his employment.

He received a severance package, including a $22,700 lump sum transferred to an RRSP.

The insurer deducted this amount from his no-fault weekly income benefits, arguing it was a payment for loss of income.

The arbitrator held that the severance payment was not a payment for loss of income under s. 12(4)(b) of the No-Fault Benefits Schedule because it was payable regardless of whether the applicant obtained re-employment.

The arbitrator also dismissed the insurer's preliminary motion for disqualification based on apprehension of bias, and denied the applicant's request for a special award, finding the insurer's position was based on a legitimate legal dispute.