Todd J. McCarthy

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.

The appellant insurer appealed a jury verdict awarding the respondent damages for injuries sustained in a motor vehicle accident.

The appellant argued the trial judge erred by refusing to grant a mistrial after the respondent's counsel made improper comments during his closing address, by giving an inadequate correcting instruction, by allowing an expert to testify beyond his report, and by refusing to order an assignment of statutory accident benefits.

The Court of Appeal dismissed the appeal, finding the trial judge's correcting instruction adequately addressed the improper comments, the evidentiary ruling was fair, and the appellant failed to prove the jury's future care award mirrored the respondent's uncertain accident benefits entitlement.

The appellant insurer appealed a Divisional Court judgment dismissing its application for judicial review of a decision by the Director's Delegate.

The Director's Delegate had found that the two-year limitation period for the respondent to apply for mediation regarding a denied non-earner benefit did not begin to run until the insurer provided the medical report it relied upon in its denial.

The Court of Appeal dismissed the appeal, finding the Director's Delegate's interpretation of the home statute was reasonable and entitled to deference.

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.

Insurer priority appeal from an arbitration decision under s. 268(2) of the Insurance Act concerning statutory accident benefits payable after a motor vehicle accident.

The application judge held that the arbitrator erred in law by requiring proof that a cohabiting relationship was permanent or likely to be permanent before using a shorter timeframe to assess principal financial dependency, and further erred by speculating about future relationship failure.

Applying the proper dependency principles, the court found that the two children were appropriately assessed over the seven-week pre-accident period and were principally financially dependent on the insured, and that the adult claimant was also principally financially dependent on him on the whole of the evidence.

The appeal was allowed and priority was shifted to the respondent insurer.

The applicant insurer appealed an arbitration decision regarding priority to pay statutory accident benefits following a motor vehicle accident.

The arbitrator had found that the injured mother and her two children were not principally financially dependent on the mother's new partner because their relationship lacked 'permanence' or 'likely permanence,' leading him to use a 12-month pre-accident timeframe.

The Superior Court held that requiring permanency was an error of law and that the arbitrator improperly speculated on the future of the relationship.

The court found that the mother and children were principally financially dependent on the partner at the time of the accident, making the respondent insurer responsible for the benefits.

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.

The defendant sought leave to appeal an order dismissing his motion for summary judgment in a personal injury action arising from a motor vehicle accident.

The motions judge had declined to grant partial summary judgment or hold a mini-trial, finding that the defendant's role could not be severed from the continuing narrative of the accident without risking inconsistent findings of fact.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's application of the Hryniak framework and no issue of general importance warranting an appeal.

The appellant appealed a jury's damages award and a trial judge's costs order arising from a motor vehicle accident.

The appellant argued the trial judge's interventions during cross-examination rendered the trial unfair and that the jury was misdirected on causation.

The Court of Appeal dismissed the damages appeal, finding the interventions did not compromise trial fairness and the causation instructions were adequate.

However, the Court allowed the appeal regarding costs, setting aside a $60,000 penalty imposed on the appellant's insurer under the Insurance Act.

The Court found no evidence that the insurer failed to attempt to settle the claim expeditiously or that its participation in mediation was a sham.

In this costs endorsement following a personal injury jury trial, the plaintiff sought enhanced costs based on a Rule 49 offer of $300,000 inclusive of interest plus costs.

The defendants argued that the future income loss award should be excluded from the judgment for offer-comparison purposes because of the trust and assignment regime under s. 267.8 of the Insurance Act.

The court rejected that submission, held the judgment remained more favourable than the offer, and awarded partial indemnity costs to the offer date and substantial indemnity costs thereafter.

Applying Rule 57.01 and proportionality principles, the court fixed fees at $240,000 plus applicable GST/HST and allowed disbursements of $124,013.46.

This was a costs decision following a summary judgment motion by the defendant insurer asserting the plaintiffs' action was statute-barred and a successful cross-motion by the plaintiffs to amend their pleading.

The court had previously granted the cross-motion, dismissed the insurer's summary judgment motion, and declared the action timely.

On costs, the insurer argued the issue was novel and that no costs should be awarded, or alternatively that costs should be capped at $3,500.

The court held that costs were appropriate and fixed the plaintiffs' costs at $7,000 all inclusive on a partial indemnity basis.

The plaintiffs were injured in a motor vehicle accident involving an uninsured driver.

Eighty-nine days after the accident, the plaintiffs' lawyer notified their insurer of an intent to sue under the uninsured motorist provisions.

The lawyer inadvertently failed to name the insurer as a defendant in the initial action.

The plaintiffs commenced an action against the insurer over two years after the initial notice letter.

The insurer brought a motion for summary judgment to dismiss the action as statute-barred.

The court dismissed the motion, finding that the limitation period did not begin to run when the letter was sent because there was insufficient evidence at that time to determine if the injuries met the statutory threshold under the Insurance Act.

The insurer moved for summary judgment dismissing the accident benefits claim on the basis that the claimant's impairments fell within the Minor Injury Guidelines under the statutory accident benefits regime.

The court held that the responding party failed to put forward admissible evidence showing chronic pain, psychological impairment, or any injury taking the claim outside predominantly minor sprains and strains.

Applying the summary judgment framework, the court found there was no genuine issue requiring a trial and that the record was sufficient for final disposition.

Summary judgment was granted dismissing the action against the insurer, with costs fixed at $3,500 inclusive of disbursements and HST.

The appellant insurer appealed a jury trial judgment, arguing the trial judge erred in dismissing two motions for a mistrial due to plaintiff's counsel's conduct during cross-examination and closing address.

The appellant also challenged the award of 2% per month interest on overdue payments.

The Court of Appeal dismissed the appeal, finding the trial judge gave clear and appropriate instructions to the jury to cure any prejudice.

The Court also upheld the 2% interest rate, noting that the 2010 Statutory Accident Benefits Schedule preserved the substantive right to the former interest rate for accidents occurring before its effective date.

The applicant insurer sought judicial review of a Director's Delegate's decision which found that the respondent insured was not precluded from proceeding to arbitration.

The insurer had denied the insured's claim for a non-earner benefit but failed to provide a copy of the medical report it relied upon until more than two years later.

The Divisional Court held that the Director's Delegate's decision was reasonable, as the failure to provide the medical report meant the insurer provided incomplete reasons for the denial, and thus the two-year limitation period did not commence until the report was finally provided.

During a jury trial arising from a motor vehicle accident, the defendants brought a threshold motion under s. 267.5(15) of the Insurance Act seeking a determination that the plaintiff had not sustained a permanent serious impairment of an important physical, mental or psychological function.

The court reviewed the statutory test and the regulatory criteria under the Ontario Regulations, including the requirements of substantial interference, importance of function, and permanence.

Based on extensive medical evidence diagnosing chronic pain syndrome, orthopedic injuries, and psychiatric conditions including major depressive disorder and somatic symptom disorder, the court found the impairments substantially interfered with employment and daily living.

The court accepted the evidence of multiple treating and expert physicians and rejected the defence medical expert’s opinion as unreliable.

The court concluded the plaintiff met the statutory threshold and was not barred from recovering damages for non‑pecuniary losses.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, including income replacement, attendant care, and housekeeping benefits.

The insurer terminated these benefits based on independent medical assessments.

The arbitrator found that the applicant suffered a substantial inability to perform the essential tasks of his pre-accident employment as a chef and awarded income replacement benefits, subject to deduction for post-accident employment income.

However, the claims for attendant care and housekeeping benefits were dismissed, as the applicant failed to establish that he required the extent of assistance claimed.

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 sought judicial review of a Director's Delegate decision upholding an arbitrator's award for private school tuition and a special award for unreasonably withholding benefits under the Statutory Accident Benefits Schedule.

The Divisional Court found the Delegate's broad interpretation of 'incurred' and 'undertaken' under s. 15 of SABS was reasonable.

The court also upheld the finding that the insurer unreasonably denied benefits by relying on flawed expert reports and ignoring the insured's future needs.

The court fixed the quantum of the special award at $20,000.

The respondent, an elderly woman, was involved in a motor vehicle accident in Florida while driving with a driver's licence that had expired four months prior.

Her automobile insurer denied coverage on the basis that she breached statutory condition 4(1) by driving without authorization.

The application judge found the respondent exercised due diligence and declared the insurer had a duty to defend and indemnify.

On appeal, the Court of Appeal held that the due diligence defence was not made out, as the respondent failed to take reasonable care regarding her licence renewal.

However, the Court held that the breach constituted imperfect compliance rather than non-compliance with a condition precedent, making relief from forfeiture available under s. 98 of the Courts of Justice Act.

The Court granted relief from forfeiture, noting the respondent's good faith, the minor nature of the breach, and the massive disparity between the loss of $1 million in coverage and the lack of prejudice to the insurer.