Robert Michael Ben

The Court of Appeal for Ontario dismissed an appeal by non-settling defendants challenging the approval of a Pierringer agreement in a multi-party motor vehicle accident case.

The court held that the agreement did not cause substantive prejudice to the non-settling defendants, as the Negligence Act places the risk of an insolvent or impecunious tortfeasor on the remaining tortfeasors, not the victim.

The court also declined to grant procedural orders in advance, leaving such matters to the trial judge.

The appellant, William Daniel Lewis, appealed a motion judge's decision dismissing a class action against Uber entities.

The core issue was whether the action, seeking a rebate of GST remitted to the government, was prohibited by the Excise Tax Act (ETA).

The Court of Appeal affirmed the motion judge's finding that section 312 of the ETA prohibits such actions, as the ETA provides a complete statutory framework for GST rebates, with exclusive jurisdiction vested in the Tax Court.

The court also agreed that section 224.1 of the ETA reinforces this statutory bar, extending protection from civil liability to tax collectors acting in compliance with the ETA.

The appeal was dismissed.

The plaintiff sought certification of a class action alleging that Uber improperly calculated Goods and Services Tax (GST) on pre-discounted Uber Eats orders, claiming violations of the Excise Tax Act (ETA), provincial consumer protection legislation, the Competition Act, breach of contract, and unjust enrichment.

The court dismissed the certification motion, primarily finding that the claim was barred by ss. 224.1 and 312 of the ETA.

The court characterized the action as an attempt to recover tax outside the comprehensive statutory scheme provided by the ETA, which includes a rebate mechanism.

Additionally, the court identified other deficiencies, including inadequate pleadings for certain causes of action, issues with class identifiability due to varying promotional language, and a lack of commonality among proposed issues, concluding that a class proceeding was not the preferable procedure.

The plaintiff in a putative class action sought court approval for a third-party funding agreement.

The agreement aimed to indemnify the plaintiff for adverse costs in exchange for a share of any litigation proceeds, as the plaintiff was unsuccessful in obtaining financing from the Class Proceedings Fund.

The court reviewed the agreement against the requirements of the recently amended s. 33.1 of the Class Proceedings Act, 1992, which codifies the approval process for such agreements.

The court found the agreement fair and reasonable, ensuring plaintiff control over litigation, and confirmed the funder's financial capacity.

The defendants did not oppose the motion.

The motion was granted, and the third-party funding agreement was approved.

The Plaintiff, Nordik Windows Inc., was successful in a certification motion and related motions.

This endorsement addresses the costs for these motions, which involved two rounds of hearings due to a recusal by the initial judge.

The court determined the appropriate costs, considering the re-usable work from the first hearing and the work for the second hearing, ultimately awarding the Plaintiff $1,000,000.00 in all-inclusive costs.

This endorsement concerns the costs award following a jury trial where the plaintiff, Sara Baker, successfully sued Blue Cross Life Insurance Company of Canada for wrongful termination of long-term disability benefits.

The jury found Ms. Baker totally disabled and awarded her retroactive benefits, aggravated damages, and punitive damages.

The court, exercising its discretion under s. 131 of the Courts of Justice Act, awarded Ms. Baker full indemnity costs, extending the rationale from 'duty to defend' cases to wrongful denial of long-term disability benefits, citing the unique character of such policies as a special circumstance.

The court fixed the costs at $1,083,953.50, including fees, HST, and disbursements, after considering factors under Rule 57.01 and making a discount for some duplication of legal work.

This case concerns a re-hearing of a certification motion for a class action against Aviva Insurance Company of Canada, Aviva General Insurance Company, and Aviva Canada Inc. regarding business interruption insurance claims arising from the COVID-19 pandemic.

The plaintiff, Nordik Windows Inc., sought to certify a class of businesses whose claims were denied or not submitted due to the defendants' alleged blanket denial policy.

The defendants brought cross-motions for summary judgment against Nordik and a declaration concerning the tolling of the limitation period.

The court certified the class action, dismissed the defendants' summary judgment and limitation tolling motions, and allowed the addition of three new representative plaintiffs (Cash and Carry Inc., Hangar9 Studios Inc., and Real Food for Real Kids Inc.).

The decision addresses the adequacy of the representative plaintiff, the identifiable class, and the common issues, particularly regarding notice requirements and the interpretation of insurance policy clauses in the context of pandemic-related business closures.

This endorsement addresses two motions for leave to appeal before the Divisional Court.

The Plaintiffs' motion for leave to appeal a "set aside" order was dismissed with costs awarded to the Defendants.

Concurrently, the Defendants' motion for leave to appeal earlier certification decisions was dismissed without costs, having become moot.

This application sought judicial approval for a $1.6 million settlement of a minor's accident benefits claim following a traumatic brain injury.

The court approved the settlement quantum but expressed concerns regarding the proposed structured settlement's adequacy for the minor's future needs, requesting a comprehensive treatment plan.

Additionally, the court reduced the applicant's counsel's requested legal fees from $240,000 to $150,000 plus HST, emphasizing the mandatory disclosure of dockets, disbursements, and retainer agreements in Rule 7.08 applications, particularly when the retainer is not a contingency agreement.

Two Ontario residents injured in separate accidents outside Ontario involving an all-terrain vehicle (ATV) and a dirt bike sought statutory accident benefits (SABs) under their Ontario automobile insurance policies.

Both insurers denied coverage, arguing that the definition of "automobile" under Ontario law should be determined by the law of the jurisdiction where the accidents occurred (lex loci delicti).

The Court of Appeal held that Ontario law applies to the interpretation of Ontario contracts and statutes, and that the definition of "automobile" in the Insurance Act and Off-Road Vehicles Act applies uniformly regardless of where the accident occurs.

Both vehicles qualified as automobiles under the extended definition because they would have required insurance if operated in Ontario under the Off-Road Vehicles Act.

The court allowed the appeal of the insured and dismissed the appeal of the insurer.

The defendants, William and Mary Wade, sought an extension of time to bring a motion for summary judgment to dismiss the action against them, alleging that trees on their property obstructed visibility at an intersection where a serious motor vehicle collision occurred.

The plaintiffs, the Greens, opposed the extension.

The court dismissed the Wades' motion, finding substantial delay without satisfactory explanation, significant prejudice to the plaintiffs, and a risk of inconsistent factual findings if the summary judgment motion proceeded.

The court emphasized that the novel legal question of a private property owner's duty of care to motorists on adjacent roadways is best determined at a full trial, aligning with principles of proportionality, timeliness, and affordability.

Following a jury trial in a motor vehicle personal injury action, the plaintiffs moved for an order staying the determination of costs pending satisfaction of the judgment or resolution of a separate insurance coverage dispute involving the liable defendant and his insurer.

The plaintiffs argued that costs should be deferred because the verdict was under appeal and because the defendant’s ability to pay costs was uncertain pending determination of coverage, particularly given their intention to seek a Sanderson costs order.

The court held that the existence of an appeal or unresolved insurance coverage litigation does not justify departing from the usual practice of fixing costs after trial.

The ability to pay costs is only one factor in determining whether a Sanderson order is appropriate and does not require postponement of the costs determination.

The motion for a stay of the costs determination was dismissed.

Following a 21‑day personal injury trial concerning municipal liability for road conditions and signage, the successful plaintiffs sought partial indemnity costs exceeding $1,045,000.

The court considered the complexity of the litigation, the extensive expert evidence, and the reasonableness of the fees and disbursements claimed.

Applying the principle that costs must be fair and reasonable for the unsuccessful party to pay rather than fully reflective of the successful party’s expenditures, the court concluded that the amounts claimed exceeded reasonable expectations.

Significant reductions were made to both fees and disbursements.

Costs were fixed at $406,000 in fees and $200,000 in disbursements, plus applicable taxes.

The plaintiffs brought a negligence action against a municipality arising from a single‑vehicle collision on a rural road curve that caused catastrophic injuries to a young driver.

The court considered whether the municipality breached its duty under s. 44 of the Municipal Act to keep the roadway in a reasonable state of repair, focusing primarily on inadequate warning signage and the absence of an advisory speed sign for a sharp curve.

Expert evidence established that proper signage, including a 40 km/h advisory speed tab and additional warning devices required by the Ontario Traffic Manual, should have been installed.

The municipality had not conducted any evaluation of the signage following amalgamation and allowed substandard signage to remain in place for years.

The court found the municipality liable for failing to maintain the road in a reasonable state of repair, but also held the driver contributorily negligent for failing to sufficiently reduce speed in snowy conditions.

During a civil jury trial arising from a motor vehicle accident involving a child pedestrian, the court ruled on the permissible scope of testimony from an accident reconstruction expert.

The plaintiffs sought to elicit opinion evidence concerning alleged deficiencies in the defendant vehicle’s braking system and on driver perception and reaction times.

The court held that Rule 53 of the Rules of Civil Procedure requires expert reports to clearly state the opinions being advanced and their factual bases, and an expert cannot introduce a new field of opinion not articulated in the report.

Because the expert’s reports did not opine that the brake condition contributed to the collision, such testimony would improperly expand the report.

The court also barred additional human factors opinion evidence as duplicative of testimony already provided by a qualified human factors expert.

The defendant moved to exclude examination for discovery transcripts on the basis that he did not have an interpreter during the first discovery and that some answers during the second discovery were given in broken English.

The moving party argued the transcripts were unreliable and unfair to use at trial.

The court held that the obligation to arrange for an interpreter rests with the party being examined and noted the defendant had an opportunity during the second discovery to correct earlier answers.

The court found that although the defendant would testify at trial through an interpreter, the discovery transcripts should not be struck.

Instead, the court directed that proposed read‑ins be reviewed to ensure fairness in light of the language issues.

During a civil jury trial arising from a pedestrian motor vehicle accident involving a child, the defendants moved for a mistrial after the plaintiffs’ counsel delivered an opening address containing alleged misstatements of law and improper argument.

The court found that counsel repeatedly misstated the reverse onus under the Highway Traffic Act by suggesting that all defendants bore the burden of disproving negligence, improperly argued factual conclusions regarding vehicle brake defects without supporting expert evidence, and displayed discovery transcript excerpts suggesting an admission of negligence by one defendant.

The court held that the discovery excerpt was misleading, potentially inadmissible, and taken out of context, particularly given language barriers during the examination for discovery.

Considering the cumulative prejudicial impact of the opening remarks, the court concluded that corrective instructions would not sufficiently remedy the prejudice to the jury.

A mistrial was therefore declared.

During a jury trial arising from a motor vehicle accident involving a child pedestrian, the defendants moved for a mistrial following the plaintiffs’ opening address.

The court had previously ruled that a police mechanic could not provide expert opinion evidence regarding the condition or effect of the vehicle’s brakes.

In the opening address, plaintiffs’ counsel suggested that the defendant driver’s brakes were in an unsatisfactory condition and invited the jury to infer that this contributed to the accident, despite the absence of expert evidence supporting such a theory.

The court held that the opening address improperly contained argument, inaccurate statements about the police investigation, and suggestions that the jury act as enforcers of societal rules.

Because the comments invited the jury to draw conclusions unsupported by admissible evidence and could not be cured by a corrective instruction, a mistrial was declared.

The plaintiffs in a motor vehicle personal injury action involving a child with an alleged brain injury sought leave under s. 12 of the Evidence Act to call more than three expert witnesses at trial.

The court considered factors governing leave to call additional experts, including necessity, duplication of evidence, fairness between parties, and proportionality.

While acknowledging the complexity of the medical issues and future care claims, the court emphasized the trial judge’s gatekeeping role and the need to avoid unnecessary or repetitive expert testimony.

Leave was granted for several experts with distinct specialties but denied for others whose proposed evidence lacked a compliant Rule 53 report or would duplicate testimony from other experts.

The court limited the number of occupational therapists who could testify and refused permission for certain proposed witnesses whose opinions were unnecessary or procedurally deficient.