Todd J. McCarthy

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 insurer appealed an arbitrator's decision awarding the insured, a minor who sustained a catastrophic brain injury, private school tuition as a rehabilitation benefit and a $28,000 special award for unreasonably withholding benefits.

The Director's Delegate upheld the tuition award, finding no error in the arbitrator's conclusion that the expense was reasonable, necessary, and 'incurred' under the Schedule despite not being paid upfront.

The Delegate also upheld the entitlement to a special award, noting the insurer unreasonably relied on preliminary and flawed expert reports to deny benefits.

However, the Delegate set aside the quantum of the special award and remitted it to arbitration, finding the arbitrator failed to provide sufficient reasons explaining how the $28,000 figure was calculated.

The appellant insurer sought to appeal an arbitrator's preliminary decision that the child's benefit component of Canada Pension Plan disability benefits is not deductible from income replacement benefits, as well as an interim expense order.

The Director's Delegate declined to exercise discretion under Rule 50.2 of the Dispute Resolution Practice Code to accept the appeal before all issues in dispute were finally decided, finding that hearing the appeal now would not produce the quickest, most just, and least expensive resolution of the dispute.

The request for a stay of the arbitrator's orders was also denied.

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 applicant sought expenses following a successful arbitration for statutory accident benefits.

The applicant claimed $75,719.35 in expenses, including legal fees and disbursements.

The insurer argued that the attendance of two senior counsel was unnecessary and disputed certain disbursements.

The arbitrator agreed that two senior counsel were not required for the hearing but allowed some time for the second counsel's pre-hearing work.

The arbitrator also disallowed disbursements for medical illustrations and a video, and reduced an expert's fee to the regulatory maximum.

The insurer was ordered to pay the applicant $50,525.60 in expenses, inclusive of HST.

The applicant, an emergency nurse, was injured in a motor vehicle accident and sought post-104 week income replacement benefits.

The insurer terminated benefits, arguing she was not substantially disabled.

The arbitrator found that the applicant suffered a complete inability to engage in suitable employment due to her ongoing physical restrictions and the unlikelihood of being hired for sedentary work given her age and disability.

The arbitrator also held that a lump-sum settlement from a collateral carrier could not be deducted from the income replacement benefits.

A special award of $23,000 was granted because the insurer unreasonably withheld benefits by failing to meaningfully adjust the claim after the 104-week mark.

During a civil jury trial arising from a motor vehicle accident involving a child pedestrian, the court ruled on the permissible scope of testimony from an accident reconstruction expert.

The plaintiffs sought to elicit opinion evidence concerning alleged deficiencies in the defendant vehicle’s braking system and on driver perception and reaction times.

The court held that Rule 53 of the Rules of Civil Procedure requires expert reports to clearly state the opinions being advanced and their factual bases, and an expert cannot introduce a new field of opinion not articulated in the report.

Because the expert’s reports did not opine that the brake condition contributed to the collision, such testimony would improperly expand the report.

The court also barred additional human factors opinion evidence as duplicative of testimony already provided by a qualified human factors expert.

The defendant moved to exclude examination for discovery transcripts on the basis that he did not have an interpreter during the first discovery and that some answers during the second discovery were given in broken English.

The moving party argued the transcripts were unreliable and unfair to use at trial.

The court held that the obligation to arrange for an interpreter rests with the party being examined and noted the defendant had an opportunity during the second discovery to correct earlier answers.

The court found that although the defendant would testify at trial through an interpreter, the discovery transcripts should not be struck.

Instead, the court directed that proposed read‑ins be reviewed to ensure fairness in light of the language issues.

During a jury trial arising from a motor vehicle accident involving a child pedestrian, the defendants moved for a mistrial following the plaintiffs’ opening address.

The court had previously ruled that a police mechanic could not provide expert opinion evidence regarding the condition or effect of the vehicle’s brakes.

In the opening address, plaintiffs’ counsel suggested that the defendant driver’s brakes were in an unsatisfactory condition and invited the jury to infer that this contributed to the accident, despite the absence of expert evidence supporting such a theory.

The court held that the opening address improperly contained argument, inaccurate statements about the police investigation, and suggestions that the jury act as enforcers of societal rules.

Because the comments invited the jury to draw conclusions unsupported by admissible evidence and could not be cured by a corrective instruction, a mistrial was declared.

During a civil jury trial arising from a pedestrian motor vehicle accident involving a child, the defendants moved for a mistrial after the plaintiffs’ counsel delivered an opening address containing alleged misstatements of law and improper argument.

The court found that counsel repeatedly misstated the reverse onus under the Highway Traffic Act by suggesting that all defendants bore the burden of disproving negligence, improperly argued factual conclusions regarding vehicle brake defects without supporting expert evidence, and displayed discovery transcript excerpts suggesting an admission of negligence by one defendant.

The court held that the discovery excerpt was misleading, potentially inadmissible, and taken out of context, particularly given language barriers during the examination for discovery.

Considering the cumulative prejudicial impact of the opening remarks, the court concluded that corrective instructions would not sufficiently remedy the prejudice to the jury.

A mistrial was therefore declared.

The plaintiffs in a motor vehicle personal injury action involving a child with an alleged brain injury sought leave under s. 12 of the Evidence Act to call more than three expert witnesses at trial.

The court considered factors governing leave to call additional experts, including necessity, duplication of evidence, fairness between parties, and proportionality.

While acknowledging the complexity of the medical issues and future care claims, the court emphasized the trial judge’s gatekeeping role and the need to avoid unnecessary or repetitive expert testimony.

Leave was granted for several experts with distinct specialties but denied for others whose proposed evidence lacked a compliant Rule 53 report or would duplicate testimony from other experts.

The court limited the number of occupational therapists who could testify and refused permission for certain proposed witnesses whose opinions were unnecessary or procedurally deficient.

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 appellant appealed a trial judgment awarding the respondent $919,237 in damages following a rear-end motor vehicle collision.

The appellant argued the trial judge erred by discharging the jury at the outset of the trial and by improperly quantifying damages, given the respondent's severe pre-existing fibromyalgia.

The Court of Appeal dismissed the appeal, holding that the trial judge's decision to strike the jury due to the anticipated complexity of the medical and economic evidence was not arbitrary, capricious, or unreasonable.

The Court also found no basis to interfere with the trial judge's assessment of damages, which was grounded in the evidence.

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.

A cyclist was injured by an unidentified motorist and applied to the Motor Vehicle Accident Claims Fund for statutory accident benefits.

The application lacked a police report.

The Fund later learned of a 911 call but delayed seeking a court order to obtain the call records for over seven months.

Once obtained, the records identified the motorist and their insurer, Pilot Insurance Company.

The Fund then notified Pilot of its intent to dispute priority.

The Court of Appeal held that while the application became functionally adequate when the 911 records were obtained, the Fund's lack of diligence in pursuing the records meant it should be treated as having received a completed application months earlier.

Consequently, the Fund failed to meet the 90-day notice requirement under s. 3 of O. Reg. 283/95 and remains responsible for paying the benefits.

Following an earlier ruling on the merits of an appeal, the court addressed the issue of costs.

The responding party argued that costs of the appeal should be deferred to the arbitrator.

The court rejected that submission and held that the moving party had succeeded on the appeal, even though the remedy granted differed from what had been proposed.

Costs were therefore awarded to the successful party.

The appellant insurer sought a stay of an arbitrator's order requiring it to pay tuition expenses, rehabilitation support worker expenses, and a special award to the respondent, who sustained a catastrophic brain injury in a motor vehicle accident.

Applying the Armstrong criteria, the Director's Delegate found that while the appeal was brought in good faith, the appellant failed to demonstrate that it would suffer hardship or prejudice if the stay was not granted.

The Delegate noted the exceptional nature of a stay under the Insurance Act and the legislative intent of a special award, concluding that the prejudice to the respondent in ordering a stay outweighed any prejudice to the appellant.

The motion for a stay was denied.

The applicant sought judicial review of a Director's Delegate's decision dismissing her appeal of an Arbitrator's interlocutory order.

The Arbitrator had found that the insurer's failure to comply with notice requirements before terminating income replacement benefits did not entitle the applicant to ongoing benefits prior to a hearing on the merits.

The Divisional Court dismissed the application, finding that the Director's Delegate's decision to reject the interlocutory appeal was a reasonable exercise of discretion under the Dispute Resolution Practice Code.

The parties settled a statutory accident benefits dispute on the morning of the scheduled arbitration hearing.

As part of the settlement, the insurer agreed to pay the applicant's expenses, but the parties could not agree on the quantum.

The arbitrator reduced the preparation time claimed for one of the applicant's lawyers from 100.8 hours to 70.0 hours, finding the original amount somewhat high given that no hearing was conducted.

The arbitrator also reduced the disbursement claimed for an expert report to the $1,500 maximum permitted under the Expense Regulation.

The applicant was awarded total expenses of $14,653.71.