Sandi J. Smith

The Court of Appeal for Ontario allowed Pafco Insurance Company’s appeal from a motion judge’s decision regarding the interpretation of the “insured person” definition in the standard Ontario Automobile Policy 44R family protection endorsement.

The court held that the motion judge erred in finding that Ashley Kerr was not an “insured person” under Joe Hesch’s 44R endorsement with Kent and Essex Mutual Insurance Company.

The correct interpretation, supported by prior case law and industry commentary, is that coverage is available to an insured person occupying their own vehicle if family protection coverage is in force on that vehicle.

The court clarified the priority of coverage and the pro rata sharing of excess damages between insurers.

This decision concerns the allocation of costs following the settlement of two related personal injury actions arising from a motor vehicle accident.

The court addresses disputes over the reasonableness and recoverability of various disbursements and legal fees, including expert reports, travel, and office expenses.

The court reduces certain disbursements and fees, providing detailed reasons for each adjustment, and clarifies the principles for assessing costs in complex personal injury litigation.

Two personal injury actions, arising from a 2014 collision, were commenced in North Bay.

The court, concerned about judicial resource shortages and the impact of R. v. Jordan timelines on civil matters, initiated discussions about transferring the actions to Ottawa, where the accident occurred.

The plaintiffs consented to the transfer, but the defendant opposed, arguing that a formal motion was required and that the transfer would be unfair given a prior decision to strike a jury notice to expedite the trial in North Bay.

The court, exercising its discretion under Rule 2.03 to dispense with the formal motion requirement, ordered the transfer, emphasizing that the interest of justice, particularly judicial availability in Ottawa, outweighed the defendant's objections to ensure the timely disposition of these long-standing cases.

The plaintiffs in the main action brought a motion to strike a jury notice in consolidated motor vehicle accident trials, arguing that the estimated 8-10 week trial duration could not be accommodated within the court's allotted 6-week jury trial period due to limited judicial resources and pandemic-related backlogs.

The defendants opposed, asserting the motion was premature.

The court granted leave to bring the motion, finding the delay justified by the pandemic's impact and judicial resource constraints.

The motion to strike the jury notice was granted, converting the main action to a judge-alone trial, emphasizing the necessity of ensuring timely justice given the case's age and the unlikelihood of completing a jury trial within the available time.

Following a settlement of the plaintiffs' claims arising from a motor vehicle accident, the insurer sought costs against the uninsured at-fault driver.

The insurer claimed costs for defending the action as well as costs incurred in an unsuccessful motion for contribution against another insurer.

The court awarded the insurer its costs for defending the action but denied recovery for the costs associated with the unsuccessful motion, finding it was a dispute between insurers and not a necessary step in defending the claims against the uninsured driver.

This motion concerned a dispute between two defendant insurers, Pafco Insurance Company and Kent and Essex Mutual Insurance Company, regarding Kent's obligation to contribute to a $950,000 settlement paid by Pafco.

The settlement satisfied claims made by the plaintiffs under the OPCF 44R Family Protection Coverage endorsement, following the death of Ashley Kerr in a car accident caused by an uninsured motorist.

The central issue was whether Ashley Kerr qualified as an "insured person" under Joe Hesch's (her common-law spouse) 44R policy with Kent, which would trigger Kent's contribution.

The court found that Ashley did not meet the definition of an "insured person" under Joe's policy because she owned the "other automobile" she was occupying at the time of the accident, an exclusion explicitly stated in the 44R endorsement and reinforced by the OAP 1 policy.

Consequently, Kent was not obligated to contribute to the settlement.

The court also granted Pafco a subrogated judgment against the at-fault uninsured motorist.

This is an appeal from an arbitrator's decision concerning a loss transfer dispute between two out-of-province insurers, Manitoba Public Insurance (MPI) and Insurance Corporation of British Columbia (ICBC), following a motor vehicle accident in Ontario.

MPI sought indemnification from ICBC under s. 275 of the Ontario Insurance Act for accident benefits paid to its insureds under Manitoba's regulatory scheme.

The arbitrator ruled that s. 275 was inapplicable because MPI had not paid Ontario Statutory Accident Benefits.

The Superior Court upheld the arbitrator's decision, confirming that the Ontario Insurance Act's loss transfer provisions apply only to benefits paid under the Ontario scheme and do not have extraterritorial application to benefits paid under another province's legislation, even if the accident occurred in Ontario and both insurers are signatories to the Power of Attorney and Undertaking (PAU).

The plaintiffs brought a motion to strike the jury notices filed by the defendants in two related actions: a motor vehicle accident claim and a broker negligence claim.

The plaintiffs argued the trial was too complex for a jury and cited uncertainties regarding jury trials due to the COVID-19 pandemic.

The court dismissed the motion, adopting a modified 'wait-and-see' approach, holding that it was premature to strike the jury notices for a trial scheduled seven months away, and that the actions were not too complex for a jury.

The judge convened a case conference regarding a proposed partial summary judgment motion by Defendants Gill and Freeway Auto Service to dismiss the action against them, which was opposed by Defendants Lorenzo and Martinez.

Citing Court of Appeal jurisprudence, the judge found the proposed partial summary judgment motion inappropriate due to the risk of duplicative proceedings and inconsistent findings of fact.

The judge suggested that a full summary judgment motion on liability for all defendants might be a more appropriate and efficient use of court resources.

The third party insurer, Pembridge, moved under Rule 21 to strike the defendants' third party claim against it.

Pembridge had previously been added as a statutory third party under section 258(14) of the Insurance Act because the defendant driver was allegedly operating the vehicle in violation of her G1 licence conditions.

The court applied established jurisprudence holding that once an insurer acquires the status of a statutory third party, a defendant cannot issue a third party claim against it.

The motion was granted and the third party claim was struck.

The plaintiff brought a motion to set aside a registrar's order dismissing the action for delay.

The action arose from a motor vehicle accident and was dismissed after the plaintiff failed to set it down for trial by the deadline in a status hearing order.

The court applied the Reid factors and found that the delay was largely due to coverage issues involving one of the defendants and the need to add third parties.

The court concluded that the plaintiff's explanation was adequate, the failure to meet the deadline was inadvertent, the motion was brought in a timely manner, and the defendants would not suffer actual prejudice.

The motion was granted and the dismissal order was set aside.

The insurer brought a motion for summary judgment seeking dismissal of the insured’s statutory accident benefits action as statute‑barred under s. 281.1 of the Insurance Act.

The insured had submitted an Application for Determination of Catastrophic Impairment (OCF‑19), to which the insurer responded with an Explanation of Benefits (OCF‑9) stating the insured had not sustained a catastrophic impairment and therefore did not qualify for increased benefits.

The insured argued that denial of catastrophic impairment status alone does not constitute a refusal to pay a benefit and therefore does not trigger the limitation period.

The court distinguished prior authority and held that the wording of the OCF‑9 expressly communicated that increased benefits were not payable, which constituted a refusal to pay benefits.

Accordingly, the two‑year limitation period began to run from that denial and the claim was commenced out of time.

The plaintiffs brought a motion seeking to exclude an individual from attending the continued examination for discovery of a corporate representative.

The plaintiffs argued that a corporation could not have another representative present when the adverse party had selected a specific individual for discovery, and that the individual’s presence risked influencing the witness’s evidence.

The court held that a corporation, as a separate legal entity, is entitled to have a representative present at discoveries to assist with litigation decision‑making even if that person is not the discovery witness.

The evidence relied on by the plaintiffs did not demonstrate any risk of tampering with the discovery evidence.

The motion to exclude the individual from the continued examination for discovery was therefore dismissed.

Following a motor vehicle accident jury trial resulting in a modest judgment after statutory deductions and collateral benefit credits, the court addressed liability for costs.

The defendant insurer argued that its Rule 49 offer to settle should trigger cost consequences because the plaintiff recovered significantly less than the offer.

The court held that the offer was ambiguous due to unexplained references to provisions of the Insurance Act and therefore could not trigger Rule 49 cost consequences.

Applying Rule 57.05(1) of the Rules of Civil Procedure, the court found the recovery fell within the Small Claims Court monetary jurisdiction and determined that neither party should receive costs.

Two insurers brought motions to dismiss third party claims arising from a motor vehicle accident involving a rented vehicle and an alleged unidentified driver.

The central issue was the priority of insurance coverage under the Insurance Act where claims were made under the uninsured and unidentified motorist provisions of an automobile policy.

The court held that s. 277(1.1), which alters priority rules for leased or rented vehicles, applies only to third party liability coverage and not to uninsured or unidentified motorist claims.

Such claims remain governed by s. 277(1), which provides that the owner's policy is first loss insurance.

Accordingly, the insurer of the rented vehicle was required to respond first and the third party claims against the other insurers were dismissed.