Todd J. McCarthy

The plaintiff was injured in a motor vehicle accident and awarded damages by a jury.

The defendant brought a threshold motion arguing the plaintiff's injuries did not meet the statutory requirement of a permanent serious impairment.

The court reviewed medical evidence showing the plaintiff suffered from chronic pain, depression, and cognitive deficits from a mild traumatic brain injury, which prevented him from completing high school or working.

The court found the injuries substantially interfered with his usual activities of daily living and were continuous and permanent.

The defendant's motion was dismissed.

The respondent was injured in a motor vehicle accident in Las Vegas, Nevada in 2005.

The dispute concerns her entitlement to benefits under the OPCF 44R Endorsement in her Ontario motor vehicle insurance policy.

At a June 30, 2016 pre-trial, both counsel agreed that Ontario law applies and signed a Rule 50.08(3) certificate confirming this.

Subsequently, the respondents' counsel learned of the Chomos decision, which held that threshold and collateral benefits questions are governed by the law of the place where the accident occurred.

At a second pre-trial on January 25, 2018, the respondents' counsel sought to withdraw the choice of law agreement.

The motion judge dismissed the appellant's cross-motion for a declaration that Ontario law applies and declared that Nevada law will apply.

The appellant appealed, arguing the parties had reached a binding litigation agreement.

The Court of Appeal dismissed the appeal, finding no binding agreement existed and that the respondents' counsel had made an inadvertent admission based on a misunderstanding of the law.

The defendant, completely successful at a jury trial where plaintiffs claimed $4.5 million, sought partial indemnity costs of $180,787.95.

The plaintiffs opposed, arguing the lack of a Rule 49 offer to settle should deny costs and that the quantum was excessive.

The court affirmed that costs should follow the event, even without a formal offer, and ordered costs against all plaintiffs jointly and severally.

The court reduced the defendant's claimed fees by disallowing law clerk attendance at trial and adjusting hourly rates for counsel and law clerks.

Expert report costs were also reduced from $27,912.50 to $15,000.00.

Travel costs for counsel and the instructing client were allowed due to the trial's transfer to Thunder Bay at the plaintiffs' convenience.

The plaintiff in a motor vehicle accident case brought a motion to exclude potential jurors who pay auto insurance premiums, arguing they have an inherent conflict of interest.

The plaintiff sought to introduce survey evidence suggesting residents would limit damages to lower their premiums.

The court excluded the survey evidence as inadmissible hearsay that failed the threshold test for expert evidence.

The court dismissed the motion, finding no statutory basis in the Juries Act to exclude such jurors or permit a broad challenge for cause, and no evidence of widespread bias to justify striking the jury notice.

The plaintiff, Jeffrey Bradfield, sought a declaration of entitlement to recover judgment against the defendant insurer, Royal and Sun Alliance Insurance Company (RSA), under section 258 of the Insurance Act.

The action arose from a motor vehicle collision where the insured, Devecseri, was in breach of his M2 driver's license condition (zero blood alcohol).

Bradfield argued that RSA had waived its right to rely on the policy violation or was estopped from doing so due to its conduct in defending the Estate for three years without a reservation of rights.

The court found that RSA's failure to obtain the Coroner's report despite being directed to, and its subsequent defense of the claim for three years, amounted to a waiver by conduct.

Prejudice to the insured was presumed due to the delay.

The court declared Bradfield entitled to recover $800,000 from RSA.

The Applicant was previously found to have suffered a catastrophic impairment and was awarded an income replacement benefit and a special award.

In this expense hearing, the Applicant sought costs for the arbitration.

The arbitrator found the Applicant was wholly successful and entitled to expenses.

Applying a 4:1 ratio of preparation to hearing time and allowing costs for a preliminary issue hearing, the arbitrator awarded $28,306.50 in legal fees and $17,000.00 in disbursements, for a total of $45,306.50 inclusive of HST.

The defendant insurer brought a cross-motion for a declaration that Ontario law applied to the assessment of damages in an underinsured motorist claim arising from a motor vehicle accident in Nevada.

The defendant relied on an agreement reached at a pre-trial conference where plaintiffs' counsel conceded Ontario law applied.

The plaintiffs sought to withdraw this admission, arguing it was based on a mistake of law regarding the interpretation of the OPCF-44R Endorsement and ignorance of binding appellate jurisprudence.

The court dismissed the defendant's motion, allowing the plaintiffs to withdraw the admission as there was no consensus ad idem and enforcing the agreement would cause significant prejudice to the plaintiffs.

The plaintiff obtained a net jury verdict of $5,760.00 following a four-week trial for a motor vehicle accident.

The defendants had made three offers to settle, the last being $250,000.00 plus costs, which was compliant with Rule 49.10.

The court considered the offers to settle and the factors under Rule 57.01.

The court ordered the plaintiff to pay the defendants $70,000.00 in partial indemnity costs, noting that the plaintiff would have been better off accepting any of the defendants' offers.

The applicant sought a special award under s. 282(10) of the Insurance Act, arguing the insurer unreasonably withheld and delayed payment of income replacement benefits (IRB) and catastrophic impairment benefits following a motor vehicle accident.

The arbitrator found that while a special award could not be based solely on the catastrophic impairment determination, the insurer's handling of the IRB claim justified an award.

The insurer had relied on incomplete and inconclusive reports to terminate benefits, ignoring a multitude of conclusive medical reports, including from its own assessors, that supported the applicant's inability to work.

The arbitrator concluded this demonstrated stubborn, inflexible, and unreasonable behaviour, and ordered the insurer to pay a special award of 35% of the owing IRB total, plus 2% compound interest.

The applicant was injured in a motor vehicle accident and sought income replacement benefits and a determination of catastrophic impairment.

The insurer denied the benefits, arguing the applicant's psychological impairments were caused by pre-existing conditions, including a history of sexual abuse.

The arbitrator found that the applicant was functioning as a productive member of society prior to the accident and that, but for the accident, she would not be in her current condition.

The arbitrator preferred the evidence of the applicant's expert, finding the applicant suffered a complete inability to engage in employment and sustained a catastrophic impairment due to marked psychological impairments.

Following a jury verdict in a motor vehicle accident trial, the court determined the application of statutory deductibles and collateral benefits to the damages awarded.

The jury awarded $42,250 for general damages and $76,121 for past loss of income.

Applying binding appellate authority, the court applied the 2015 statutory deductible to the general damages, reducing the net award to $4,266.67, plus pre-judgment interest.

The court also deducted collateral benefits, including accident benefits and long-term disability settlements, from the past loss of income award, reducing it to zero.

The plaintiff was awarded a total judgment of $5,760.

On a threshold motion under s. 267.5 of the Insurance Act, the court held that the plaintiff established permanent serious impairment of an important physical, mental or psychological function arising from a rear-end motor vehicle collision.

The evidence supported a finding that a whiplash injury led to permanent debilitating chronic pain requiring regular injections and strong medication, notwithstanding pre-existing pain, anxiety, and depression.

The court also held that the medical report complied in substance with s. 4.3(4) of Regulation 461/96 even though it did not recite the regulation's exact wording.

The plaintiff was therefore entitled to recover non-pecuniary damages subject to the statutory deductible and the jury verdict.

The plaintiff moved to certify a class action against a children's aid society and other defendants following a privacy breach where a confidential document containing personal information of 284 individuals was accessed and posted online.

The defendants consented to or did not oppose certification.

The court found that the pleadings disclosed a cause of action, including the tort of intrusion upon seclusion, and that all criteria for certification under section 5(1) of the Class Proceedings Act, 1992 were satisfied.

The motion for certification was granted.

Following the plaintiff's acceptance of the defendant's offer to settle a motor vehicle accident claim for $30,000 plus partial indemnity costs and disbursements, the court was tasked with assessing the costs.

The plaintiff sought $72,278 in fees and $121,045 in disbursements, while the defendant argued for a total of $55,000 based on proportionality.

The court reduced the fees to $30,000 to reflect proportionality but allowed the full $121,045 for disbursements, noting they were reasonably incurred before the defendant produced a contradictory engineering report and made the settlement offer.

The appellant appealed a trial judgment in a motor vehicle accident case, alleging various trial errors constituted a miscarriage of justice, including leading questions by plaintiff's counsel, mention of independent medical examinations, discussion between counsel and plaintiff after cross-examination, mention of insurance, admission of opinion evidence from a body shop manager regarding vehicle speed, and the trial judge's charge excluding a zero award of general damages.

The appellant also sought leave to appeal the costs award, alleging the trial judge failed to give sufficient weight to proportionality.

The Court of Appeal dismissed both the appeal and the leave to appeal on costs, finding no error in the trial judge's handling of the trial events or costs decision.

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

After reaching a settlement at a pre-hearing, the applicant failed to execute the settlement documents and stopped instructing his counsel, who was subsequently removed from the record.

The insurer brought a motion to dismiss the claim.

The applicant did not respond to the motion or participate further.

The arbitrator found the application abandoned and frivolous, dismissing it under Rule 68.1 of the Dispute Resolution Practice Code.

The insurer was awarded $500 in expenses.

Following a trial where the jury found no negligence or liability against the defendants, the defendant Cedar Fair Entertainment Company sought costs.

The court considered the factors under Rule 57.01 of the Rules of Civil Procedure and Cedar Fair's Rule 49 offer to settle.

Despite Cedar Fair's complete success at trial, the court applied the principle of proportionality, finding the requested costs disproportionate to the case's complexity and the amount reasonably at issue.

A global costs award of $45,000, all-inclusive, was made in favour of Cedar Fair, to be paid by the plaintiffs.

This costs endorsement arises from the plaintiffs' acceptance of the defendant's offer to settle for $50,000, which included partial indemnity costs, HST, and disbursements to the date of the offer.

The court assessed the plaintiffs' costs, noting that the total costs claimed were disproportionate to the settlement amount.

Applying the principle that costs must be fair and reasonable from the perspective of the unsuccessful party, the court fixed the plaintiffs' partial indemnity costs at $22,500 plus HST, along with disbursements incurred up to the offer date, leaving the exact disbursement amount for counsel to resolve.

Two competing class actions were commenced following a cyberattack and privacy breach at Casino Rama.

The plaintiffs in the Kaplan Action and the plaintiff in the Harman Action both sought carriage of the proceeding.

The court applied the seven non-exhaustive factors for determining carriage, noting that the Kaplan Action counsel had more class action experience, a better class definition, and a more refined theory of the case.

The Harman Action counsel argued that their action would proceed faster in the Oshawa court, providing speedier access to justice.

The court rejected the speed argument as determinative on the facts and granted carriage to the Kaplan Action, staying the Harman Action.

The appellant appealed a motion judge's decision dismissing his motion for an extension of time to serve a Third Party Claim on Rosa Cavallo nunc pro tunc and for validation of service based on the pleading coming to her attention.

The appellant had issued the Third Party Claim alleging that foliage on the Cavallos' property created a hazard to motorists.

Rosa had moved to Italy and her whereabouts were unknown.

The motion judge dismissed the motion, finding the evidence regarding service attempts was unreliable hearsay and that the pleading had not come to Rosa's attention.

The motion judge also refused to dispense with personal service, noting the potential liability far exceeded the policy limits and the case was weak.

The Court of Appeal upheld the dismissal, finding no error in the motion judge's conclusions regarding the hearsay evidence and the requirements of the Rules of Civil Procedure.