Patti Shedden

The insurer brought a motion for partial summary judgment seeking a declaration that its liability under the OPCF 44R Family Protection Coverage was limited because there was no corroborative “other material evidence” of an unidentified vehicle involved in the accident.

The plaintiffs alleged the driver took evasive action to avoid an unidentified vehicle, causing a rollover collision and catastrophic injuries.

The court reviewed physical evidence including tire marks, sensor diagnostic data, police notes, and an accident reconstruction expert report.

The court held that this evidence, if accepted at trial, could constitute physical evidence indicating the involvement of an unidentified automobile within the meaning of the OPCF 44R endorsement.

As a result, a genuine issue requiring a trial existed and summary judgment was inappropriate.

The plaintiffs brought a motion seeking court approval of a proposed infant settlement arising from a motor vehicle accident in which a minor sustained a fractured femur and facial fractures.

The proposed settlement totalled $85,000 and included damages, interest, legal fees, HST, and disbursements pursuant to a contingency fee agreement entered into by the litigation guardian.

The court found the evidentiary record insufficient regarding the facial injury and raised concerns about whether the contingency fee agreement complied with the Solicitors' Act.

Applying the fairness and reasonableness framework articulated by the Court of Appeal, the court held that the materials were inadequate to determine whether the settlement and fee arrangement were appropriate.

The matter was referred to the Office of the Children's Lawyer to investigate and report on the settlement and the enforceability and reasonableness of the contingency fee agreement.