Martin P. Forget

This was a costs decision following a jury verdict in an insurance coverage dispute arising from a commercial fire loss.

The plaintiff recovered the balance of an endorsement after the insurer denied liability despite an alleged promise to pay if a code-compliant structure was rebuilt.

The court held that full indemnity costs were not justified on the misconduct record, but gave elevated weight to indemnity, the insurer's serious misconduct, and a reasonable withdrawn offer to settle under Rule 49.13.

Costs were fixed at $200,000 plus HST and $50,000 in disbursements, and prejudgment interest was awarded at an averaged 2.15% rate over the ten-year period.

The appellant appealed a Licence Appeal Tribunal (LAT) decision denying his application for a catastrophic impairment designation and attendant care benefits following a motor vehicle accident.

The Divisional Court found that the LAT adjudicator's reasons were inadequate, conclusory, and failed to account for extensive expert medical evidence regarding the appellant's traumatic brain injury.

The court held that the adjudicator made factual findings without evidentiary support, particularly regarding the appellant's volunteer activities.

The appeal was granted, the LAT decision was quashed, and the matter was remitted for a fresh hearing before a different adjudicator.

The defendants brought a motion to adjourn the trial of a slip and fall action scheduled for March 2026.

The plaintiff, who claimed damages for chronic pain syndrome, failed to produce approximately 400 pages of medical records and update her oral discovery answers until weeks before trial.

The court found that the plaintiff breached her discovery obligations under the Rules of Civil Procedure.

To ensure trial fairness and allow the defendants to respond to the new evidence, the court granted the adjournment.

The applicant was involved in a motor vehicle accident and sought statutory accident benefits, including a determination of catastrophic impairment under Criterion 8 (mental and behavioural disorders).

The Tribunal found that the applicant did not sustain a catastrophic impairment, as she did not demonstrate marked impairments in three out of four domains of functioning.

The Tribunal preferred the evidence of the respondent's assessors, who found the applicant capable of living independently and managing daily activities.

The applicant's claims for attendant care benefits, housekeeping benefits, and various treatment plans were also dismissed, as she failed to prove they were reasonable and necessary or incurred in accordance with the Schedule.

The applicant sought reconsideration of a Tribunal decision finding she was not catastrophically impaired.

She argued the Tribunal breached procedural fairness by allowing the respondent to cross-examine its own expert neurologist and by rejecting the expert's 5% whole person impairment rating for headaches without notice.

She also argued the Tribunal misapprehended evidence regarding her incontinence.

The Vice-Chair dismissed the request, finding the applicant had notice of the respondent's challenges to the expert's report, the Tribunal was entitled to reject ratings not supported by the AMA Guides, and the evidence supported the finding that there was no post-accident exacerbation of incontinence.

The appellant insurer appealed a Licence Appeal Tribunal (LAT) decision granting attendant care benefits to the respondent, who suffered from severe autism and was injured in a minor motor vehicle accident.

The appellant argued there was a reasonable apprehension of bias because the LAT adjudicator had a history of, and continued, public advocacy for autism caregivers after his appointment.

The Divisional Court agreed, finding that the adjudicator's ongoing advocacy efforts following his appointment raised a reasonable apprehension of bias in a case specifically determining attendant care benefits for an autistic claimant.

The appeal was granted and the matter remitted to the LAT for a new hearing before a different adjudicator.

The applicant sought a determination of catastrophic impairment and entitlement to various treatment plans following a 2019 motor vehicle accident.

The Licence Appeal Tribunal found that the applicant sustained a catastrophic impairment under Criterion 8 (mental and behavioural disorders), noting marked impairments in social functioning, concentration, persistence and pace, and adaptation.

However, the Tribunal denied all claimed treatment plans because the applicant failed to direct the panel to medical evidence supporting their reasonableness and necessity.

The respondent's claim for repayment of previously funded services was also dismissed for lack of evidence.

An appeal from a trial judgment dismissing claims by a steel company against a former employee who established a competing business.

The trial judge found that the employee was not a fiduciary and therefore could not breach fiduciary duties.

Although the employee breached employment duties of good faith, loyalty, and fidelity by misappropriating business documents (constituting conversion), the trial judge found no damages were proven.

The appellate court dismissed the appeal, finding the trial judge's findings were open to her on the record and that her reasons were adequate for meaningful appellate review.

The applicant sought a determination that he sustained a catastrophic impairment as a result of a motor vehicle accident, along with entitlement to various attendant care benefits and treatment plans.

The Licence Appeal Tribunal evaluated the applicant's impairments under Criterion 7 (Whole Person Impairment) and Criterion 8 (mental and behavioural disorders).

The Tribunal rejected several of the applicant's physical impairment ratings due to a lack of causal evidence and methodological flaws, concluding the applicant did not meet the 55% WPI threshold.

Under Criterion 8, the Tribunal found the applicant had only mild impairments in activities of daily living and social functioning, failing to meet the threshold of three marked or one extreme impairment.

As the applicant was not catastrophically impaired and had exhausted his non-CAT limits, the claims for attendant care and treatment plans were dismissed.

The applicant sought statutory accident benefits following a motor vehicle accident, claiming catastrophic impairment under Criterion 7.

The respondent denied the benefits.

The Tribunal found the applicant was not catastrophically impaired, as her Whole Person Impairment rating was 48%, falling short of the 55% threshold.

The Tribunal rejected the WPI ratings for incontinence and headaches provided by the respondent's own expert, finding the incontinence was pre-existing and did not worsen post-accident.

Claims for psychological services, case management, interest, and a section 10 award were also dismissed.

The Tribunal initiated a review of an initial decision and a reconsideration decision under Rule 18.5 of the Licence Appeal Tribunal Rules.

The Vice-Chair found that the adjudicator in the initial hearing committed a material breach of procedural fairness by admitting the respondent's expert medical reports without requiring the expert to attend for cross-examination.

Because the adjudicator relied heavily on these reports to deny several treatment plans, the breach was material.

Both the initial and reconsideration decisions were cancelled, and the matter was sent for a rehearing.

The appellant appealed and sought judicial review of a Licence Appeal Tribunal decision that denied her catastrophic impairment designation and income replacement benefits following a motor vehicle accident.

The appellant argued that the Vice-Chair provided insufficient reasons, relied on issues not raised in the denial letters, denied her procedural fairness, and made unreasonable findings of fact.

The Divisional Court dismissed the appeal and application for judicial review, finding that the Vice-Chair provided comprehensive reasons, properly applied the 'but for' test for causation, afforded procedural fairness, and made reasonable findings based on the evidence.

This costs decision follows the trial judgment in a motor vehicle insurance dispute.

The court addresses the adjustment of the judgment for a Pierringer Agreement, calculation of prejudgment interest, and the appropriate scale and quantum of costs.

The court finds that the net damages to be paid by Economical are $13,008.86, with prejudgment interest of $1,292.14, and costs awarded on the Small Claims Court scale, totaling $7,909.26.

The decision discusses the application of Rule 49 offers, proportionality, and the policy behind limiting costs where the claim could have been brought in Small Claims Court.

The plaintiff, Shawn Balla, brought a motion to lift the stay of his action imposed by section 17 of the Crown Liability and Proceedings Act.

The motion was heard on January 7, 2025.

The court found that Balla met the test for leave under subsection 17(7) of the Act, establishing both good faith and a reasonable possibility of success in his claim of bad faith against certain defendants.

The court granted leave against those defendants who wrote "responsive" on the Health Care Observation Forms, allowing the action to proceed against them, and provided directions for further disclosure and amendment of the statement of claim.

The appellant appealed a Licence Appeal Tribunal (LAT) decision denying certain statutory accident benefits.

The Divisional Court found that the LAT adjudicator denied the appellant procedural fairness by unilaterally separating her hearing from her mother's, drastically reducing the scheduled hearing time without adequate notice, and refusing to allow cross-examination of the respondent's occupational therapist whose report had been materially altered by an assessment company.

The appeal was allowed, and the matter was remitted for a new hearing before a different adjudicator.

The trial concerned a third-party claim by the defendant, Cristy Mitton, against the Ministry of Transportation (MTO) and its contractor, Carillion Canada Inc., alleging negligent winter maintenance of Highway 41.

Mitton had previously settled the main action with the plaintiff, Ronald Busch, admitting 1% liability.

The court found that Highway 41 was in a state of non-repair due to being partially snow-packed, and this condition caused Mitton to lose control.

However, the MTO successfully discharged its onus by proving its winter maintenance operations were reasonable, including the decision to use salt despite low temperatures, as it was a judgment call aimed at achieving bare pavement.

The court dismissed the third-party claim, finding no liability on the MTO.

The respondent insurer requested a reconsideration of a Tribunal decision finding the applicant catastrophically impaired.

The insurer alleged a reasonable apprehension of bias because the hearing adjudicator had a background in autism advocacy, which was relevant to the causation analysis of the applicant's impairments.

The Tribunal dismissed the request, finding the insurer improperly waited until after an unfavourable decision to raise the bias allegation.

Furthermore, the adjudicator's subject matter expertise did not displace the strong presumption of impartiality.

The insurer's remaining arguments regarding factual errors were dismissed as mere disagreements with the Tribunal's weighing of evidence.

The Plaintiffs brought a motion to correct misnomers and add several corporate entities as defendants in an action stemming from a fire.

The motion sought to correct the name of "Cooper Lighting Internacional, S. de R.L. de C.V." to "Cooper Lighting de Mexico S. de R.L. de C.V." and to add "Cooper Lighting LLC""Cooper Lighting Canada Limited""SLP Lighting LLC""Koller Enterprises", and "David Koller".

Applying the principles of misnomer from Loy-English, the court found that the "litigation finger" pointed at the Cooper Lighting entities and SLP Lighting LLC, allowing their addition/correction despite delays.

However, the requests to add Koller Enterprises and David Koller were dismissed due to insufficient evidence of their direct involvement as manufacturers or distributors.

The court exercised its discretion to grant the amendments, noting the lack of non-compensable prejudice to the proposed defendants and shared responsibility for litigation delays.

The appellant, Layla Hassan, appealed a judgment concerning Sun Life Assurance Company of Canada.

The Court of Appeal for Ontario, upon review of the materials and with the consent of both parties, dismissed the appeal without costs.

This is a costs endorsement following a trial where the plaintiff, Titus Steel Company Limited, was largely unsuccessful in its claims against the defendants, Wayne Robert Hack and his companies.

The primary issue at trial was whether Mr. Hack was a fiduciary and breached obligations by starting a competing business, which the court found he was not.

The plaintiff's only success was minimal, related to the taking of documents by Mr. Hack, which was easily proven.

The defendants, as the successful party, were presumptively entitled to costs.

They sought substantial indemnity costs due to unproven allegations of dishonesty, but the court declined to award them, citing the "rare and exceptional" nature of such awards and the defendants' own concerning conduct regarding the documents.

The court awarded partial indemnity costs to the defendants, fixing the quantum at $161,264.