Michael H. O'Brien

The moving party brought a motion for leave to appeal a decision of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $5,000 all inclusive.

The plaintiff sought costs of a motion for directions regarding the binding nature of an agreed summary of facts from a criminal proceeding.

The defendants sought their costs of the motion, and one defendant sought costs thrown away due to the adjournment of the trial.

The court reserved the costs of the motion to the trial judge, finding that the trial judge would be best placed to assess costs in the context of the final disposition.

The court dismissed the request for costs thrown away, as the adjournment was not the fault of any particular party.

The appellant insurer appealed an arbitrator’s decision that snow plow vehicles involved in a motor vehicle accident were “commercial vehicles” under Ontario Regulation 664 and therefore subject to the statutory loss transfer regime under the Insurance Act.

The appellant argued the definition required that a vehicle first be used primarily to transport goods, tools, or equipment before falling within the enumerated list following the phrase “and includes.” The court held that the enumerated list broadens the definition and captures vehicles such as those designed for construction or maintenance purposes even if they are not primarily used for transporting materials.

Applying a contextual and purposive approach to statutory interpretation, the court found the arbitrator correctly interpreted the regulation.

The appeal was dismissed and the arbitrator’s conclusion that the snow plows were heavy commercial vehicles subject to loss transfer was upheld.