Todd M. Wasserman

The appellants appealed a motion judge's decision finding that the Crown could not be compelled to answer questions on an examination for discovery in an action brought under the Public Transportation and Highway Improvement Act.

The Divisional Court dismissed the appeal, affirming binding Court of Appeal precedent that the Crown's privilege to refuse discovery can only be taken away by express statutory words.

The court also rejected the argument that the Crown had attorned to the court's jurisdiction for discovery purposes by defending the action and voluntarily participating in some discovery.

The defendants, Robert Horychuk and Enterprise Rent-A-Car Canada Company, brought a motion for leave to appeal an order regarding examinations for discovery.

The Divisional Court granted leave to appeal on two questions: whether the court has jurisdiction to compel the Ministry of Transportation to answer questions on discovery under the Public Transportation and Highway Improvement Act, and if not, whether the Ministry attorned to the court's jurisdiction by defending the claims.

Costs were reserved to the panel hearing the appeal.

The plaintiff in the Severance action moved for an order extending the time to set two related motor vehicle accident cases down for trial until December 31, 2024.

All parties consented except the Ministry of Transportation and Carillion Canada.

The court found that the opposing defendants would not be prejudiced by the extension, whereas the plaintiffs and other defendants would suffer prejudice if forced to set the actions down while a leave to appeal decision regarding discovery refusals was pending.

The motion to extend the time was granted.

This appeal concerned the interpretation of an exclusion clause (s. 1.8.2) in the standard Ontario Automobile Policy regarding uninsured motorist coverage for passengers in a stolen vehicle.

The motion judge had ruled that the exclusion applied to the plaintiff passenger, Joshua Burnham, even if he did not know the vehicle was stolen, thereby shifting liability to the Motor Vehicle Accident Claims Fund.

The Court of Appeal reversed this decision, holding that the exclusion does not apply to innocent passengers in the insured vehicle, aligning with the policy's legislative history and purpose to expand coverage and reduce reliance on the Fund.

The Severance Plaintiffs brought a motion, supported by the O’Brien Plaintiffs and other defendants, to compel the Ministry of Transportation (HMK) to answer refusals and reattend examination for discovery in a highway negligence action.

HMK resisted, arguing it was not compellable for discovery under the Public Transportation and Highway Improvement Act (PTHIA) and that the questions were improper.

The court, following the precedent set by Longo v. The Queen and Stegenga v. Jans, found that HMK is not compellable for discovery in claims brought under the PTHIA, as the Act does not expressly provide for such rights.

The court also rejected the argument that HMK had attorned to the court's jurisdiction by voluntarily participating in discovery, noting that voluntary participation does not create a right to compel reattendance if no statutory right exists.

Consequently, the motion was dismissed.

The plaintiff was struck by an uninsured driver and sought coverage under the uninsured and underinsured provisions of an automobile insurance policy issued to his child's mother.

The insurer denied coverage, arguing the plaintiff did not meet the definition of 'spouse' as the couple had ceased living in a conjugal relationship.

The court applied a holistic approach to the definition of 'spouse' for parents of a child, finding that living under the same roof was not strictly required.

The court concluded that the parties had not formed a settled intention to end their relationship and were living in a conjugal relationship of some permanence at the time of the accident.

The plaintiff was found entitled to coverage under the policy.

The applicant was injured when he fell off his e-bike after riding over a patch of motor oil on the road.

He sought statutory accident benefits, claiming the oil was spilled during the ordinary use or operation of an automobile.

The Licence Appeal Tribunal found that the applicant failed to establish on a balance of probabilities that the spill originated from an automobile.

As the purpose test was not met, the incident did not qualify as an 'accident' under s. 3(1) of the Schedule, and the application was dismissed.

The defendant insurer brought a Rule 21.01 motion to dismiss the plaintiff's action for uninsured motorist coverage.

The plaintiff was injured as a passenger in a stolen vehicle insured by the defendant.

The Minister, responding on behalf of the uninsured driver's estate, argued the plaintiff was entitled to coverage because he did not know the vehicle was stolen.

The court held that under section 1.8.2 of the Standard Ontario Automobile Policy, coverage is excluded for the automobile insured by the policy if it is operated without the owner's consent, regardless of the passenger's knowledge.

The motion was granted and the action against the insurer was dismissed.

The Severances, defendants by counterclaim, moved to strike a counterclaim brought by Her Majesty the Queen in Right of the Province of Ontario and Carillion Canada Inc. (HMQ) in the Subject Action.

HMQ's counterclaim sought contribution and indemnity for claims asserted against them in a separate Barrie Action, where the Severances were not parties.

The court found that HMQ's counterclaim was procedurally improper under Rule 21.01(1)(b) as it did not disclose a reasonable cause of action in the Subject Action, as such claims should be brought as third-party claims in the Barrie Action.

The motion to strike was granted without leave to amend, though HMQ was not prejudiced from seeking leave to add the Severances as third parties in the Barrie Action.

The applicant sought a loss of earning capacity benefit (LECB) offer from the respondent following a 1994 motor vehicle accident.

The respondent argued the claim was barred under s. 20.1 of the Statutory Accident Benefits Schedule because the applicant had not commenced a mediation, arbitration, or court proceeding prior to March 1, 2006.

The applicant contended that s. 20.1 did not apply because the respondent never issued a proper written denial of her income replacement benefits.

The Tribunal held that regardless of whether a proper denial was issued, the failure to commence a proceeding before the March 1, 2006 deadline meant the applicant was not entitled to an LECB offer.

The preliminary issue was resolved in favour of the respondent.

The plaintiffs brought a motion to remove the defendant MVAC's counsel of record from the tort claim.

The counsel was acting for MVAC in both the accident benefits claim and the tort claim.

After initially accepting the plaintiff's catastrophic impairment designation, the counsel abruptly reversed the decision hours later without explanation.

The court found that a reasonably informed onlooker would perceive a possibility of conflict and misuse of information, warranting the disqualification of counsel to maintain the integrity of the administration of justice.

The applicant sought an award under Ontario Regulation 664, alleging the respondent unreasonably delayed payment for two 2016 chiropractic treatment plans.

The respondent argued the delay was justified because the applicant failed to comply with a section 33 request for information made by the prior adjusting insurer.

The Tribunal found the applicant did not dispute the validity of the section 33 request and only provided the requested documents two days before the case conference, after which the respondent promptly paid the accounts.

The Tribunal concluded the respondent's refusal to pay was not unreasonable under section 33(6) of the Schedule and dismissed the claim for an award.

The applicant, a Chinese citizen visiting Ontario, was struck by an unidentified vehicle as a pedestrian and sought statutory accident benefits from the Motor Vehicle Accident Claims Fund (MVACF).

The respondent denied the claim on the basis that the applicant was not ordinarily resident in Ontario at the time of the accident, as required by section 25 of the Motor Vehicle Accident Claims Act.

The Tribunal applied the Thomson residency test and found that the applicant's stay in Ontario was not of a sufficiently permanent nature to establish ordinary residence.

The applicant was in Ontario on a visitor visa, had no Canadian income or bank account, and returned to China shortly after completing an English language course.

The application for benefits was dismissed.

The Motor Vehicle Accident Claims Fund appealed a trial judgment in which it successfully sued an automobile insurer for restitution based on unjust enrichment.

The insurer had purported to terminate an automobile insurance policy for non-payment of premiums by sending notice only to the named insured (the vehicle owner's wife) rather than to the actual owner.

The policy remained in force when a catastrophic accident occurred.

The injured passenger obtained a judgment against the vehicle owner and assigned it to the fund, which paid the judgment and then sued the insurer for restitution.

The Court of Appeal upheld the trial judgment, finding that the notice of termination was ineffective because it was not sent to the actual owner as required by statutory condition 11(1) of Ontario Regulation 777/93, that the fund was not bound by the Insurance Act's limitation period because the Crown enjoyed immunity from the Act's provisions, and that the fund was entitled to bring a claim in unjust enrichment rather than being restricted to the statutory remedy under section 258 of the Insurance Act.

Following the dismissal of a summary judgment motion, the successful party sought partial indemnity costs.

The court considered the amended Rule 20 of the Rules of Civil Procedure and the developing jurisprudence governing costs consequences of unsuccessful summary judgment motions.

The court found that both bringing and resisting the motion had been reasonable and that the matter was a close contest.

Applying the approach in prior authority, the court ordered that costs be payable in the cause rather than immediately.

The amount of costs was fixed at $6,895.94.

An automobile insurer brought a motion for summary judgment seeking dismissal of a negligence action against the vehicle owner, arguing the vehicle was in the possession of another person without the owner’s consent under s. 192(2) of the Highway Traffic Act.

The Minister of Finance, defending in the name of the driver under the Motor Vehicle Accident Claims Act, argued that the owner’s evidence regarding consent was inconsistent and raised factual issues.

The court held that the evidence created a genuine issue requiring a trial, particularly regarding whether consent or implied consent existed.

The court also found that the procedural circumstances disadvantaged the Minister in defending the action.

The motion for summary judgment was dismissed.

The applicant was injured in a single-vehicle rollover accident and sought a determination that he sustained a catastrophic impairment based on a Glasgow Coma Scale (GCS) score of 9 or less.

The applicant relied on the oral testimony of two paramedics who attended the scene and claimed to have administered a GCS test resulting in a score of 3.

The arbitrator found that the applicant was the passenger found imbedded in the hillside, but rejected the paramedics' evidence that they had administered a GCS test.

The arbitrator concluded that the paramedics likely used the grosser AVPU test for triage and that their recollection of administering a GCS test and assigning a score of 3 almost nine years later without notes was unreliable.

The application was dismissed.