Ryan Mitchell Naimark

In this motor vehicle damages trial, liability was admitted and the jury assessed damages only.

The court then determined a threshold motion under s. 267.5(5) of the Insurance Act and held the plaintiff failed to prove that the collision caused either the alleged chronic pain syndrome or a later gastric volvulus.

The court made strong adverse credibility findings, relied on conflicting medical evidence, and concluded causation had not been established on a balance of probabilities.

Although the jury awarded $30,000 in general damages, the statutory deductible eliminated the award and the action was dismissed.

Following summary judgment determining that a franchisor’s 12‑month termination notice to a long‑time franchisee was inadequate, the court determined the appropriate reasonable notice period and resulting damages.

The court rejected arguments that the notice period should correspond to a proposed franchise renewal term or to employment-law notice ranges exceeding 20 months.

While acknowledging that franchise relationships share characteristics with employment relationships, the court emphasized that franchisees remain independent contractors and must bear business risk.

Considering the length of the relationship, the franchisee’s satisfactory performance, the absence of bad faith, and the independent contractor status, the court held that 18 months’ notice was reasonable.

Damages equal to six additional months of income were awarded.

Insurers moved for summary judgment dismissing claims against them on the basis that an automobile insurance policy had been properly terminated prior to an accident involving an uninsured motorist.

The court held that the insurer complied with the statutory requirements for delivery of a notice of cancellation under s. 12 of the Statutory Conditions – Automobile Insurance, as the notice was sent by registered mail to the insured’s correct address.

However, a genuine issue requiring trial remained regarding compliance with s. 11 governing effective termination, specifically whether the insurer’s attempted withdrawal of double the monthly premium created the payment default that triggered cancellation.

The court ordered production of banking records to determine whether sufficient funds existed to cover the agreed monthly premium and service charge.

Summary judgment was granted in part and the remaining issue was adjourned pending further evidence.

The defendant appealed a trial judgment finding him liable for defamation and awarding the plaintiff $20,000 in damages.

The trial judge had held that while the defendant's statements in a union charge document were protected by qualified privilege, the privilege was defeated by malice.

On appeal, the Divisional Court found that the trial judge made a palpable and overriding error in finding malice.

The evidence demonstrated the defendant had an honest belief in the truth of the statements, and his conduct did not amount to recklessness or a personal vendetta.

The appeal was allowed and the defamation claim was dismissed.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits for an orthopaedic mattress and retraining expenses.

The insurer denied the claims because the applicant incurred the expenses before submitting a treatment plan, contrary to section 38(1.1) of the Statutory Accident Benefits Schedule.

The applicant argued for relief from forfeiture under section 129 of the Insurance Act and section 31 of the Schedule.

The arbitrator held that the insurer was not liable to pay for the expenses because the treatment plans were not submitted prior to the expenses being incurred.

The arbitrator also found that section 129 of the Insurance Act and section 31 of the Schedule did not apply to relieve the applicant from the requirement to submit a treatment plan before incurring an expense.

The application was dismissed.

Following the release of the main appeal decision, the parties reached an agreement regarding the costs of the motion before the motion judge.

The Court of Appeal ordered the respondents to pay the appellant's costs of the motion, fixed at $7,500 inclusive of disbursements and taxes, in accordance with the parties' agreement.

The defendants brought a motion seeking a stay of the Ontario action on the basis of forum non conveniens under section 106 of the Courts of Justice Act, arguing that Qatar was the more appropriate forum.

The action arose from allegations that airline employees failed to warn the plaintiff about local laws regarding alcohol consumption by Muslims, leading to the plaintiff’s arrest, imprisonment, and corporal punishment in Qatar after a flight incident.

Applying the principles from Club Resorts Ltd. v. Van Breda, the court held that the moving parties failed to demonstrate that Qatar was clearly a more appropriate forum.

Several factors—including the residence of the plaintiff and his medical witnesses in Ontario, the airline’s business presence in Ontario, and the plaintiff’s contractual connection to Ontario—supported maintaining the proceeding in Ontario.

The motion to stay the action was dismissed.

The respondent was assaulted by two unknown men in a parking lot, forced into his vehicle, and assaulted further before being abandoned.

As the assailants drove away, they ran over his foot.

The respondent claimed statutory accident benefits and indemnity coverage from his automobile insurer.

The insurer denied the claims, arguing the injuries were caused by the assaults, not the use or operation of the vehicle.

The motion judge dismissed the insurer's motion for summary judgment.

On appeal, the Court of Appeal allowed the appeal in part, holding that the assaults were intervening acts independent of the vehicle's use, breaking the chain of causation.

Summary judgment was granted to the insurer for all claims except those relating to the foot injury, which required a trial.

Following an arbitration where the insurer successfully defended the applicant's claims for statutory accident benefits, the insurer sought its expenses.

The arbitrator found the insurer was entirely successful and entitled to its reasonable expenses.

Applying a 1:4 ratio for attendance to preparation time, the arbitrator awarded the insurer $13,001.23 in fees, disbursements, and HST.

The appellant sought to appeal a forfeiture order regarding Hell's Angels paraphernalia seized from his residence.

During his sentencing, the appellant disavowed any interest in the property, claiming it belonged to the Hell's Angels Motorcycle Corporation.

He chose not to participate in the subsequent forfeiture proceedings.

After the Corporation's appeal of the forfeiture order was dismissed as abandoned, the appellant attempted to appeal the order himself.

The Court of Appeal dismissed the appeal, holding that it would be an abuse of process to allow the appellant to challenge an order made in proceedings he deliberately chose to ignore.

The Crown applied under s.16(1) of the Controlled Drugs and Substances Act for forfeiture of a motorcycle club clubhouse alleged to be offence-related property following convictions of several members for drug trafficking offences.

The court held that the clubhouse facilitated drug trafficking activities, including meetings, negotiations, and at least one drug transaction, and therefore qualified as offence-related property committed in relation to the offences.

The respondent corporation failed to establish that it was an innocent owner under s.19(3), as the property was effectively controlled by members of the organization involved in the offences.

The court also rejected relief under s.19.1(3), finding forfeiture was not disproportionate given the seriousness of the offences, the role of the property, and its fortified nature.

The Crown sought forfeiture of real property under s. 16(1) of the Controlled Drugs and Substances Act following convictions of several members of a motorcycle club for drug trafficking and conspiracy offences.

Evidence showed that the property functioned as the clubhouse and operational hub for members involved in trafficking cocaine, oxycodone, and GHB, and was used for meetings, negotiations, and transactions connected to those offences.

The court held that trial evidence from the related criminal proceedings could be relied upon in the forfeiture hearing and concluded that the property was “offence‑related property” because it facilitated networking and discussions integral to the drug trafficking activities.

The respondent corporation failed to establish that it was an innocent owner or that it was sufficiently separate from the convicted offenders, many of whom were de facto shareholders or controlling members of the organization.

The court further held that forfeiture was not disproportionate given the seriousness, scale, and commercial nature of the offences and the fortified nature of the property.

The defendant airline moved to set aside a noting in default in a negligence action arising from an international flight incident.

The plaintiff alleged that airline staff served him alcohol despite the application of strict Sharia law, leading to his detention and mistreatment by authorities abroad.

The court considered the parties’ litigation conduct, including delays and confusion surrounding proposed motions challenging jurisdiction and seeking summary judgment.

Applying Rule 19.03(1) of the Rules of Civil Procedure, the court held that the defendant had demonstrated an intention to address the claim and moved relatively promptly once default was entered.

As no prejudice to the plaintiff was established, the court exercised its discretion to set aside the noting in default, ordering each party to bear its own costs.

The respondent was assaulted by unidentified individuals while sitting in his vehicle at a gas station.

He escaped by driving away and believed he may have run over one of his assailants, claiming both physical and psychological injuries.

The appellant insurer terminated his statutory accident benefits, arguing the incident was not an 'accident' under s. 2(1) of the Statutory Accident Benefits Schedule.

The Court of Appeal held that the physical assault was an intervening act and not an accident directly caused by the use or operation of the vehicle.

However, the court found that the psychological injuries stemming from the respondent's belief that he ran over an assailant while fleeing could constitute an accident, requiring a trial on that issue.

The applicant, who was visiting Canada from India on a visitor's visa, was injured in a motor vehicle accident and claimed caregiver benefits for looking after her grandson.

The insurer suspended her benefits after she failed to attend a rescheduled insurer's examination because she had returned to India.

The arbitrator found that the insurer properly suspended the benefits under section 37(7) of the Schedule.

Furthermore, the arbitrator held that the applicant was not entitled to caregiver benefits because her temporary visitor status meant she was not 'residing with' her grandson, she was not the primary caregiver, and she failed to establish a substantial inability to engage in pre-accident caregiving activities.

Claims for a special award and interest were consequently dismissed.

The applicant, who resides in India, brought a motion to participate in her arbitration hearing by teleconference or video conference.

The insurer took no position on the format but reserved its right to cross-examine the applicant.

The arbitrator held that an electronic hearing would be inappropriate if cross-examination on documents was required, given the applicant's need for an interpreter and unfamiliarity with the process.

The arbitrator ordered that the applicant must attend in person if the insurer gives notice of its intent to cross-examine her by a specified date; otherwise, she may participate by teleconference.

The appellant insurance company appealed a decision dismissing its motion to set aside a default judgment obtained by the respondent homeowners.

The respondents had sued for damages following unsatisfactory home repairs after a flood.

The appellant failed to file a statement of defence despite multiple extensions, and delayed several months before moving to set aside the default judgment.

The Divisional Court found that while the motions judge erred in concluding there was no arguable defence on the merits, she correctly found the appellant failed to explain the default or move promptly.

Weighing all factors, the court exercised its discretion to dismiss the appeal, finding the justice of the case required denying relief due to the appellant's unexplained delay.

The applicant sought a caregiver benefit following a motor vehicle accident.

At a preliminary hearing, the arbitrator questioned whether the applicant's son-in-law, who is not a licensed legal practitioner, could represent her, and whether the applicant could participate by teleconference from India.

The arbitrator ruled that the son-in-law could represent the applicant only if both filed sworn declarations confirming he would receive no compensation and that any benefits would go solely to the applicant.

The issue of the teleconference hearing was deferred until the representation issue was resolved.

The insurer's request for expenses against the son-in-law personally was dismissed as he was not receiving compensation.

The applicant repeatedly failed to attend scheduled pre-hearing conferences without adequate excuse.

The applicant's representative was unable to contact him and was removed from the record.

The insurer requested that the application be dismissed as frivolous or vexatious under Rule 68 of the Dispute Resolution Practice Code.

The arbitrator gave the applicant twenty days to provide written submissions objecting to the dismissal.

The applicant failed to respond.

The arbitrator found the application had become vexatious and dismissed it.

The applicant sought judicial review of an arbitrator's decision, affirmed by the Director's Delegate, awarding costs against him personally in a Financial Services Commission of Ontario (FSCO) arbitration.

The Divisional Court applied a reasonableness standard of review.

The court found no denial of procedural fairness, as the applicant had notice and an opportunity to respond.

The court upheld the arbitrator's finding that the applicant caused expenses to be incurred without reasonable cause, and dismissed the application with costs.