Todd J. McCarthy

Following a jury verdict apportioning fault for a motor vehicle accident between two motorcyclists, the appellant challenged the trial judge’s jury instructions on causation, joint tortfeasor liability, and concurrent liability.

The court held that any alleged error concerning joint tortfeasor instructions was immaterial because the jury’s answers clearly established liability as a concurrent tortfeasor, and the evidence supported that route to liability.

The court also rejected the argument that the charge was unbalanced or unfair when read as a whole.

It further upheld the dismissal of a post-verdict Rule 21.01 motion concerning insurance coverage, holding that the issue could properly proceed in a separate action.

The appellant sought damages under a critical illness insurance policy connected to a mortgage loan after asserting that he had suffered a covered heart attack.

The appeal turned on the interpretation of policy wording requiring both ECG changes indicating myocardial infarction and an elevated level of cardiac enzymes or any other marker above acceptable levels.

The court held that the policy required something in addition to ECG changes and that 'above acceptable levels' meant higher, not merely different from normal.

The appellant failed to establish coverage, and the insurer's cross-appeal from the no-costs order was also dismissed.

The insured was injured in a 2007 motor vehicle accident and commenced both an accident benefits arbitration and a tort action.

He later sought to withdraw his arbitration claim for medical expenses to include it in a parallel court proceeding for income replacement benefits and punitive damages.

The Arbitrator allowed the withdrawal without expenses.

The insurer appealed, arguing the insured should not be permitted to change forums at a late stage.

The Director's Delegate dismissed the appeal, finding the Arbitrator acted within his discretion under the Dispute Resolution Practice Code and had no power to force the insured to continue the arbitration or abandon his punitive damages claim in court.

The applicant, who was injured in a motor vehicle accident, applied for arbitration regarding the quantum of his attendant care benefits.

The insurer requested that the applicant attend an occupational therapy examination and a neuropsychological examination pursuant to section 44 of the Statutory Accident Benefits Schedule.

The applicant refused, arguing the insurer had sufficient information and failed to comply with section 42(7) of the Schedule.

The arbitrator found that the requested examinations were reasonably necessary given the time elapsed since the last examinations and the changing nature of the applicant's needs.

The arbitrator also held that the insurer's non-compliance with section 42(7) did not bar the request.

The arbitration was stayed pending the applicant's attendance at the examinations.

The insurer moved under Rule 21.01(3) of the Rules of Civil Procedure to stay a statutory accident benefits action as an abuse of process.

The insurer argued the insured improperly switched forums from a Financial Services Commission of Ontario arbitration to the court after initiating arbitration proceedings.

The court held that the doctrine of abuse of process did not apply because there was no limitation period issue preventing the insured from changing forums and no risk of duplicative or inconsistent proceedings.

The withdrawal of the arbitration eliminated concerns about parallel proceedings, and trying the accident benefits action together with the tort claim promoted efficiency.

The motion to stay the action was dismissed.

The cross-appellant was injured in a motor vehicle accident and sought income replacement benefits (IRBs).

The insurer terminated the IRBs and the cross-appellant applied for mediation.

The arbitrator initially found the claim was not statute-barred, but on appeal, the Director's Delegate found the arbitrator erred in law by failing to determine whether the insurer's refusal was clear and unequivocal.

On cross-appeal, the Director's Delegate held that the insurer's Explanation of Benefits (OCF-9) provided conditional and ambiguous statements regarding the right to a rebuttal examination and the limitation period.

Because the refusal was not clear and unequivocal, the two-year limitation period was never triggered, and the cross-appellant was permitted to proceed to arbitration on the IRB claim.

The defendant moved to transfer a personal injury action from Brampton to Toronto so it could be heard together with related actions arising from the same motor vehicle accident.

The court considered Rule 13.1.02 of the Rules of Civil Procedure and the interests of justice factors governing venue transfer.

Although related Toronto actions had been commenced and consolidated, the court found that transferring the proceeding would significantly delay the trial and prejudice the plaintiff, a foreign resident unable to return home while awaiting trial.

The defendant had also delayed bringing the transfer motion despite knowledge of related proceedings.

The court dismissed the motion and ordered costs to the responding parties.

The defendant brought a motion seeking orders that two Toronto actions arising from a motor vehicle accident be tried together, transferred to Brampton, and then tried together with an existing Brampton action arising from the same accident.

While the plaintiffs did not oppose the request that the Toronto actions be tried together, they opposed transferring the actions to Brampton and consolidating them with the Brampton proceeding.

The court held that the Toronto actions were newly commenced and could not realistically be ready for the scheduled January 2014 trial of the Brampton action.

Justice Snowie had already ordered that the Brampton action proceed alone, having considered prejudice to the plaintiff in that action.

The court found no independent basis for transferring the Toronto actions to Brampton under Rule 13.1.02(2)(b) of the Rules of Civil Procedure.

The minor plaintiff was injured in a motor vehicle accident.

Her mother sued the driver and owner, who then issued a third-party claim against the plaintiff's parents for negligent supervision.

The parents' homeowners' insurer refused to defend the third-party claim, relying on an exclusion clause for bodily injury to any person residing in the household.

The application judge declared the insurer had a duty to defend.

The Court of Appeal dismissed the insurer's appeal, holding that the exclusion clause must be interpreted narrowly and only applies to direct claims between family members, not indirect third-party claims for contribution and indemnity.

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.

The appellant insurer appealed an arbitrator's preliminary decision that the respondent's claim for income replacement benefits was not statute-barred.

The arbitrator had found that the two-year limitation period began on the date benefits ended, rather than the date of the insurer's refusal.

The Director's Delegate allowed the appeal, holding that the limitation period under subsection 281.1(1) of the Insurance Act is triggered by a clear and unequivocal refusal to pay benefits, not the date payments cease.

However, the Delegate granted the respondent an extension of time to cross-appeal on the specific issue of whether the insurer's refusal was, in fact, clear and unequivocal.

The appellant insurer appealed an arbitrator's decision granting a special award to the respondent for unreasonably withholding payments for rehabilitation support worker services and private school tuition.

The Director's Delegate confirmed the appeal decision, finding that there was an adequate evidentiary foundation to support the arbitrator's finding that the insurer acted unreasonably.

The insurer had failed to consider new information, including a DVD with statements from the respondent's rehabilitation team, and relied on overlapping and preliminary assessments to deny benefits.

The plaintiffs (respondents on appeal) brought a motion to quash the defendant's appeal to the Divisional Court on the basis that the aggregate judgment amount exceeded the $50,000 monetary jurisdiction threshold.

The defendant argued that only the costs order was being appealed, which was under $50,000, and that a single judge lacked jurisdiction to hear the motion because leave to appeal costs requires a full panel.

The court held that a single judge has jurisdiction to quash an appeal outside the court's monetary jurisdiction.

The court further held that jurisdiction is determined by the aggregate of the sums awarded in the judgment, not just the portion being appealed.

The motion to quash the appeal was granted.

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 jury trial for a motor vehicle accident where the plaintiffs were awarded $137,000 plus interest, the court determined costs.

The plaintiffs' recovery exceeded the defendant's offer to settle of $125,000.

The court found the plaintiffs were the successful parties and awarded them partial indemnity costs.

After reducing fees for duplication and disallowing disbursements for experts who did not testify, the court awarded the plaintiffs $322,500 in costs.

The appellant insurer sought to appeal an arbitrator's preliminary decision that the respondent's claim for income replacement benefits was not barred by the limitation period.

The Director's Delegate exercised discretion under the Dispute Resolution Practice Code to accept the appeal from the preliminary order, finding that it raised an important issue regarding limitation periods and had the potential to finally decide the main issue in dispute without causing prejudice or delay.

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 respondent was injured in a motor vehicle accident and commenced a court action for accident benefits within the limitation period.

Years later, she commenced an arbitration at the Financial Services Commission of Ontario (FSCO) for catastrophic impairment benefits.

The FSCO director's delegate ruled that under s. 281.1(1) of the Insurance Act, a claimant must choose a forum within the two-year limitation period and cannot switch forums after it expires.

The Divisional Court found this decision unreasonable.

The Court of Appeal allowed the insurer's appeal, holding that the delegate's interpretation was reasonable and did not place the respondent in an impossible position, as she could still pursue her catastrophic impairment claim within the existing court action.

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

The insurer terminated the applicant's income replacement benefits and denied a treatment plan.

The applicant applied for mediation and subsequently arbitration.

The insurer raised a preliminary issue that the applications were filed beyond the two-year limitation period under the Insurance Act and the Statutory Accident Benefits Schedule.

The arbitrator found that the limitation period for the income replacement benefits commenced on the effective date of termination, not the date of the notice, making the application timely.

However, the application regarding the treatment plan was filed beyond the two-year limitation period and was therefore statute-barred.