Todd J. McCarthy

The appellants challenged the trial judge's decision to discharge a civil jury on the grounds of complexity, arguing it violated sections 7 and 15 of the Charter.

The Court of Appeal dismissed the appeal, finding that the Charter does not confer a right to a jury trial in civil matters.

The court held that the jeopardy of a civil damages award does not engage section 7, and the class of civil defendants denied a jury trial does not form an analogous ground under section 15.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario, which upheld two arbitrators' refusals to order independent medical examinations of the respondent claimant.

The arbitrators had denied the insurer's requests primarily due to the insurer's delay in seeking the examinations until the eve of or during the arbitration hearings.

The Divisional Court applied the reasonableness standard of review and dismissed the application, finding that the Director's Delegate reasonably concluded the arbitrators had properly exercised their discretion to refuse the examinations in the interests of fairness and preventing delay.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario.

The Director's Delegate had overturned a preliminary arbitration order that found the respondent insured's application for mediation was time-barred.

The Divisional Court held that the Director's Delegate was reasonable in concluding that the two-year limitation period under the Insurance Act and the Statutory Accident Benefits Schedule did not begin to run until the insurer provided notice of refusal to pay following a negative Designated Assessment Centre report, rather than from the initial notice of stoppage of benefits.

The application for judicial review was dismissed.

The appellant was injured in a rear-end motor vehicle collision.

At trial, the jury found neither the appellant nor the respondent negligent, accepting evidence that an unknown driver cut in front of them and caused the sudden braking.

The appellant's action was dismissed.

On appeal, the appellant argued the unknown driver evidence should have been excluded because it was not pleaded.

The Court of Appeal dismissed the appeal, noting the evidence was known to the appellant and admitted without objection at trial.

The court also upheld the jury's assessment of damages as defensible based on the evidence of soft tissue injuries.

Manitoba Public Insurance (MPI) brought a motion for directions regarding an unpaid costs award of $12,000 from a priority dispute over accident benefits.

MPI was successful in the underlying arbitration and application, but took no part in the subsequent appeal between Allstate and the Motor Vehicle Accident Claims Fund.

The Court of Appeal ordered Allstate, as the unsuccessful party on the appeal, to pay MPI's $12,000 costs from the lower proceedings, plus $1,000 for the costs of the motion.

The appellant, an innocent bystander, was rendered paraplegic after being struck by a bullet fragment during a drive-by shooting.

She brought an action against the unidentified driver of the vehicle and her own automobile insurer under the OPCF 44R Endorsement.

The insurer successfully moved for summary judgment on the basis that the injuries did not arise directly or indirectly from the use or operation of an automobile.

The Court of Appeal dismissed the appeal, finding that while the vehicle was used for an ordinary purpose, the shooting was a distinct and intervening act that broke the chain of causation.

The appellant was involved in a motor vehicle accident before the Limitations Act, 2002 came into force, but was sued by the respondents after it came into force.

The appellant sought to add counterclaims for contribution and indemnity against one of the respondents and two new parties.

The motion judge dismissed the request, finding the two-year limitation period under the new Act had expired.

On appeal, the appellant argued the transition provisions of the new Act applied because he discovered his claims on the date of the accident.

The Court of Appeal dismissed the appeal, holding that a claim for contribution and indemnity is based on the failure of concurrent tortfeasors to pay their fair share, which did not occur until after the new Act came into force.

Therefore, the transition provisions did not apply and the new Act's limitation periods governed.

The plaintiff suffered injuries at the defendant's amusement park but failed to commence an action within the two-year limitation period under the Limitations Act, 2002 due to lawyer inadvertence.

The motion judge applied the common law doctrine of special circumstances to extend the limitation period.

The Court of Appeal allowed the defendant's appeal, holding that the Limitations Act, 2002 is a comprehensive scheme that does not preserve the court's common law discretion to extend limitation periods based on special circumstances.

The action was declared statute-barred.

The appellant appealed a jury's damage assessment and several evidentiary and procedural rulings by the trial judge, including the handling of an improper question during cross-examination, the exclusion of employment records, and the denial of a request for an assignment of long-term disability benefits.

The Court of Appeal dismissed the appeal, finding the jury's verdict was not perverse, the trial judge's curative instruction was sufficient, and the employment records were properly excluded.

The court dismissed the ground regarding the assignment of benefits without prejudice to the appellant bringing a further motion on proper material.

The moving party brought a motion to vary the Court of Appeal's judgment by striking out a reference to its withdrawal of a limitation defence argument and remitting the issue to the arbitrator.

The moving party argued that because the court had overturned previous case law and found the responding party to be an insurer, it should now be able to rely on the limitation defence.

The Court of Appeal dismissed the motion, finding that the moving party had expressly conceded the issue before the arbitrator and the lower court, and therefore could not revive the argument on appeal.

The Motor Vehicle Accident Claims Fund paid death and funeral benefits to the family of an uninsured passenger killed in a motor vehicle accident.

The Fund sought reimbursement from the respondent insurer and initiated arbitration under O. Reg. 283/95.

The respondent objected, arguing the Fund was not an 'insurer' under the regulation.

The arbitrator dismissed the objection, but the appeal judge set aside the award based on previous case law.

The Court of Appeal allowed the Fund's appeal, overruling its previous decision and holding that the Fund is an insurer for the purpose of resolving disputes over the payment of accident benefits and is bound by the mandatory arbitration provisions of the regulation.

The appellant appealed a summary judgment decision.

The motion judge had granted summary judgment by choosing between conflicting expert opinions on the application of the Quebec Automobile Insurance Act to the facts of the case.

The Court of Appeal allowed the appeal, holding that foreign law is a question of fact and the motion judge was not entitled to look beyond the diametrically opposed expert opinions to resolve the issue on a summary judgment motion.

The summary judgment was set aside.

The appellant appealed a trial judgment awarding damages for lost profits arising from a breach of contract.

The appellant argued the trial judge erred in accepting the plaintiff's expert's historical approach to calculating lost profits and failed to consider whether lost advertisements were transferred to other accounts.

The Court of Appeal dismissed the appeal, finding the trial judge was entitled to accept the plaintiff's expert evidence and that the argument regarding transferred advertisements was not sufficiently developed in the evidence.

The plaintiff was involved in multiple motor vehicle accidents between 1989 and 1997, resulting in a chronic pain disorder and total disability.

Three separate actions were tried together.

The trial judge discharged the jury due to the complexity of the medical evidence, overlapping injuries, and different statutory regimes.

The trial judge assessed damages globally and apportioned liability among the defendants, holding the defendants from the 1989 accident solely responsible for past and future income loss and future care costs.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's decision to discharge the jury, the apportionment of damages, or the quantum of damages awarded.

The insured's tractor-trailer was damaged in a rear-end collision.

The vehicle was covered by a collision policy from one insurer and a liability policy from another.

The collision insurer paid for the damage and brought a subrogated claim against the liability insurer.

The motion judge held the subrogated claim was barred by section 263(5) of the Insurance Act.

On appeal, the Court of Appeal held that section 263(5) only bars subrogated claims for payments made under a motor vehicle liability policy.

Because the collision policy was not a motor vehicle liability policy, the subrogated claim was permitted under section 278(1) of the Act.

The respondent was insured under an accidental death and dismemberment policy and submitted a claim for the loss of use of her leg.

The appellant insurer rejected the claim.

The respondent commenced an action slightly more than a year after submitting her proof of claim, but less than a year after the rejection.

The appellant moved for summary judgment, arguing the action was barred by the one-year limitation period in s. 206(1) of the Insurance Act.

The motion judge dismissed the motion, holding the period began upon unequivocal rejection.

The Court of Appeal allowed the appeal, holding that the limitation period begins to run when the insurer receives sufficient evidence to assess the claim, not upon rejection, and that the discoverability principle does not apply to this statutory provision.

The plaintiff was injured on a roller coaster in October 1995 and commenced an action in February 2002.

The defendants brought a motion for summary judgment, arguing the six-year limitation period had expired.

The motions judge dismissed the motion, finding the limitation period had not expired.

On appeal, the majority of the Court of Appeal allowed the appeal and dismissed the action, holding that the plaintiff knew or reasonably should have known all elements of her claim in October 1995, and the mere possibility of no causal connection did not delay the limitation period.

This appeal concerned a priority dispute between two automobile insurers over statutory accident benefits payable to a truck driver injured while driving his employer's vehicle.

The court held that the driver was deemed a named insured under the employer's policy by virtue of s. 91(4) of the Statutory Accident Benefits Schedule, with the result that the employer's insurer had priority under s. 268 of the Insurance Act.

The court rejected the argument that the regulation impermissibly altered the statutory meaning of “named insured”, holding that entitlement and priority must be read together.

It further held that s. 91(4) was authorized by the Act's broad regulation-making power.

The appellants challenged an order dismissing their motion to set aside an earlier order under rule 37.14 of the Rules of Civil Procedure.

The Court of Appeal held that the motion judge erred in finding herself functus and further erred in concluding there were no grounds to set aside the prior order.

On the uncontradicted evidence concerning discussions about outstanding costs and the absence of any further demand for payment, the earlier order ought not to have been made.

The appeal was allowed, the order below was set aside, the relief sought on the motion was granted, and costs of both the motion and the appeal were fixed at $5,000 each.