Neil Colville-Reeves

The moving parties brought a motion for leave to appeal an order of the lower court dated March 28, 2022.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay $5,000 in all-inclusive costs to the responding party.

The applicant was involved in a motor vehicle accident and sought a determination of catastrophic impairment due to a mild traumatic brain injury and psychological impairments.

The Licence Appeal Tribunal found that the applicant did not meet the criteria for catastrophic impairment under Criterion 6 (Glasgow Outcome Scale) because she maintained some independence and employment.

However, the Tribunal concluded that the applicant sustained a marked impairment in adaptation under Criterion 8 due to her somatic symptom disorder and cognitive challenges.

The Tribunal awarded attendant care benefits of $1,561.89 per month, various treatment plans, and interest, but denied the claim for 24/7 attendant care and a special award under Regulation 664.

The plaintiff, an elderly homeowner, brought a motion to continue a Mareva injunction against her contractor, hold the proceeds of the sale of her home in court, and set aside a default judgment obtained by a mortgagee.

She alleged that the defendants conspired to defraud her by charging exorbitant amounts for a home renovation funded by unconscionable high-interest mortgages.

The court found a strong prima facie case of fraud based on the significant discrepancy between the quoted cost and the amount paid for the renovations.

The court continued the Mareva injunction until the contractor posted $500,000 in security, ordered the sale proceeds to remain in court, and set aside the default judgment, allowing the plaintiff to defend the mortgage action on the merits.

At the start of a motion for a Mareva injunction, a journalist requested permission to record the proceeding with his own audio recording device pursuant to s. 136(2)(b) of the Courts of Justice Act.

The court denied the request, finding that while the Consolidated Provincial Practice Direction permits media to use electronic devices for notetaking, this is subject to the presiding judge's discretion under the Act.

Because an official court reporter was present to provide a complete and accurate recording, the court held there was no need for a second recording by the media.

The plaintiffs, owners of a comic book store and a hobby shop, sued the defendant contractors for damages after a water main ruptured during construction, flooding their basements and destroying inventory.

The court found that the plaintiffs could not sue under the contract between the municipality and the defendants, as the exception to privity of contract only operates defensively.

However, the court found the defendants liable in negligence for failing to use alternate backfill or delay compaction when undermining the old, fragile water main.

The court awarded damages of $125,000 to the comic book store and $88,850.50 to the hobby shop, preferring the defendants' expert valuation of the destroyed comic books as random overstock.

The defendant R.B. & R. Cartage Inc. ("RB&R") brought a motion to dismiss the action for delay and for the plaintiffs' failure to comply with a 2018 court order.

The action arose from an oil spill in 2004.

The court found that the plaintiffs were not in breach of the order to set the action down for trial, as a trial record had already been filed.

While the plaintiffs failed to serve expert reports or bring a productions motion, these defaults did not warrant dismissal.

Applying the test for dismissal for delay under Rule 24.01, the court determined that the delay was not intentional and that the plaintiffs rebutted the presumption of prejudice, as relevant medical evidence was available and liability had been admitted.

The motion to dismiss was denied, and the plaintiffs were directed to file an amended trial record to proceed to trial.

Two consolidated appeals concerning the standard of review applicable to insurance arbitral decisions resolving priority disputes under the Statutory Accident Benefits Schedule (SABS).

The first appeal involved a claimant listed as an excluded driver on his parents' policy who was injured as a passenger in another vehicle.

The second involved a claimant similarly listed as an excluded driver who was injured while driving an uninsured motorcycle.

The central issue was whether excluded drivers could qualify as "insured persons" under the SABS definition and thus trigger priority coverage under their parents' policies.

The Court of Appeal held that the appropriate standard of review for such arbitral decisions is reasonableness, not correctness, and that arbitrators' interpretations of the SABS and insurance policies within their specialized expertise warrant deference.

The appellant, who was catastrophically impaired in a motor vehicle accident, claimed attendant care benefits for services provided by his daughter.

The daughter worked full-time at a youth facility.

The Arbitrator found that the services she provided in her employment were not similar enough to the convalescent care she provided to her father, and therefore the expenses were not 'incurred' under s. 3(7)(e)(iii)(A) of the SABS.

The Director's Delegate dismissed the appeal, holding that the Arbitrator's conclusion was a finding of fact not subject to review on appeal.

The appellant was injured in a motorcycle accident and sought a determination of catastrophic impairment.

The arbitrator found the appellant had a 49% Whole Person Impairment (WPI) by only considering physical neurological impairments and excluding psychological impairments to avoid double counting.

On appeal, the Director's Delegate held that the arbitrator erred in law by failing to combine the physical and psychological impairments.

When combined, the WPI totaled 59%, exceeding the 55% threshold.

The appeal was allowed in part, declaring the appellant catastrophically impaired, while upholding the denial of attendant care benefits and a special award.

The applicant sought income replacement benefits, medical benefits, and a determination of catastrophic impairment following a 2008 motor vehicle accident.

The arbitrator dismissed the claims, finding the applicant failed to prove a complete inability to engage in employment for the IRB claim.

The medical benefit claim was not properly linked to the 2008 accident.

The catastrophic impairment claim failed because the applicant's assessments did not properly account for pre-existing conditions as required by the AMA Guides, and the evidence did not establish a marked impairment resulting directly from the 2008 accident.

Following earlier rulings where the plaintiff was substantially successful on a motion, the court determined the quantum of costs.

The plaintiff sought partial indemnity costs of $7,134.94, while the defendant argued each party should bear their own costs or that the hours claimed were excessive due to overlap with a co-defendant.

The court found the plaintiff's claimed hourly rate and time spent to be reasonable, noting the aggressive approach taken by the defendant.

The court awarded the plaintiff $7,134.94 in costs, to be set off against amounts owed under the mortgage.

Matthew B, an excluded driver under his parents' Dominion policy, was injured while driving an uninsured motorcycle.

Belairdirect, insurer of the other vehicle, sought to establish priority for accident benefits.

An arbitrator found Matthew B to be an "insured person" under Dominion's policy but felt bound by a prior Superior Court decision (Dominion v. State Farm) to rule in favour of Belairdirect.

Belairdirect appealed.

The Superior Court, applying a reasonableness standard of review to the arbitrator's underlying analysis, found the arbitrator's initial conclusion that Matthew B was an "insured person" under the Dominion policy to be reasonable.

The court overturned the arbitrator's final decision, holding that Dominion has first priority to respond to Matthew B's accident benefits claim.

Following a summary judgment ruling enforcing a settlement agreement, the parties disputed the calculation of property taxes and the applicable interest rate on the outstanding amount.

The court held that 'property tax' includes water and garbage charges.

The court further held that the original mortgage contract interest rate of 6.45% applies to the outstanding settlement amount, rather than the Courts of Justice Act rates, as the settlement compromised claims under the mortgage but did not intend to provide an interest-free period upon default.

The plaintiff's house was severely damaged by fire shortly after he entered into a settlement agreement with his mortgagee.

The mortgagee had previously placed fire insurance on the property and charged the premiums to the plaintiff.

Following the fire, the mortgagee refused to process an insurance claim, arguing it suffered no direct loss until it took possession and realized on its security.

The defendants brought summary judgment motions to dismiss the plaintiff's claim for damages.

The court dismissed the mortgagee's motion, finding it had a duty of good faith to process the claim and the plaintiff had standing to enforce this obligation.

The court granted the mortgagee's counterclaim for possession and enforcement of the settlement agreement, directing a process to resolve the outstanding insurance and valuation issues.

The applicant was injured in a motorcycle accident and sought a determination that he sustained a catastrophic impairment, along with claims for attendant care benefits and a special award.

The arbitrator evaluated competing medical assessments and preferred the insurer's experts, finding the applicant's combined physical and psychological impairments amounted to 49% Whole Person Impairment, falling short of the 55% threshold.

The claim for attendant care benefits was dismissed as the applicant failed to demonstrate an economic loss incurred by his wife and medical assessments indicated he was independent in self-care.

The request for a special award was denied because the insurer had not unreasonably withheld benefits.

The applicant was ordered to pay the insurer's hearing expenses.

The Applicant was catastrophically injured in a motor vehicle accident and sought $75,461.75 in attendant care benefits for services provided by his daughter, a child and youth worker.

The Insurer denied the claim.

The Arbitrator found that the daughter did not sustain an economic loss, her employment as a child and youth worker was not analogous to providing attendant care to her father, there was no legal obligation to pay her, and the services were not reasonable and necessary given the availability of other family members.

The claim for attendant care benefits was dismissed.

The applicant, having successfully obtained a declaration that the respondent insurer had a duty to defend, sought costs of the application on a substantial indemnity basis.

The applicant argued that the respondent's position was contrary to established law and that the respondent caused undue delay.

The court found that while there were some delays, they did not warrant substantial indemnity costs.

Costs were awarded to the applicant on a partial indemnity scale in the amount of $18,000 inclusive of disbursements and HST.

The applicant construction contractor sought a declaration that an insurer owed it a duty to defend as an additional insured under a project‑specific commercial general liability policy issued to a subcontractor.

The underlying action involved a pedestrian trip‑and‑fall allegedly caused by a sunken paver installed during a streetcar island construction project.

The insurer argued the policy only applied to liability arising from the subcontractor’s operations and that the pleadings did not allege such liability.

The court held that the pleadings contained undifferentiated negligence allegations against all defendants and could potentially attribute liability to the subcontractor’s work.

Applying established duty‑to‑defend principles, the court found that any ambiguity must be resolved in favour of the insured and concluded the insurer had a duty to defend.

The applicant was injured in a motor vehicle accident and applied for income replacement benefits from his automobile insurer.

He was also receiving $2,000 per month in disability benefits from a Manulife personal accident disability insurance policy.

The insurer argued these benefits were deductible as payments for loss of income under an income continuation benefit plan pursuant to the Statutory Accident Benefits Schedule.

The arbitrator found that the Manulife policy required the applicant to be employed at its inception and that the maximum benefit was calculated with reference to his income from employment.

Consequently, the Manulife benefits constituted payments under an income continuation benefit plan and were deductible from the applicant's income replacement benefits.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits, which were denied by the insurer.

The applicant subsequently passed away before the arbitration hearing.

The applicant's former counsel was unable to obtain instructions from a representative of the estate and was permitted to withdraw as solicitors of record.

The solicitor for the estate then requested to withdraw all of the estate's disputes against the insurer on a without expenses basis.

The insurer consented to the withdrawal.

The arbitrator permitted the estate to withdraw all of its disputes on a without expenses basis.