Sean T. Miller

This is an appeal from an order dismissing an action, primarily sounding in defamation, under Ontario's anti-SLAPP legislation (s. 137.1 of the Courts of Justice Act).

The motion judge had dismissed the action, finding that the plaintiff (appellant) had not discharged his burden under s. 137.1(4).

The Court of Appeal found that the motion judge erred in his consideration of the respondents' defences to the defamation claims and in his weighing of the public interest in the expressions against the plaintiff's interest in proceeding.

The Court of Appeal concluded that the plaintiff had established grounds to believe the action had substantial merit and the respondents had no valid defence, and that the public interest in permitting the action to continue outweighed the public interest in protecting the impugned expressions.

The appeal was allowed, and the action was permitted to proceed in its entirety.

This appeal concerned a priority and coverage dispute between two automobile insurers regarding third-party liability for the driver/lessee of a leased vehicle involved in an accident.

The appellant, Continental Casualty Company, insurer for the car rental company, challenged the application judge's finding that it was the priority insurer over BelairDirect Insurance Company, which had initially, but erroneously, believed it covered the driver.

The Court of Appeal dismissed Continental's appeal, affirming that BelairDirect was not bound by a settlement or waiver, as its initial actions were based on a mistaken belief of coverage and no binding agreement to abandon priority disputes was formed.

This endorsement addresses costs and damages following the dismissal of the plaintiff's anti-SLAPP action against several defendants.

The court applied the presumptive full indemnity costs rule under s. 137.1(7) of the Courts of Justice Act, finding no reason to depart from it given the retaliatory nature of the plaintiff's litigation and his failure to provide a costs outline for comparison.

The court fixed costs for each successful defendant, making minor reductions from the amounts claimed.

While damages were sought by two defendants under s. 137.1(9), only one was awarded, as the court found the other defendant's conduct contributed to her stress, making a damages award inappropriate.

This is an appeal concerning an insurer's duty to defend.

The appellant, found not criminally responsible for an assault due to a psychotic episode, sought coverage under his homeowner's policy.

The insurer denied coverage based on an exclusion for bodily harm arising from intentional or criminal acts.

The application judge found the negligence claim derivative of an intentional tort and that the exclusion applied.

The Court of Appeal upheld this decision, finding no error in the application judge's conclusion that the true nature of the claim was an intentional act, despite the appellant's mental state, thus affirming the applicability of the exclusion clause.

The applicant insurer sought a declaration that the respondent insurer had a duty to defend the driver of a rental vehicle in a motor vehicle accident tort action.

The applicant had initially defended the driver based on a mistaken belief that he was covered under his mother's policy.

Upon discovering the error, the applicant asked the respondent, who insured the rental vehicle, to assume the defence.

The respondent refused, arguing the applicant was estopped.

The court found the driver was not insured by the applicant, there was no binding agreement to abandon the priority dispute, and promissory estoppel did not apply because the respondent suffered no detrimental reliance.

The respondent was declared the priority insurer with a duty to defend.

The applicant, who was found Not Criminally Responsible (NCR) for an aggravated assault due to schizophrenia, sought a declaration that his insurer owed a duty to defend him in a civil action brought by the victim.

The victim's claim was framed in negligence.

The court found that the negligence claim was derivative of the intentional tort of assault.

Furthermore, the court held that despite the NCR finding, the applicant's actions were both intentional and criminal within the meaning of the insurance policy's exclusion clauses.

The application was dismissed, and the insurer was found to have no duty to defend.

The defendant in a certified class action moved for partial summary judgment and sought leave under Rule 39.02 to admit an expert psychiatric report obtained after the representative plaintiff was cross-examined on her affidavits.

The plaintiff objected, arguing the defendant split its case and failed to comply with the court-ordered timetable.

The court dismissed the motion for leave, finding the defendant provided no adequate explanation for failing to obtain the evidence earlier and that admitting the late report would cause non-compensable prejudice to the plaintiff given the agreed-upon timetable.

The appellant appealed the dismissal of his dental malpractice claim.

During a tooth extraction, the appellant exhibited signs of distress, prompting the respondent dentist to administer nitroglycerin under the belief the appellant was having a heart attack.

The appellant later suffered a bradycardic event at the hospital and claimed psychological injuries.

The Divisional Court upheld the trial judge's findings that the respondent met the standard of care in an emergency situation and that there was no factual causation between the administration of nitroglycerin and the subsequent hospital event.

The appeal was dismissed.

Jevco Insurance Company sought reconsideration of a Tribunal decision awarding C.W. retroactive Attendant Care Benefits with interest.

Jevco argued the Tribunal made errors of law and fact regarding the award of interest, the imposition of a fiduciary duty, findings on Jevco's coverage denial, and the application of the pay-first provisions under O. Reg. 283/95.

The Tribunal dismissed the reconsideration request, finding that Jevco's non-coverage position in the related tort proceeding justified C.W.'s delay in applying for benefits, and that the unique circumstances of the case meant the pay-first provisions did not apply.

The original decision was upheld.

The plaintiff, David George Owen, brought a negligence claim against dentist Sukhjeevan Bains following a tooth extraction procedure during which Owen lost consciousness and later experienced a bradycardiac event at the hospital, leading to a "near death experience" and psychological injury.

The court dismissed the claim, finding that Owen failed to prove on a balance of probabilities that Dr. Bains's administration of nitroglycerin (NTG) caused the subsequent bradycardiac event at the hospital.

The court determined that Owen's underlying health conditions were the cause of the events, and Dr. Bains's actions were reasonable given the perceived emergency.

The applicant filed a Request for Reconsideration of a decision that dismissed his application for statutory accident benefits following a motor vehicle accident in Quebec.

The applicant alleged errors of law and fact and breaches of procedural fairness.

The adjudicator found that the applicant had a full opportunity to be heard and that no errors of law or fact were made in the original decision.

The request for reconsideration was dismissed.

A pedestrian was catastrophically injured when struck by a vehicle whose owners had applied for automobile insurance.

The insurer issued a one-year policy but subsequently purported to rescind it based on material misrepresentation regarding one owner's driving record, sending a letter stating the coverage was "void from the inception date" approximately two months before the accident.

The injured plaintiff obtained judgment against the at-fault driver and owner but was unable to collect.

The plaintiff then sued the insurer under section 258(1) of the Insurance Act, which permits innocent third parties to recover directly from the at-fault driver's insurer.

The motion judge dismissed the action, finding the insurer had validly rescinded the contract at common law, making it void ab initio.

The Court of Appeal allowed the appeal, holding that an automobile insurer cannot rescind a contract at common law but must comply with the statutory scheme governing termination of automobile insurance contracts.

The applicant, a pedestrian who sustained catastrophic injuries when struck by a vehicle, sought retroactive attendant care benefits from the date of the accident in 2007 until she formally applied in 2015.

The respondent insurer had denied coverage in a related tort action for years before finally admitting it insured the vehicle.

The Tribunal found that it was initially impossible, and later impractical, for the applicant to submit her application earlier due to the insurer's non-coverage position and failure to notify her of her rights.

The Tribunal awarded retroactive attendant care benefits of $6,000 per month with interest accruing from the date of her hospital discharge in 2007.

Intact Insurance Company moved to consolidate an accident benefits action with a tort action arising from the same motor vehicle accident.

The plaintiff opposed, arguing complexity and potential jury confusion due to different causation tests and legal theories (e.g., crumbling skull) between tort and accident benefits claims.

The court, applying Rule 6.01 of the Rules of Civil Procedure and factors from *10148664 Ontario Limited*, found that the gateway criteria for consolidation were met.

Despite the complexities, the court concluded that consolidation was appropriate, noting that such claims are routinely consolidated.

The court ordered consolidation but directed a case conference to address procedural issues and frame jury questions, particularly on causation, to avoid a mistrial.

The applicant tripped in a pothole and fell while walking towards her parked minivan in a parking lot.

She applied for statutory accident benefits, claiming the incident was an 'accident' under section 3(1) of the Schedule.

The Tribunal applied the two-part purpose and causation test and found that walking towards a parked car does not satisfy the purpose test.

Furthermore, the pothole was an intervening act that directly caused the injuries, breaking the chain of causation.

The application was dismissed.

The applicant was injured in an ATV accident 27 days after purchasing the vehicle, but only one day after taking physical possession of it.

He applied for an income replacement benefit, which the insurer denied on the basis that he was operating an uninsured vehicle.

The Tribunal held that 'delivery' under the standard automobile policy means constructive possession, which occurred on the date of purchase when the applicant had authority to determine where the ATV would go.

Because the applicant failed to notify the insurer within 14 days of constructive possession, the ATV was uninsured.

The Tribunal further found the applicant did not reasonably believe the ATV was insured, precluding him from receiving benefits under s. 31(1)(a)(i) of the Schedule.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits from the insurer.

The parties were unable to resolve their disputes through mediation, and the applicant applied for arbitration.

Prior to the hearing, the parties consented to the dismissal of the application for arbitration without costs.

The arbitrator dismissed the application and ordered no costs.

The applicant was injured in a motor vehicle accident as a pedestrian and applied for income replacement benefits.

The insurer denied the benefits and later brought a motion arguing the applicant was statute-barred from proceeding to arbitration because more than two years had passed since the denial.

The arbitrator found that the insurer's denial letter was clear and unambiguous, as evidenced by the applicant's subsequent participation in mediation.

Because the applicant failed to commence arbitration within two years of the denial or 90 days after mediation failed, the application for income replacement benefits was statute-barred.

The applicants sought declarations that their rental property was insured for water damage from a burst pipe and that the insurer was liable for damages or repair costs.

The insurer denied coverage, citing a vacancy exclusion clause.

The court found the property was vacant as per the policy definition, as no one was living there with no intention of returning, and occasional checks did not constitute occupancy.

The court also rejected the applicants' estoppel argument, finding no detrimental reliance from the insurer's initial emergency repair work.

The application for coverage was dismissed.

The applicant sought accident benefits following a motor vehicle accident but failed to attend a pre-hearing discussion and the subsequent arbitration hearing.

The applicant's counsel sought to be removed from the record but was denied for failing to comply with Rule 9.7 of the Dispute Resolution Practice Code.

As the applicant failed to appear and presented no evidence to support her claims, the application for arbitration was dismissed without costs.