T. H. Rachlin

Following a successful appeal by the insurer that decertified a class proceeding due to a change in the law, the parties made submissions on costs.

The insurer sought costs of the appeal and the certification motion, while the representative plaintiff and the Class Proceedings Fund argued for no costs.

The Divisional Court declined to award costs to either party for the appeal, the motion for leave to appeal, or the certification motion, finding that the proceeding raised novel issues of law and matters of broad public interest under section 31 of the Class Proceedings Act.

Three insurance companies disputed the funding of a $1,995,000 settlement arising from a motor vehicle accident.

The primary insurer's liability was capped at the $200,000 statutory minimum due to the insured's material misrepresentation regarding the vehicle's use as a taxi.

The two underinsured motorist insurers were ordered to contribute the balance on a pro rata basis in proportion to their policy limits.

On appeal, the Court of Appeal upheld these findings but reversed the motion judge's decision that the primary insurer should bear all costs, ordering instead that the three insurers share the $155,000 costs component equally.

In a personal injury appeal arising from a motor vehicle accident, the appellants challenged a damages award exceeding $1 million on the basis that the trial judge misapprehended the plaintiff's evidence, the medical evidence, and the vocational evidence concerning future work capacity, surgery, retraining, and retirement.

The Court of Appeal held that the award flowed from a series of serious factual errors and assumptions that could not be justified on the record, making a new trial necessary.

The court also held that, while contingency-like fee arrangements may exist between solicitor and client, a risk premium should not be included in a solicitor and client costs assessment under Rule 49 following an offer to settle.

Appeal allowed, judgment set aside, and new trial directed.

The respondents were involved in a motor vehicle accident and initially diagnosed with soft tissue injuries.

More than two years later, a CT scan revealed a herniated disc, prompting them to commence a tort action.

The appellant argued the action was statute-barred under the two-year limitation period in the Highway Traffic Act.

The Supreme Court of Canada held that the discoverability principle applies to the limitation period.

Because the right of action does not arise until the injury meets the statutory threshold under the Insurance Act, the limitation period does not begin to run until the material facts of sufficient injury are reasonably discoverable.

The appeal was dismissed.