COURT FILE NO.: 155/03

DATE: 20030402

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

NASSER HUSSEIN

Plaintiff

• and -

NICOLINA DE MARCO AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Defendants/Appellant

Counsel:

Richard A. Lebkowski, for the Plaintiff

Robert Bowman, for State Farm Mutual Automobile Insurance Company

HEARD: April 2, 2003

LANE J.: (Orally)

1This is a motion by State Farm for leave to appeal from the Order of Wilkins J. made March 6, 2003, as a term of adjourning the plaintiff's motion for injunctive relief restoring his S.A.B. benefits. Wilkins J. ordered State Farm to pay 6 months S.A.B. as a lump sum and then pay them weekly until the injunction is heard, presently scheduled for May 14, 2003.

2Counsel for the applicant concedes that Dempster v. Mutual Life -, 55 O.R. (3d) 409 (Div. Ct.) holds that an insurer may be ordered to make such payments as a term of an adjournment, to the extent that the payment order responds to the impact of the adjournment on the insured. Dempster also notes the decision of Cameron J. in Poersch v. Aetna (2000) 19 C.C.L1 (3d) 92, that such payments may also be ordered as part of the insurer's duty of utmost good faith. Accordingly, it is my view that there is not good reason to doubt the correctness of a motions judge making such an Order. However, it is submitted that the scale of the order - the 6 month lump sum in particular - goes well beyond responding to the impact of the adjournment. Counsel for the respondent submits that the scale of payment is a matter of discretion and cannot be said to be wholly wrong; therefore there is no basis for an appeal.

3While I think that the lump sum portion of the Order probably goes beyond the impact of the adjournment, it could well be justified under Poersche given the evidence of considerable delay by State Farm in carrying out its responsibility to answer undertakings and to move the case along. I also note that the funds are refundable if the plaintiff is not successful at trial. The matter of the scale of the payment is only of importance to the parties and not of general importance and does not meet the second branch of the test for leave.

4Accordingly leave to appeal is refused. Respondent to have his costs on partial indemnity basis fixed at $500, all inclusive, payable forthwith.