Statutory Accident Benefits Schedule matters (SABS) - SCJ

The appellant insurer appealed a preliminary arbitral ruling in a statutory accident benefits priority dispute under s. 268 of the Insurance Act and O. Reg. 283/95.

The central issue was whether the 90-day notice requirement in s. 3 was automatically suspended by O. Reg. 73/20 during the COVID-19 emergency period.

The court held, on a purposive interpretation of the emergency regulation, that the notice requirement functioned as a limitation period for that temporary regime and was therefore automatically stayed.

The arbitral dismissal of the priority claim was set aside on that basis, while the court noted that if this interpretation were wrong, deference would support the arbitrator's discretionary findings under s. 2.

The plaintiff sued her former lawyer for negligence and breach of contract arising from an allegedly improvident settlement of her accident benefits claim in May 2014.

The plaintiff claimed the lawyer failed to advise her adequately regarding income replacement benefits, failed to discourage her from settling prematurely, and failed to advise her of the potential for catastrophic impairment designation which would have entitled her to significantly enhanced benefits.

The court found that while the lawyer breached the standard of care in several respects, the plaintiff failed to establish causation because she did not prove she would have acted differently with proper advice.

Additionally, the plaintiff failed to mitigate her damages by not attempting to set aside the settlement when she became aware of the defect.

The court also found the plaintiff failed to establish that she would have been found catastrophically impaired.

The action was dismissed.

The court approved the settlement of a motor vehicle accident claim involving a party under disability.

The plaintiff, represented by a litigation guardian, had settled both an accident benefits claim for $500,000 and a tort claim for $390,000.

The primary issue concerned the reasonableness of legal fees charged by plaintiff's counsel under a contingency fee agreement.

The court reduced the combined fees from $295,115 to $211,500, finding that a 35% contingency fee on the accident benefits claim was excessive and not in the best interests of the party under disability.

The court approved 15% of the accident benefits settlement as reasonable fees and directed that remaining funds be placed in a structured settlement.

Motion for court approval of settlement of claims on behalf of three minor grandchildren of the deceased in a fatal pedestrian-vehicle collision case.

The plaintiffs sought approval for $10,000 to be paid to the Accountant of the Superior Court for each minor plaintiff, along with approval of a contingency fee retainer agreement and related relief.

The court adjourned the motion due to insufficient evidence regarding the quantum of the settlement, the basis for the settlement amount, and the treatment of legal fees and disbursements.

The court identified multiple procedural deficiencies in the motion record and provided detailed directions for resubmission.

The court dismissed the plaintiff’s motion to set aside a registrar’s dismissal order for delay in a motor vehicle accident action.

The plaintiff’s counsel misunderstood the effect of the COVID-19 suspension of administrative dismissals, believing there was additional time to set the matter down for trial.

The court found the explanation for delay unsatisfactory, noting the plaintiff and her counsel failed to move the action forward and did not provide evidence of a plan thwarted by unforeseen obstacles.

The court also found the presumption of prejudice to the defendants was not rebutted, as key evidence and witnesses were no longer available.

The decision emphasizes the responsibility of parties to advance litigation and the court’s intolerance for delay.

This decision addresses whether the owner of a vehicle (Floyd Thomas) provided implied consent to his son (Robert Thomas) to possess and operate the vehicle, which was involved in a serious accident.

The court found that there was no implied consent, based on clear evidence that Robert knew he did not have permission, and that Floyd had a consistent history of restricting access.

The court declined to dismiss the action entirely, as other negligence issues remained for trial.

The court dismissed the defendants’ motion for summary judgment in a motor vehicle accident case, finding that there was a genuine issue for trial regarding the location of the vehicles at the time of the collision and the potential contributory negligence of the parties.

The decision reviews the summary judgment test, the reverse onus in rear-end collisions, and the application of negligence principles, concluding that conflicting evidence and credibility issues require a full trial.

The defendant, Jama Saban, brought a motion for summary judgment, arguing there was no genuine issue requiring a trial on the issue of liability for a motor vehicle accident involving the plaintiff, Micheal Nelson.

The court reviewed dashcam evidence and affidavits from both parties.

The court found that while the plaintiff rear-ended the defendant, there was evidence that the defendant may have stopped unnecessarily and without checking his rearview mirror, potentially contributing to the accident.

As a result, the court held that there was a genuine issue requiring a trial on liability and dismissed the defendant’s motion for summary judgment.

Costs were awarded to the plaintiff.

The defendants, Dude Mitshabu and Isabelle Kayakeza, sought to set aside a default judgment issued against them in a motor vehicle accident case.

The court reviewed the relevant factors for setting aside a default judgment, including promptness, explanation for default, arguable defence, prejudice, and the effect on the administration of justice.

The court found the defendants did not act promptly, provided implausible explanations, and failed to present an arguable defence.

The motion to set aside the default judgment was dismissed.

These supplementary reasons correct a previous decision regarding liability under s. 192 of the Highway Traffic Act.

The court, upon discovering a Court of Appeal decision (Mazur v. Elias et al.), clarified that co-owner consent is not required for liability to attach to both owners under the Act.

This correction amends paragraph 29 of the original reasons, affirming that liability attaches to co-owners regardless of consent flow.

The applicant, convicted of impaired driving in New York, sought to quash the automatic one-year suspension of his Ontario driver's licence under section 41 of the Highway Traffic Act, arguing the Registrar erred by not considering equivalency to Ontario offences, breaching natural justice, and violating Charter rights.

The court dismissed the application, finding the suspension was automatic by operation of law, not discretionary, and did not engage Charter rights related to liberty, mobility, or cruel and unusual punishment, nor did it violate principles of natural justice or double criminality.

The defendant Phillip Franchetto brought a motion for summary judgment to dismiss negligence claims against him arising from a head-on motor vehicle collision.

The plaintiffs, passengers in the other vehicle, alleged Franchetto was negligent for his speed and evasive maneuvers.

The court dismissed the motion, finding that Franchetto's actions were reasonable and did not breach the standard of care, nor were they a legal cause of the plaintiffs' injuries.

The court emphasized that expert opinions based on hindsight and counterfactuals cannot supplant the legal standard of a reasonable and prudent driver in an emergency.

The defendants brought a motion for summary judgment, arguing that the motor vehicle accident was an "inevitable accident" due to the defendant driver suffering a severe anaphylactic shock from an allergic reaction to naproxen (Aleve).

The plaintiff opposed, asserting that genuine issues of fact and credibility required a trial.

The court dismissed the motion, finding that there were complex and highly disputed factual issues, particularly regarding the timing of the anaphylactic reaction, the driver's potential negligence in taking a double dose of medication without reading instructions, and when unconsciousness occurred.

The court determined it could not make the necessary factual findings for a fair and just determination without a full trial, even with enhanced fact-finding powers.

The plaintiff sought an extension of time to serve a Statement of Claim, filed in 2017 for a 2015 motor vehicle accident.

The court dismissed the motion, finding the delay of over five years to be extreme and inexcusable.

The plaintiff's explanations, including inability to locate parties, a negligent associate, and COVID-19, were deemed without merit.

The court found actual and presumed prejudice to the defendants due to the passage of time, loss of evidence, and compromised ability to investigate and bring third-party claims.

The decision emphasized counsel's ultimate responsibility for prosecuting the action.

The defendant Anderson moved for summary judgment to dismiss the action and crossclaim against her, arguing the motor vehicle accident was solely caused by the co-defendant Yik.

The plaintiff Pagano opposed, seeking a ruling of at least 1% liability against Anderson or, alternatively, a trial to determine and apportion liability.

The court found conflicting evidence regarding the accident circumstances and drivers' actions, making it impossible to make necessary findings of fact or apply the law without a full evidentiary record and credibility assessments.

The motion for summary judgment was dismissed, and the action was ordered to proceed to trial.

The defendant Carlos Sosa brought a motion for summary judgment to dismiss the action against him following a motor vehicle accident.

The plaintiff, Frank Clarke, opposed the motion, arguing that issues of contributory negligence, including Sosa's speed, lookout, and potential alcohol consumption, required a trial.

The court dismissed the motion, finding that complex factual disputes, conflicting expert evidence requiring detailed mathematical assessment, and credibility issues could not be justly and fairly determined on a paper record, especially given the presence of a jury notice.

The plaintiff, Margaret Ozimkowski, moved for partial summary judgment on liability against the defendant, Luc Raymond, following a rear-end motor vehicle collision on an icy road.

The defendant argued that the plaintiff's actions and the icy road conditions created a genuine issue for trial, and that granting partial summary judgment would risk inconsistent findings with his third-party claim against the County of Lanark.

The court found that the defendant failed to disprove his negligence, as the plaintiff's stop was reasonable given the conditions and visible emergency lights.

The court also determined that there was no risk of inconsistent findings with the third-party claim, as the issues were distinct.

Partial summary judgment on liability was granted to the plaintiff, with damages to be assessed at trial.

The defendant Amy L. Patterson moved for summary judgment to dismiss the action and cross-claim against her following a motor vehicle accident.

The plaintiff took no position.

The court granted leave for the motion, finding no genuine issue requiring a trial regarding Ms. Patterson's liability.

The evidence indicated that Ms. Patterson, who had the right of way, could not have avoided the collision, which occurred too quickly.

The motion was granted, dismissing the action and cross-claim against Ms. Patterson, and costs were awarded to her.

The plaintiffs moved for summary judgment on liability following a motor vehicle accident.

The court found the defendant driver negligent for driving too fast for conditions, losing control, and crossing into oncoming traffic.

The registered owner and beneficial owner (parents of the driver) were found vicariously liable under the Highway Traffic Act.

Claims of contributory negligence against the plaintiff driver were dismissed due to lack of evidence.

The matter was ordered to proceed to trial for assessment of damages and the threshold issue under the Insurance Act.

The plaintiff, Igal Shapiro, claimed insurance benefits from Economical Mutual Insurance Company (his father's insurer) or compensation from the Motor Vehicle Accident Claims Fund after being hit by an unidentified driver.

Economical and the Superintendent of Financial Services brought motions for summary judgment to dismiss the claim, arguing that the plaintiff failed to prove he was hit by an "unidentified automobile" as defined by the Insurance Act and the MVAC Act, and did not make reasonable efforts to identify the driver.

The court found that the plaintiff did not meet his burden of proving injury by an "unidentified motorist" and that the evidence presented was insufficient to raise a genuine issue for trial.

The motions for summary judgment were granted, dismissing the plaintiff's action against Economical and implicitly against the Superintendent.