Todd J. McCarthy

The plaintiff sued the defendants for personal injuries sustained at a party.

The defendant McKellar's insurer appointed counsel to defend him under a reservation of rights, as the claim exceeded policy limits.

McKellar retained personal counsel for his over-limits exposure.

The insurer-appointed counsel negotiated a settlement within policy limits, which the plaintiff accepted.

McKellar's personal counsel objected to the settlement and brought a motion to be appointed co-counsel, seeking to have his legal fees paid from the settlement proceeds.

The court dismissed the motion, finding no divergence of interest between the insurer and the insured, and granted the plaintiff's motion for judgment in accordance with the settlement.

The plaintiff suffered a severe traumatic brain injury in a multi-vehicle highway collision.

He lost control of his vehicle after being cut off by an unidentified driver, struck the median, and was subsequently T-boned by the defendant's vehicle.

The court found the unidentified driver 70% liable and the defendant 30% liable for following too closely.

The plaintiff was awarded over $3.2 million in damages, primarily for future care costs.

The plaintiff's claim against his own insurer for unidentified motorist coverage was dismissed because the identified defendant was found partially liable.

The plaintiff in a motor vehicle accident case moved to admit his out-of-court statements to police for substantive use, as he suffered from post-traumatic amnesia and could not testify to the events.

The court admitted the statements under the principled approach to hearsay, finding them necessary and sufficiently reliable, corroborated by an independent witness.

The court also excluded the investigating officer's written commentary in the accident report, ruling it was inadmissible opinion evidence beyond the officer's expertise.

The plaintiff in a motor vehicle accident action moved to admit several 911 calls into evidence under the principled approach to hearsay.

The plaintiff suffered a head injury and had no memory of the collision, and the callers were either unavailable or had impaired memories, establishing necessity.

The court found the calls possessed threshold reliability as they were made contemporaneously with the events to emergency services without motive to fabricate.

The motion was granted, and the 911 calls were ruled admissible.

The defendants appealed a motion judge's decision regarding the applicable pre-judgment interest rate and the quantum of costs following a settlement in a motor vehicle accident claim.

The Divisional Court held that the legislative amendment reducing the pre-judgment interest rate was substantive and did not apply retroactively.

The Court also upheld the motion judge's decision to award the plaintiff unrecovered costs from a statutory accident benefit arbitration, finding that the recovery of those benefits constituted a benefit to the defendants in the tort action.

The appeal was dismissed with costs awarded to the plaintiff.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiff's claims for general damages, a catastrophic impairment designation, and income replacement benefits arising from a motor vehicle accident.

The court granted summary judgment dismissing the claims for general damages and catastrophic impairment, finding no evidence to support the bad faith claim and no expert evidence establishing that the plaintiff met the statutory definition of catastrophic impairment.

However, the court dismissed the motion regarding income replacement benefits, finding that conflicting medical evidence about whether the plaintiff's seizure disorder and cognitive decline were caused by the accident or a pre-existing condition created a genuine issue requiring a trial.

The insurer appealed an arbitrator's decision allowing the insured to rescind a 2001 settlement of statutory accident benefits and proceed with arbitration in 2013.

The Director's Delegate upheld the arbitrator's finding that the settlement was voidable because the insurer failed to comply with the disclosure requirements of the Settlement Regulation, specifically regarding the commuted value of benefits and maximum potential benefits.

Furthermore, the insured's claim was not statute-barred because the insurer's original refusal of benefits did not adequately inform her of the dispute resolution process, rendering the refusal invalid to trigger the limitation period under the Insurance Act.

The Limitations Act was also found inapplicable to the statutory right of rescission.

This costs endorsement followed a five-day jury trial where the jury found Mr. Kane solely responsible for a motor vehicle accident, absolving the Estate of Ellen Browne of any contributory negligence.

State Farm, as statutory third party, stood in the plaintiffs' shoes.

The successful defendants sought costs on a partial indemnity scale.

The court found the defendants entitled to costs on a partial indemnity basis, rejecting State Farm's suggestion that both insurers bear their own costs.

The court reduced the claimed disbursements for a forensic engineer whose evidence was largely disregarded and also reduced the claimed legal fees, finding the aggregate time dockets excessive given the case's complexity.

The final costs were fixed at $73,051.81, payable by State Farm.

This appeal concerned a priority dispute between insurers over statutory accident benefits payable after a motor vehicle accident, turning on whether the injured claimants were principally dependent for financial support on the named insured at the time of the accident.

The court held that appeals from insurance arbitrations are governed by the administrative law framework, and that the applicable standard of review was reasonableness rather than correctness.

Applying that standard, the court found the arbitrator's decision unreasonable because it imposed an impermissible permanence requirement on a recent relationship, adopted a categorical approach inconsistent with the dependency jurisprudence, and relied on speculation rather than the evidentiary record.

The appeal was dismissed and the respondent insurer remained entitled to have the arbitrator's award set aside.

The plaintiffs sought partial indemnity costs following a six-week jury trial for personal injuries and Family Law Act claims, where a jury awarded damages of $141,500.

The defendant had made a nominal settlement offer of $7.

The court awarded partial indemnity fees of $159,249.90 plus HST and disbursements, rejecting the defendant's argument that costs should be proportionate to the amount recovered, particularly given the nominal settlement offer and the need to encourage genuine settlement efforts.

The defendant Graham McKeddie moved for summary judgment to dismiss the claim against him, which was based on social host liability.

The plaintiff, a minor injured as a passenger in a car driven by Graham's son, supported the dismissal.

The defendant Echelon General Insurance Company, a party under uninsured/underinsured provisions, cross-claimed against Graham alleging social host liability.

The court applied the framework from Childs v. Desormeaux and the summary judgment principles from Hryniak v. Mauldin.

Despite conflicting evidence regarding the host's interaction with the guests, the court found insufficient evidence to establish a paternalistic relationship or any other basis for a positive duty of care on the host's part as a social host.

The motion for summary judgment was granted, dismissing the claim against the moving defendant.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiff's claims for medical and income replacement benefits following a motor vehicle accident.

The defendant argued the plaintiff's injuries fell within the Minor Injury Guideline (MIG) $3,500 cap and that no evidence supported the income replacement claim.

The court granted the motion, finding the plaintiff failed to put his best foot forward by adducing medical evidence to rebut the defendant's section 44 assessments.

The court concluded there was no genuine issue requiring a trial and dismissed the action.

The plaintiff brought a motion to strike three jury notices prior to the commencement of a trial involving a complex motor vehicle accident resulting in catastrophic impairments.

The plaintiff argued that the anticipated evidence, including competing expert opinions and the plaintiff's brain injury, would be too complex for a jury.

The court dismissed the motion as premature, applying the 'wait and see' approach, holding that it was speculative to determine the complexity of the evidence before it was presented at trial.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The respondent was awarded costs of the appeal in the amount of $20,000, inclusive of disbursements and applicable taxes.

The applicant was injured in a rear-end motor vehicle accident and sought income replacement benefits (IRBs) and medical benefits from his insurer.

The insurer denied the benefits, arguing that the applicant's inability to work was caused by pre-existing psychological issues and not the accident.

The arbitrator applied the 'material contribution' test for causation and found that the accident materially contributed to the applicant's post-concussion syndrome, depression, and resulting unemployability.

The arbitrator awarded IRBs for both the pre-104-week and post-104-week periods, relying heavily on undisputed vocational expert testimony that the applicant was completely unemployable.

The arbitrator also awarded the claimed medical benefits and ordered the insurer to pay a special award of $30,000, finding that the insurer acted unreasonably in continuing to deny benefits despite overwhelming evidence of the applicant's accident-related impairments.

The plaintiffs were awarded $35,000 each in Family Law Act damages following a motor vehicle accident.

The defendant argued the plaintiffs should be denied costs because their recovery fell below the $100,000 Simplified Rules threshold.

The court rejected this argument, finding it was reasonable to proceed under the ordinary procedure because the claims were part of larger companion actions involving allegations of contributory negligence.

The court awarded the plaintiffs $30,000 in fees plus disbursements and HST on a partial indemnity scale.

Following a trial in which the plaintiffs succeeded on Family Law Act claims for loss of companionship, guidance, and care, the court determined costs.

The defendant argued that no costs should be awarded because each plaintiff recovered less than $100,000 and should have proceeded under the Simplified Procedure rules.

The court held that where claims formed part of broader litigation involving companion actions and allegations of contributory negligence, it was reasonable to proceed as ordinary actions.

Exercising its discretion, the court rejected the defendant’s objections to the plaintiffs’ bill of costs and awarded partial indemnity costs together with disbursements and additional costs for the costs hearing.

The defendant brought a motion for summary judgment seeking dismissal of a personal injury action arising from a motor vehicle collision.

The defendant argued that the plaintiff’s prior conviction under the Highway Traffic Act for failing to yield the right of way precluded the civil claim and resolved the issue of liability.

The court held that the offence proceeding determined only whether the plaintiff failed to yield and did not address the manner of driving by the defendant.

As issues such as speed, passing behaviour, and whether the defendant had a last clear chance to avoid the collision remained unresolved, genuine issues requiring a trial existed.

The motion for summary judgment was therefore dismissed.

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.

The plaintiff settled a motor vehicle accident claim for $190,000 plus costs.

An assessment officer awarded $231,137.93 in costs, which a Superior Court judge reduced to $102,000 on appeal.

The plaintiff sought to appeal the judge's decision to the Court of Appeal.

The defendant moved to quash the appeal, arguing that leave to appeal was required under s. 133(b) of the Courts of Justice Act because the appeal related only to costs.

The Court of Appeal agreed, holding that an appeal from a Superior Court judge's decision reviewing a costs assessment is a final order relating to costs and requires leave to appeal to the Court of Appeal.