Pamela Quesnel

The court determined costs arising from four similar insurance motions brought by separate defendants in related actions.

The plaintiffs sought partial indemnity costs of $36,500.

The court found that a deduction was required because some counsel time related to unargued Charter applications rather than the motions themselves.

Applying the principles from Hunt v. TD Securities Inc., the court declined to award substantial indemnity costs and instead reduced the requested amount by $8,000.

The plaintiffs were awarded $28,500 plus HST, payable equally among the defendants.

The insurer, Pilot Insurance Company, failed to file a Response to the insured's Application for Arbitration within the 20-day period prescribed by the Dispute Resolution Practice Code.

Five and a half months after the deadline, Pilot retained counsel and filed a Response.

Pilot brought a motion for an order nunc pro tunc extending the time for delivery of its Response.

The arbitrator found that the default was due to human error, the insurer had a non-frivolous defence, and the insured consented to the application.

The arbitrator granted the motion, waiving the default and validating the late Response.

The plaintiffs, injured in motor vehicle accidents, applied for mediation through the Financial Services Commission of Ontario regarding entitlement to statutory accident benefits.

Mediation was not scheduled within 60 days of filing their applications, and the regulator refused to issue reports declaring mediation had failed, asserting the 60‑day period began only once a mediator was appointed.

The plaintiffs commenced court actions and the insurers moved to strike the claims for lack of jurisdiction.

The court held that Rule 19 of the Dispute Resolution Practice Code imposes a mandatory requirement that mediation be concluded within 60 days of filing the mediation application.

Because that period had expired, mediation was deemed to have failed and the plaintiffs were not required to obtain a failed mediation report or pursue internal appeals or judicial review before commencing their actions.

The applicant was injured in a motor vehicle accident while in the course of his employment.

He applied for statutory accident benefits from the insurer, claiming he had elected to opt out of the Workplace Safety and Insurance Act (WSIA) scheme to pursue a tort action.

The insurer argued the election was invalid because it was made primarily to claim statutory accident benefits, contrary to section 59(2) of the Schedule.

The arbitrator found that the applicant and his paralegal took no meaningful steps to pursue a tort action for over two years, ignored correspondence from the insurer regarding the tort claim, and only issued a Statement of Claim after the insurer sought repayment of benefits.

The arbitrator concluded the election was not made primarily to pursue a tort action and was therefore invalid, entitling the insurer to repayment of benefits paid.

The applicant was injured in a motor vehicle accident and sought caregiver and housekeeping benefits.

She had been injured in a prior accident seven months earlier, which had prevented her from performing these activities at the time of the second accident.

The arbitrator held that entitlement to these benefits is based on the activities the insured actually performed at the time of the accident, not on a retained status.

Because the applicant was not the primary caregiver and did not normally perform housekeeping activities at the time of the second accident due to impairments from the first, she was not entitled to the claimed benefits.

The application was dismissed.