Turnbull

The applicants were seriously injured in a motorcycle accident and inadvertently applied for statutory accident benefits to the insurer of the motorcycle rather than their own auto insurer, with whom they had purchased optional enhanced benefits.

When they attempted to claim the optional benefits, their auto insurer denied the claim on the basis that they had already applied to another insurer.

The applicants brought an application to the Superior Court for relief from forfeiture.

The court dismissed the application, finding that under section 280 of the Insurance Act, exclusive jurisdiction to resolve disputes regarding entitlement to statutory accident benefits lies with the Licence Appeal Tribunal (LAT), stripping the court of jurisdiction to grant equitable relief in this context.

The defendant brought a motion to amend their statement of defence to plead spoliation, alleging the plaintiff lost or destroyed a clinical file from an attendant care provider.

The motion was based on a letter from the provider stating the file was left at the plaintiff's home, which the plaintiff vigorously denied under oath.

The court adjourned the motion, finding that the amendment was based on double hearsay and would cause irreparable prejudice to the plaintiff without a proper evidentiary basis, granting the defendant leave to return with proper affidavit evidence.

Following a trial where the plaintiff's negligence action was dismissed on causation, the successful defendants sought partial indemnity costs of approximately $60,000.

The court considered the plaintiff's success on the issues of duty of care, breach, and foreseeability, which consumed significant trial time.

The court also factored in the economic disparity between the personal plaintiff and the insurer-backed defendants, who refused to mediate or make a Rule 49 offer.

After deducting the plaintiff's costs thrown away from two trial adjournments and the costs of an expert witness whose testimony would have been unnecessary had the defendants complied with statutory requirements, the court reduced the remaining costs by 50% to reflect the plaintiff's partial success on the issues.

The plaintiff was ordered to pay costs of $13,743.92.

The court determined costs following two motions regarding custody and access.

Although the applicant succeeded in setting aside a previous temporary order, he did not succeed in his main goal of returning to 50/50 residence, and the respondent was overall successful.

The court awarded the respondent costs of $2,500 plus HST, finding the amount very reasonable compared to her actual legal fees.

The applicant estate sought a declaration that the respondent insurer had a duty to defend it in an underlying action arising from a fatal ammonia leak.

The insurer denied coverage, relying on a 'Total Pollution Exclusion' in the commercial general liability policy.

The court found the exclusion clause ambiguous, as it failed to define 'pollution' and could reasonably be interpreted by the insured as applying only to traditional environmental pollution, not an accidental indoor leak of ammonia during routine mechanical work.

The application was granted, and the insurer was ordered to defend the estate.

The applicant mother brought a motion to vary child support, seeking to impute income to the respondent father who had been unemployed for over ten years.

The respondent brought a cross-motion for retroactive child support, alleging the applicant failed to disclose her increasing income and worked undisclosed jobs.

The court imputed income to both parties: to the applicant for 'under the table' restaurant work and a home business, and to the respondent at an ODSP-equivalent level.

Finding the applicant's failure to disclose her income tax returns as ordered constituted blameworthy conduct, the court ordered retroactive child support payable by the applicant from 2015.

The parties separated after a 21-year marriage.

The primary issue was the equalization of the matrimonial home, which the respondent had inherited from her grandparents.

The applicant claimed a 50% ownership interest based on an alleged agreement and unjust enrichment, and sought an unequal division of net family property under s. 5(6) of the Family Law Act due to significant post-separation increases in the property's value.

The court found the respondent was the sole owner but the applicant was entitled to an equalization payment based on the valuation date value.

The court declined to apply s. 5(6), finding the threshold of unconscionability was not met.

The court also awarded the applicant occupation rent for a mobile home on the property, retroactive spousal support, and ordered him to pay child support for one child.

Following a successful summary judgment motion to enforce four mortgages, the plaintiff mortgagee sought costs on a substantial indemnity basis as provided in the standard charge terms.

The defendants argued for partial indemnity costs, noting the plaintiff initially claimed interest exceeding the criminal rate and provided inaccurate discharge statements.

The court awarded partial indemnity costs for the steps up to the summary judgment motion due to the plaintiff's improper conduct, but awarded substantial indemnity costs for the motion itself because the defendants persisted in an unsuccessful misrepresentation defence.

Total costs were fixed at $63,772.65.

The applicant father brought a motion to set aside a temporary order that granted sole custody of the parties' child to the respondent mother, seeking to reinstate a prior shared parenting arrangement.

The respondent mother brought a cross-motion for a permanent order of sole custody.

Due to high conflict between the parents, the court interviewed the 12-year-old child, who expressed a preference to live with his mother and have discretionary weekend visits with his father.

Finding that joint custody was inappropriate given the parents' inability to communicate, the court dismissed the father's motion and granted sole custody to the mother, with specified parenting time for the father in accordance with the child's wishes.

The plaintiff was assaulted by two unknown individuals in the stairwell of a municipal parking garage.

He sued the city and its contracted security company for negligence and breach of the Occupiers' Liability Act, alleging inadequate security measures.

The court found that both defendants owed a duty of care and breached it by failing to conduct threat/risk assessments, install video cameras in stairwells, or implement adequate security patrols.

However, the action was dismissed because the plaintiff failed to prove causation; the assault lasted only 30 seconds, meaning it could not have been prevented even if proper security measures had been in place.

The applicant mother brought a motion for retroactive child support for the parties' two adult sons.

The respondent father had ceased paying child support in August 2016, arguing the children were no longer residing with the mother or attending school.

The court analyzed the residency and educational status of both children between 2010 and 2020.

The court found the father was obligated to pay support for one son until August 2016 and for the other son until April 2020, as the latter was unable to become self-supporting due to a disability and lack of education before returning to college.

The court ordered the father to pay $47,610 in child support arrears.

The plaintiff brought a motion for summary judgment on a series of mortgages granted to the defendants.

The defendants counterclaimed, alleging an oral agreement that the plaintiff would pay out all outstanding executions against them, and argued the mortgages charged a criminal rate of interest.

The court found no evidence of the alleged oral agreement.

While the initial discharge statements contained illegal interest rates, the court applied notional severance to enforce the principal amounts advanced and the stipulated interest rates (18% and 24%).

Summary judgment was granted to the plaintiff for the principal amounts and possession of the properties, while the defendants' counterclaim regarding the discharge statements was allowed to proceed.

Following a personal injury jury trial where the plaintiff established liability but recovered zero damages due to the statutory threshold, the successful defendant sought costs.

The defendant also sought an order under Rule 57.07 that the plaintiff's lawyers personally pay the costs.

The court awarded the defendant partial indemnity costs, finding no reason to depart from the general rule that costs follow the event.

The court dismissed the request for costs against the plaintiff's lawyers, finding their conduct did not meet the high threshold of exceptional circumstances.

The court significantly reduced the defendant's claimed fees and disbursements, including expert witness fees and counsel's hotel expenses, ultimately fixing costs at $189,298.68.

The plaintiff mortgagee brought a motion for summary judgment on several high-interest, short-term mortgages in default.

The defendant mortgagors counterclaimed, alleging they were induced to sign the mortgages based on the plaintiff's oral misrepresentations that it would fund the removal of several executions registered against them.

The court found that determining whether such an agreement existed relied heavily on credibility.

Consequently, the court ordered a mini-trial under Rule 20.04(2.2) to hear viva voce evidence from the key deponents before deciding the summary judgment motion.

Following a civil jury trial for a motor vehicle accident, the judge considered whether the plaintiff's injuries met the statutory threshold under the Insurance Act.

The plaintiff claimed the accident exacerbated his pre-existing severe osteoarthritis in his right shoulder.

The court found the plaintiff failed to prove on a balance of probabilities that he suffered a permanent, serious impairment caused by the accident, noting his pre-existing condition, return to work, and lack of immediate injury complaints.

The plaintiff's claim for non-pecuniary damages was dismissed.

In a personal injury trial arising from a motor vehicle accident, the plaintiff sought to have the jury consider several heads of damages, including future housekeeping costs, future care costs, past loss of income, future loss of income, and loss of competitive advantage.

The defendant opposed putting these questions to the jury, arguing a lack of evidentiary foundation.

The trial judge reviewed the evidence and determined that the plaintiff failed to provide sufficient economic, accounting, or medical evidence to support the claims for future housekeeping, future care, past loss of income, and future loss of income.

Consequently, those questions were not put to the jury.

However, the court found sufficient evidence, including expert medical testimony, to allow the jury to consider the claim for loss of competitive advantage.

Following an obstetrical malpractice trial where the jury found the defendant obstetrician 32% liable for the infant plaintiff's severe cerebral palsy, the defendant brought a motion under Rule 52.08 to dismiss the action or order a retrial.

The defendant argued the jury gave conflicting answers on causation and that there was no evidence to support their findings on the standard of care and delay in delivery.

The court dismissed the motion, finding the jury's use of the word 'contributed' did not conflict with the 'but for' causation test, and that there was ample expert evidence supporting the jury's conclusion that the defendant's failure to promptly prepare for an emergency c-section caused the infant's brain damage.

Judgment was ordered to be entered in accordance with the jury's verdict.

The defendant brought a motion at the outset of a personal injury jury trial to preclude the plaintiff from adducing evidence contrary to a prior guilty plea for a Highway Traffic Act offence.

The plaintiff had pled guilty through a paralegal to disobeying a lane light following the motor vehicle accident.

The court held a voir dire and found that the guilty plea was not voluntary, unequivocal, or fully informed, as the plaintiff consistently maintained he had a green light and pled guilty only for convenience due to a new job.

The court dismissed the motion, ruling that permitting the plaintiff to adduce evidence to the contrary would not constitute an abuse of process.

During an ongoing medical negligence trial involving a minor plaintiff who suffered severe brain damage at birth, the parties disputed the phrasing of the jury question on causation.

The plaintiffs argued for the phrase 'caused or contributed to', relying on recent jurisprudence involving multiple tortfeasors.

The defendant argued for the conventional 'but for' standard.

The court held that the factual matrix was not so confusing as to preclude the conventional 'but for' test, and ordered the jury questions to be phrased using the 'but for' standard.

Following the dismissal of the plaintiff's $1,000,000 action, the court determined the costs payable to the successful defendants.

The defendants had served an offer to settle for $5,000 which was not accepted.

Applying Rule 49, the court awarded the defendants partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, fixing the total costs at $40,701.10 inclusive of disbursements and HST.