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.

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 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 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 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.