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.

The moving parties brought a motion for leave to appeal the decision of J.S. Richard J. dated April 5, 2024.

The Divisional Court dismissed the motion for leave to appeal without costs.

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.

The moving party sought an extension of time to appeal a Licence Appeal Tribunal (LAT) decision that found she was not catastrophically impaired and denied her statutory accident benefits.

Following the LAT decision, the moving party attempted to seek a reconsideration but was denied an extension of time to do so, and subsequently denied a reconsideration of that denial.

The court clarified that only the original merits decision was a final order giving rise to a right of appeal to the Divisional Court.

Applying the test for an extension of time, the court found the moving party had a bona fide intention to appeal, provided an adequate explanation for the delay, and that the respondent suffered no real prejudice.

The court granted the extension of time to appeal the merits decision on specific terms.

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 applicant sought statutory accident benefits following a 2007 motor vehicle accident.

The insurer denied ongoing attendant care and housekeeping benefits in September 2018.

The applicant applied to the Tribunal in March 2022, beyond the two-year limitation period (even accounting for the O. Reg. 73/20 suspension).

The Tribunal found the 2018 denial was clear and unequivocal, meaning the application was filed late.

However, applying the Manuel factors, the Tribunal exercised its discretion under section 7 of the LAT Act to extend the limitation period, noting the appeal had merit due to the applicant's catastrophic impairment and the insurer suffered no prejudice as it had continued to conduct assessments during the delay.

The applicant sought non-earner benefits following a motor vehicle accident.

The insurer raised a preliminary issue that the claim was statute-barred because the applicant failed to submit a Disability Certificate (OCF-3) within 104 weeks of the accident and failed to dispute the denial within the two-year limitation period.

The Tribunal found that the applicant did not submit a qualifying OCF-3 until over four years after the accident and failed to appeal the denial within two years.

The Tribunal declined to extend the limitation period under s. 7 of the LAT Act, finding the delay unreasonable and prejudicial to the insurer.

The claim for non-earner benefits was dismissed as statute-barred.

Three appeals were heard together to determine whether the Licence Appeal Tribunal (LAT) has jurisdiction under s. 7 of the Licence Appeal Tribunal Act to extend the two-year limitation period for filing appeals set out in s. 56 of the Statutory Accident Benefits Schedule (SABS).

The Divisional Court held that s. 7 does grant the LAT jurisdiction to extend the s. 56 limitation period, as the time limit is fixed 'under an Act' (the Insurance Act).

The Court dismissed the insurers' appeals challenging the LAT's jurisdiction and its exercise of discretion to grant extensions, finding no errors of law.

In the third appeal, where the adjudicator had found no jurisdiction, the Court allowed the appeal and remitted the matter back to the LAT to consider the extension request.

The moving party brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $1,800.

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 applicant sought reconsideration of a decision finding her statute-barred from disputing the denial of an income replacement benefit.

The Vice Chair held that section 7 of the Licence Appeal Tribunal Act applies to extend limitation periods under the Statutory Accident Benefits Schedule.

Applying the four-factor test for extending time, the Vice Chair found that the 13-day delay, caused by a paralegal's failure to follow instructions, did not prejudice the respondent.

The extension was granted, allowing the applicant to proceed with her dispute.

The plaintiff brought a motion to strike the jury notice in a personal injury action arising from a motor vehicle accident, citing trial delays caused by the COVID-19 pandemic.

The plaintiff also sought an Order to Continue following the death of one of the defendants.

The court granted the Order to Continue but dismissed the motion to strike the jury notice, finding that the delay was partially attributable to the parties and that the anticipated delay in Toronto was not sufficient to deprive the defendants of their substantive right to a jury trial.

Three appeals were scheduled to be heard regarding whether the Licence Appeal Tribunal (LAT) has jurisdiction under s. 7 of the Licence Appeal Tribunal Act to extend the two-year limitation period for statutory accident benefits applications.

The LAT had previously made conflicting decisions on this issue and indicated it did not intend to appear.

The Divisional Court adjourned the appeals and ordered the LAT to intervene and file materials to assist the court in determining the jurisdictional issue.

The appellant was injured in a motor vehicle accident and received income replacement benefits until the insurer refused further benefits.

The appellant applied to the Licence Appeal Tribunal to dispute the refusal, but the adjudicator dismissed the application as being outside the two-year limitation period.

On appeal, the appellant argued the refusal was invalid because the insurer failed to provide copies of independent assessment reports to her treating practitioner, as required by section 37(5) of the Statutory Accident Benefits Schedule.

The Divisional Court dismissed the appeal, holding that while the insurer breached section 37(5), this omission did not invalidate the clear and unequivocal refusal of benefits, and the limitation period had expired.

The applicant insurer sought judicial review of a preliminary decision by the Licence Appeal Tribunal that extended the limitation period for the respondent's claim for attendant care benefits.

The Divisional Court dismissed the application as premature, finding that the insurer must first proceed to the main hearing on the merits and, if unsuccessful, pursue a reconsideration and subsequent appeal.

The court held that no exceptional circumstances existed to justify fragmenting the administrative proceedings and reviewing the interim decision.

The applicant filed a request for reconsideration of an adjudicator's decision that found the applicant was limitation-barred from obtaining Income Replacement Benefits.

The Associate Chair dismissed the request for reconsideration, noting that under the amended Rule 18.1 of the Common Rules of Practice and Procedure, requests for reconsideration are only accepted for decisions that finally dispose of an appeal.

Because the issue of catastrophic determination remained scheduled for a future hearing, the underlying decision did not finally dispose of the appeal.