Michael J. Winward

The plaintiff brought a slip-and-fall action after falling on a steep municipal sidewalk covered by fresh snow over hidden ice beside a deteriorated pedestrian handrail.

Liability turned on whether the municipality's winter maintenance failures amounted to gross negligence under s. 44 of the Municipal Act and whether late notice was excused.

The court found prolonged failures to clear, salt, or sand a busy steep sidewalk, combined with the unusable handrail, constituted gross negligence.

The plaintiff was found careful, not contributorily negligent, and her delayed notice was excused because she reasonably waited to see whether her symptoms would resolve and the municipality suffered no prejudice.

The insured was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them.

The trial judge found the termination notice was inadequate and ordered ongoing benefits.

On appeal, the Court of Appeal held that an inadequate notice does not entitle an insured to benefits in perpetuity; the insured must still prove ongoing disability.

The Court upheld the trial judge's finding that the insured was no longer disabled by the fall of 1998.

However, the Court agreed that the insured's transition from part-time to full-time work shortly before the accident entitled her to a higher benefit calculation under s. 9(2) of the SABS.

The appellant owner leased a truck to a lessee who was expressly prohibited from driving it under the lease terms and an excluded driver endorsement.

The lessee drove the truck and was involved in a single-vehicle accident, injuring the respondent passengers.

The owner appealed a motion judge's finding that it was vicariously liable under s. 192(1) of the Highway Traffic Act.

The Court of Appeal dismissed the appeal, holding that consent to possession is distinct from consent to operate.

By leasing the vehicle, the owner consented to the lessee's possession, and the owner cannot contract out of its statutory vicarious liability.

The plaintiff was seriously injured when struck by a motor vehicle driven by an impaired driver who had been drinking at a university pub.

The jury found the driver 70% liable and the pub 30% liable, awarding general, aggravated, and punitive damages, but dismissing the family members' claims.

On appeal, the Court of Appeal upheld the liability apportionment and general damages, but struck the separate aggravated damages award.

The Court affirmed that punitive damages are available in negligence actions for impaired driving but reduced the quantum from $100,000 to $20,000.

The Court also allowed the family members' appeal, awarding them damages under the Family Law Act.

On an appeal from a Rule 21 determination in a fatal motor vehicle case, the court held that family members' independent nervous shock claims were barred by s. 266 of the Insurance Act because the claimants themselves did not meet the statutory threshold.

However, the majority held that s. 61(1) of the Family Law Act permits recovery for a family member's pecuniary loss in the form of lost income resulting from the death, and is not confined to loss of expected financial benefits from the deceased.

Because the trial judge later took the opposite view and made no necessary factual findings on causation and loss, the trial judgment was set aside and a new trial ordered on the loss of income claim.

No costs were awarded because success was divided.

Parents appealed from a trial judgment arising out of their son's death in a motor vehicle accident.

The court held that awards under s. 61(2)(e) of the Family Law Act for loss of care, guidance and companionship were low but within range and should not be disturbed.

Applying the deduction analysis under s. 267 of the Insurance Act, the court held that only statutory death benefits, and not no-fault wage-loss or disability benefits, were deductible from those awards because the death benefits were akin to the compensable loss.

The court also held, by reference to the companion appeal, that a loss of income claim under s. 61(1) could proceed and ordered a new trial on that issue.

The applicant was injured in two motor vehicle accidents and sought statutory accident benefits for medical and rehabilitation expenses, including chiropractic care, YMCA fees, psychological treatment, travel expenses, and medications.

The insurer denied these claims.

The arbitrator found that the chiropractic care, YMCA fees, travel expenses to out-of-town clinics, and medications were reasonable and payable.

The claim for psychological treatment was denied due to lack of corroborating evidence.

The arbitrator also awarded a $1,000 special award under section 282(10) of the Insurance Act, finding the insurer unreasonably withheld payment for benefits that should have been paid pending dispute resolution under section 6(7) of the Schedule.