Todd J. McCarthy

The plaintiffs advanced Family Law Act claims for loss of care, guidance, and companionship following the death of a sibling in a motor vehicle accident.

Liability was not disputed, leaving quantum as the sole issue.

The court reviewed jurisprudence concerning the scope of compensable loss under s. 61 of the Family Law Act, emphasizing that such awards must be assessed objectively and do not compensate grief or emotional anguish.

Considering the unusually close lifelong relationship among the siblings, but distinguishing the case from those involving dependency or daily interaction, the court assessed damages for loss of companionship at $35,000 for each surviving sibling.

Following a successful appeal reducing a costs assessment, the court determined the appropriate costs of the appeal.

The moving parties had substantially reduced the costs awarded to the plaintiffs by the assessment officer through the application of the proportionality principle.

Applying the general rule that costs follow the event, the court awarded the successful appellants partial indemnity costs.

The costs of the appeal were fixed at $7,000 inclusive of HST and disbursements.

The appellants were permitted to set off this amount against the outstanding balance of costs payable to the plaintiff.

Appeal from a Certificate of Assessment of Costs following settlement of a motor vehicle accident action.

The plaintiffs accepted a pre‑trial settlement of $190,000 plus costs to be assessed, after which an assessment officer awarded partial indemnity costs exceeding $231,000.

The defendants appealed, arguing that the assessment officer failed to properly apply Rules 57.01(1) and 58.06 of the Rules of Civil Procedure and failed to consider the principle of proportionality.

The court held that the assessment officer committed errors in principle by misdirecting himself regarding the applicable rules and by failing to address proportionality in light of the settlement amount.

The costs award was reduced to $102,000 inclusive of fees, HST, and disbursements.

The intervener insurer brought a motion to determine whether it could deny coverage based on an Excluded Driver Endorsement signed by the defendant driver.

The court found that the form used by the insurer was not the standard form approved by the Superintendent of Financial Services, as it failed to list the specific vehicles to which the exclusion applied.

Furthermore, the insurer failed to prove it had delivered a copy of the endorsement to the insured upon renewal.

The court held the insurer could not rely on the unapproved form and is obligated to defend and indemnify the defendant.

Following a jury trial in a motor vehicle accident action, the jury awarded the plaintiff $10,000 in general damages but no other damages.

Because the statutory deductible under the Insurance Act exceeded the award, the resulting judgment was effectively zero dollars.

The defendant had previously offered to settle for $5,000, which in practical effect was also equivalent to zero after the deductible.

Both parties sought partial indemnity costs and argued the Rule 49 consequences of the offers to settle.

The court held that both the offer and the trial result were artificially characterized as monetary outcomes when in reality each amounted to zero recovery.

Exercising its discretion under the Rules of Civil Procedure and the Courts of Justice Act, the court ordered that neither party recover costs.

The applicant insurer appealed a loss transfer arbitration decision under s. 275 of the Insurance Act arising from a motor vehicle collision between vehicles insured by the parties.

The arbitrator found the applicant insurer’s insured 100% at fault under the Fault Determination Rules and ordered the loss transferred.

On judicial appeal, the court applied the reasonableness standard of review applicable to loss transfer arbitrations and emphasized the deference owed to specialized arbitrators interpreting their home statute and regulatory scheme.

The court held that the arbitrator reasonably applied Rule 14.2 and, alternatively, correctly determined fault under ordinary legal principles.

The arbitration decision fell within the range of acceptable outcomes and was upheld.

Following a jury trial in a motor vehicle personal injury action, the plaintiffs moved for an order staying the determination of costs pending satisfaction of the judgment or resolution of a separate insurance coverage dispute involving the liable defendant and his insurer.

The plaintiffs argued that costs should be deferred because the verdict was under appeal and because the defendant’s ability to pay costs was uncertain pending determination of coverage, particularly given their intention to seek a Sanderson costs order.

The court held that the existence of an appeal or unresolved insurance coverage litigation does not justify departing from the usual practice of fixing costs after trial.

The ability to pay costs is only one factor in determining whether a Sanderson order is appropriate and does not require postponement of the costs determination.

The motion for a stay of the costs determination was dismissed.

Following settlement negotiations in a personal injury action arising from a motor vehicle accident, the parties sought a judicial determination of whether an earlier Rule 49 offer to settle remained open for acceptance after the defendants delivered a subsequent “revised” offer.

The plaintiffs purported to accept the original offer after the revised offer clarified the allocation of damages and limited prejudgment interest to certain heads of damages.

The court held that the revised offer constituted a new offer that implicitly withdrew the earlier offer.

Even if the original offer had remained open, the plaintiffs could not reasonably rely on its literal wording because they knew the revised terms limited the interest calculation.

The court concluded that the original offer was not open for acceptance when the plaintiffs attempted to accept it.

Following a motor vehicle accident involving an uninsured driver who struck a pedestrian, the driver and her spouse sought a declaration that the spouse’s automobile insurer was required to indemnify them after the spouse added the vehicle to his existing policy the day after the accident.

The insurer alleged the addition was obtained through intentional misrepresentation, including false statements about ownership and the failure to disclose the prior accident.

The court found the spouse had no insurable interest in the vehicle and that both individuals engaged in a scheme to deceive the insurer by backdating coverage and concealing material facts.

Under s. 233 of the Insurance Act, their right to recover indemnity was forfeited due to fraud and false statements.

The action was dismissed and the uninsured motorist insurer was required to respond to the personal injury claim.

The representative plaintiff brought a motion for approval of a settlement agreement in a class action arising from the loss of an unencrypted USB key containing the personal information of over 83,000 individuals who received H1N1 vaccines.

The proposed settlement established a claims process for class members who suffered economic harm, with a claim period ending in August 2016, but provided no direct cash payments for anxiety or distress.

Despite objections from some class members regarding the lack of immediate compensation and the length of the claims period, the court approved the settlement as fair and reasonable.

The court noted that the risk of identity theft had largely dissipated over time, making the prospects of success at trial poor, and also approved class counsel fees of $500,000 plus a percentage of future claims.

The defendant brought a motion to stay an Ontario action arising from a motor vehicle accident that occurred in Alberta, arguing the Ontario court lacked jurisdiction.

The plaintiffs attempted to establish a presumptive connecting factor based on the fact that the defendant’s insurer was an Ontario corporation and might ultimately be liable under the Insurance Act.

Applying the framework recently articulated in Club Resorts Ltd. v. Van Breda, the court held that none of the recognized presumptive connecting factors were present.

The court rejected the proposed new factor relating to the insurer’s domicile, finding it inconsistent with the principles of certainty, order, and predictability in private international law.

The Ontario court therefore lacked jurisdiction and the action was stayed.

Following dismissal of a claim for payment of an accidental death benefit under a group insurance policy, the successful defendant sought partial indemnity costs exceeding $28,500.

The central issue at trial had been whether the deceased insured’s blood alcohol concentration exceeded the policy exclusion threshold of .08, which the court ultimately found it did based on toxicology evidence.

In determining costs under s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court considered the plaintiff’s reasonable basis for pursuing the claim, limitations in the toxicology evidence before trial, and the plaintiff’s financial circumstances.

Emphasizing fairness, proportionality, and access to justice, the court significantly reduced the costs award despite the defendant’s success and an offer to settle.

The defendant was awarded modest all-inclusive costs.

The Litigation Administrator in a class action sought court approval for its accounts totaling $65,455.25.

The defendants objected, arguing the fees significantly exceeded the initial estimate of $21,500.00.

The court applied the principles for passing a receiver's accounts and found the work was necessary, well done, and the hourly rates were known in advance.

The court approved the accounts up to the end of December 2011, noting that changes in the notice process increased the complexity and expense of the administrator's work.

The plaintiff sought payment of a $100,000 accidental death benefit under a group life insurance policy after the insured died in a motor vehicle accident.

The insurer paid the basic life benefit but relied on an exclusion denying coverage where an accident occurs while the insured operates a vehicle with a blood alcohol concentration exceeding 80 mg/100 ml.

Expert evidence was called regarding the reliability of post‑mortem toxicology testing and the insured’s blood alcohol level at the time of death.

The court accepted the reliability of the femoral blood sample analysis showing a concentration of 211 mg/100 ml and held the insurer met its burden of proving the exclusion on a balance of probabilities.

The court further held the exclusion did not require proof that alcohol caused the accident, only that the accident occurred while the insured’s BAC exceeded the specified level.