William S. Zener

Following the dismissal of the plaintiffs' action against the defendant lawyers, the court determined the issue of costs.

The plaintiffs argued that costs should not be awarded due to the lead plaintiff's hardship as a paraplegic, the fact that the defendants were insured by LawPro, and the defendants' failure to make settlement offers.

The court rejected these arguments, holding that hardship does not displace the rule that costs follow the event, and that the presence of insurance is irrelevant to costs awards.

The court fixed the defendants' costs at $250,000 for the main action and $7,500 for the abandoned Family Law Act claims.

The plaintiff was severely injured in a motorcycle accident in Jamaica.

She retained the defendant lawyer to investigate potential insurance claims.

The lawyer advised that her family's Ontario automobile insurance policy would not provide accident benefits due to a territorial restriction limiting coverage to North America, and thus did not file an application for benefits before the two-year limitation period expired.

The plaintiff sued the lawyer for professional negligence, arguing he should have filed the application to preserve her rights, especially given subsequent changes in case law.

The court dismissed the action, finding the lawyer met the standard of care of a reasonably competent expert in insurance law at the time, and that an application for benefits would likely have been denied anyway.

In an appeal concerning underinsured motorist coverage under the OPCF 44R, the insurer argued that the limitation period began when the insured knew or ought to have known that the tort claim exceeded the tortfeasor's policy limits.

The court held that the discoverability rule in s. 5 of the Limitations Act, 2002 governs, not the discoverability wording in s. 17 of the endorsement.

Applying the reasoning in Markel, the court held that a legally enforceable indemnity claim is discovered only once a demand for indemnification has been made and default has occurred.

The limitation period therefore begins to run the day after the demand for indemnity is made.

The appeal was dismissed, subject to a minor amendment to the order.

The appellants appealed a Master's order dismissing their motion to extend the time for service of a Statement of Claim arising from a fatal motor vehicle accident.

The Master had found that the defendants would be prejudiced by the delay.

The Divisional Court allowed the appeal, finding that the Master erred in law by concluding that a co-defendant's right to claim contribution and indemnity was lost due to the expiry of a limitation period, and by failing to hold the defendants to their evidentiary obligation to demonstrate actual prejudice caused by the delay in service.

The appellants were granted leave to serve the Statement of Claim.

The plaintiff appealed a Master's decision dismissing a motion to set aside a Registrar's order dismissing the action for delay.

The Divisional Court admitted new evidence showing the Master was inadvertently misled regarding the plaintiff's answers to undertakings and the timing of evidence on liability.

Finding that the Master made palpable and overriding errors of fact and that the defendant would suffer no prejudice, the Court allowed the appeal and set aside the dismissal order.

The appellants, who were minors at the time of their respective motor vehicle accidents, commenced actions for damages more than two years after the accidents but within two years of reaching the age of majority.

The central issue was whether the two-year limitation period in section 180(1) of the Highway Traffic Act excluded the operation of section 47 of the Limitations Act, which postpones the running of limitation periods for persons under legal disability.

The Supreme Court of Canada held that the provisions are not inconsistent and that section 47 applies to postpone the limitation period for minors.

The appeals of the minor plaintiffs were allowed.

However, the adult plaintiff's claim, which was commenced after the limitation period expired, was held to be incurably out of time and was dismissed.