COURT OF APPEAL SUMMARIES (AUGUST 5 – AUGUST 9)

T.O. Estate v. D.O. was a family law decision that dealt with debts owing between the spouses and their corporations. At trial, the $ 341,000 debt owing by the wife’s company to the husband was found to be statute-barred. The wife was found to owe $ 40,346 to the husband. The Court allowed both their appeals. The large debt owing by the wife’s company was found not to be statute-barred, as it was a demand loan and demand was made within two years of when the husband sued on that debt. However, the Court found that the wife’s personal debt was owing to the husband’s corporation, not the husband, so the wife’s appeal in respect of this smaller debt was allowed.

Lilleyman v. Bumble Bee Foods LLC was an appeal from the dismissal of a certification motion. The class action alleged a conspiracy to fix the price of canned tuna, but the representative plaintiff could not meet the basic threshold of pleading a reasonable cause of action. The Court dismissed the appeal on all grounds.

Kestenberg Siegal Lipkus LLP v. Royal & Sun Alliance Insurance Company of Canada was an insurance coverage dispute between a law firm and its excess E&O insurers. The respondent insurer denied coverage of the claim because the law firm failed to report its claim on a timely basis. The application judge dismissed the application for relief from forfeiture because there could be no such relief when coverage never arose. Timely notice of a claim is a condition precedent to coverage, so where the notice condition is not met, there is no coverage that has been forfeited as a result of some technical non-compliance. The Court dismissed the appeal.

Morrissey v Wawanesa was a lengthy statutory accident benefits case that dealt with the process for applying to insurers for such benefits in light of changes made to the scheme in 2010.

Wishing everyone an enjoyable weekend!

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

T.O. Estate v. D.O., 2024 ONCA 603

Keywords: Family Law, Contracts, Demand Loans, Civil Procedure, Limitation Periods, Limitations Act, 2002, S.O. 2002, c. 24, ss. 4, 5(1), 5(3), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(1), Bank of Nova Scotia v. Williamson, 2009 ONCA 754, Skuy v. Greennough Harbour Corporation, 2012 ONSC 6998, Dasham Carriers Inc. v. Gerlach, 2013 ONCA 707, Urbas v. Home Savings, 2015 ONSC 6399, DeBathe et al v. T.A. Steadman Holdings Inc. et al, 2001 BCSC 1817, Noronha v. Siqueira, [1934] 2 W.W.R. 117 (P.C.), Northern Ontario Acceptance Co. v. Beaver Hall Investments (Ontario) Ltd., [1967] 1 O.R. 305 (S.C.)

Lilleyman v. Bumble Bee Foods LLC, 2024 ONCA 606

Keywords: Competition Law, Price Fixing, Torts, Conspiracy, Civil Procedure, Class Proceedings, Certification, Reasonable Cause of Action, Common Issues, Preferable Procedure, Class Proceedings Act, 1992, S.O. 1992, c. 6 ss. 5(1), 30(1), Competition Act, R.S.C 1985, c. C-34, ss. 45, 46, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), Hollick v. Toronto (City), 2001 SCC 68, Housen v. Nikolaisen, 2002 SCC 33, MC York Properties Inc. v. Siudak, 2022 ONCA 635, Jensen v. Samsung Electronics Co. Ltd., 2023 FCA 89, Palmer v. Teva, 2024 ONCA 220, Pioneer Corp. v. Godfrey, 2019 SCC 42, Obodo v. Trans-Union of Canada, Inc., 2022 ONCA 814, Das v. George Weston Limited, 2018 ONCA 1053, Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, Simpson v. Facebook, 2022 ONSC 1284, Kuiper v. Cook, 2020 ONSC 128, Frayce v. BMO, 2024 ONSC 533

Kestenberg Siegal Lipkus LLP v. Royal & Sun Alliance Insurance Company of Canada, 2024 ONCA 607

Keywords: Contracts, Insurance, Coverage, Professional Liability Insurance, Lawyers, Notice of Claim, Remedies, Relief from Forfeiture, Insurance Act, R.S.O. 1990, c. I.8, s.129, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2021 ONSC 984, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66, Stuart v. Hutchins (1998), 40 O.R. (3d) 321 (C.A.), Kozel v. Personal Insurance Co., 2014 ONCA 130, Ledcor Construction Ltd. v. Northbridge, 2016 SCC 37, Housen v. Nikolaisen, 2002 SCC 33, Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21, Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252, Furtado v. Lloyd’s Underwriters, 2024 ONCA 579, Lavoie v. T.A. McGill Mortgage Services Inc., 2014 ONCA 257, Dams v. TD Home and Auto Insurance Co., 2016 ONCA 4, McNish and McNish v. American Home Assurance Co. (1989), 68 O.R. (2d) 365 (H.C.J.), Qualiglass Holdings Inc. v. Zurich Indemnity Company of Canada, 2004 ABQB 577, Cronos Group Inc. v. Assicurazioni Generali S.p.A., 2022 ONCA 525, Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada, 2022 ONCA 862, Allmerica Financial Corp. v. Certain Underwriters at Lloyd’s, London (2007), 449 Mass. 621, 87 N.E. 2d 418

Morrissey v. Wawanesa Insurance Company, 2024 ONCA 602

Keywords: Insurance Law, Statutory Accident Benefits, Attendant Care Benefits, Statutory Interpretation, Insurance Act, R.S.O. 1990, c. I.8, s. 268, O. Reg. 403/96, s. 16(2), Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996, O. Reg. 34/10, s. 3(7)(e) and s. 42(5), Statutory Accident Benefits Schedule – Accidents on or After September 1, 2010, Belair Insurance Co. v. McMichael (2007), 86 O.R. (3d) 68 (Div. Ct.), Monks v. ING Insurance Company of Canada, 2008 ONCA 269, Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265, T.K. v. Unica Insurance Inc., 2017 CanLII 15835 (Ont. LAT), J.M. v. Certas Home and Auto Insurance Company, 2018 CanLII 132564 (Ont. LAT), Motor Vehicle Accident Claim Fund v. Barnes, [2017] O.F.S.C.D. No. 99 (FSCO App.), Barnes v. Motor Vehicle Accident Claims Fund, 2019 ONSC 1782, Beattie v. National Frontier Insurance Co. (2003), 68 O.R. (3d) 60 (C.A.), Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Abarca v. Vargas, 2015 ONCA 4, Smith v. Co-operators General Insurance Co., 2002 SCC 30, Meyer v. Bright (1993), 15 O.R. (3d) 129 (C.A.), T.N. v. Personal Insurance Company of Canada, 2012 ONFSCDRS 119 (FSCO Arb.), Kelly v. Guarantee Company of North America, 2014 ONFSCDRS 128 (FSCO Arb.), M.G. v. Economical Mutual Insurance Company, 2014 ONFSCDRS 119 (FSCO App.), C.W. v. Jevco Insurance Company, 2019 CanLII 22200 (Ont. LAT), E.E. v. Aviva Insurance Company, 2018 CanLII 81909 (Ont. LAT), G.J. v. Coachman Insurance Company, 2018 CanLII 81882 (Ont. LAT)

Short Civil Decisions

Konstan v. Berkovits, 2024 ONCA 604

Keywords: Costs

Yan v. Pritchard-Sobhani, 2024 ONCA 612

Keywords: Administrative Law, Regulated Professions, Chinese Medicine Practitioners and Acupuncturists, Professional Discipline, Torts, Defamation, Civil Procedure, Vexatious Litigation, Frivolous, Vexatious, Abuse of Process, Collateral Attack, Rules of Civil Procedure, r. 2.1.01(1). 2.1.01(3) and 63.01(1), Amikwabi v. Pope Francis, 2022 ONCA 236

Royal Bank of Canada v. Everest Group Inc., 2024 ONCA 611

Keywords: Costs

CIVIL DECISIONS

T.O. Estate v. D.O., 2024 ONCA 603

[Roberts, Zarnett and Favreau JJ.A.]

Counsel:

T. Pagliaroli and V. Mishra, for the appellant

R. Kostyniuk, for the respondents

Keywords: Family Law, Contracts, Demand Loans, Civil Procedure, Limitation Periods, Limitations Act, 2002, S.O. 2002, c. 24, ss. 4, 5(1), 5(3), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(1), Bank of Nova Scotia v. Williamson, 2009 ONCA 754, Skuy v. Greennough Harbour Corporation, 2012 ONSC 6998, Dasham Carriers Inc. v. Gerlach, 2013 ONCA 707, Urbas v. Home Savings, 2015 ONSC 6399, DeBathe et al v. T.A. Steadman Holdings Inc. et al, 2001 BCSC 1817, Noronha v. Siqueira, [1934] 2 W.W.R. 117 (P.C.), Northern Ontario Acceptance Co. v. Beaver Hall Investments (Ontario) Ltd., [1967] 1 O.R. 305 (S.C.)

facts:

Following the breakdown of the marriage between D.O. (the “wife”) and T.O. (the “husband”), litigation was initiated to resolve issues including divorce, spousal support, parenting, child support, and the classification of financial advances made by the husband.

Ridgeway operated a daycare business. In 2012, a corporation owned by the husband advanced $ 40,346 to assist the daycare business. During 2013, the husband advanced, in three tranches, a total of $ 341,000 to Ridgeway. The advances were not repaid.

The trial judge found that the wife’s corporation, Ridgeway, owed the husband $ 341,000, but dismissed the claim due to the expiration of the limitation period. The trial judge did find that the wife owed the husband $ 40,346 for money advanced to her by a corporation owed by the husband in 2012.

The husband’s estate (he passed away after the trial) appealed and the wife cross-appealed.

issues:

1. Did the trial judge err in finding that the husband’s claim for repayment of $ 341,000 from Ridgeway was statute-barred due to the limitation period?
2. Did the trial judge err in holding the wife liable for the $ 40,346 advanced by the husband’s corporation and in calculating the child support owed by the husband?

holding:

Appeal allowed in part. Cross-appeal allowed.

reasoning:

Appeal:
1. Yes. The trial judge erred in not treating the $ 341,000 advanced by the husband to Ridgeway as a demand loan. Under the Limitations Act, 2002, the limitation period did not begin to run until a demand for repayment was made. Since the demand was within two years of the amended application, the claim was not statute-barred.

Cross-Appeal:
2. Yes. The trial judge erred in holding the wife liable for the $ 40,346 advanced by the husband’s corporation, as the corporation, not the husband, made the advance, and there was no assignment of the debt to the husband. Additionally, the trial judge made an acknowledged error in calculating child support, which the estate conceded.

Lilleyman v. Bumble Bee Foods LLC, 2024 ONCA 606

[Huscroft, Coroza and Monahan JJ.A.]

Counsel:

K.R. Taylor, A. Allison and A.T. Mulligan, for the appellant

E.N. Kolers, S.R. Henning and E Turner, for Lion Capital LLP, Lion Capital (Americas) Inc., and Lion/Big Catch Cayman LP

S.A. Forbes, C. Cseh and H. Machum, for Starkist Co. and Dongwon Industries Co., Ltd.

A. Formosa, M. Allen, for Tri-Union Seafoods LLC c/o Chicken of the Sea International Inc. and Thai Union Group Public Company Limited

C. Hubbard, N. Iatrou and W. Rooney, for Del Monte Corporation n/k/a/ Big Heart Pet Brands Inc.

Keywords: Competition Law, Price Fixing, Torts, Conspiracy, Civil Procedure, Class Proceedings, Certification, Reasonable Cause of Action, Common Issues, Preferable Procedure, Class Proceedings Act, 1992, S.O. 1992, c. 6 ss. 5(1), 30(1), Competition Act, R.S.C 1985, c. C-34, ss. 45, 46, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), Hollick v. Toronto (City), 2001 SCC 68, Housen v. Nikolaisen, 2002 SCC 33, MC York Properties Inc. v. Siudak, 2022 ONCA 635, Jensen v. Samsung Electronics Co. Ltd., 2023 FCA 89, Palmer v. Teva, 2024 ONCA 220, Pioneer Corp. v. Godfrey, 2019 SCC 42, Obodo v. Trans-Union of Canada, Inc., 2022 ONCA 814, Das v. George Weston Limited, 2018 ONCA 1053, Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, Simpson v. Facebook, 2022 ONSC 1284, Kuiper v. Cook, 2020 ONSC 128, Frayce v. BMO, 2024 ONSC 533

facts:

The appellant alleged that since 2004, the defendants conspired to fix the price of canned tuna in Canada, violating sections 45 and 46 of the Competition Act and common law. This claim was based on findings from U.S. antitrust proceedings between 2011 and 2013. The appellant argued that a similar conspiracy involving the U.S. conspirators and additional entities took place in Canada. The claim categorized the eleven named defendants into three groups.

The conspiracy allegedly involved an unlawful agreement to coordinate price increases, allocate sales and markets, and reduce tuna supply to inflate prices in Canada, affecting both the defendants’ brands and other grocery chains.

The motion judge noted that the test for certification is to be applied in a purposive and generous manner to give effect to the goals of class proceedings.

The motion judge dismissed the certification motion because the representative plaintiff/appellant failed to satisfy three of the five criteria for certification under s. 5(1) of the Class Proceedings Act, 1992 (the “CPA”). He found that the appellant had failed to plead material facts sufficient to disclose a reasonable cause of action against the defendants. He also found that, while three of the eleven defendants had participated in a conspiracy to fix the prices of canned tuna in the United States, there was no basis in fact for the claim that the alleged conspiracy could or might have affected Canadian consumers.

issues:

1. Did the motion judge err by misconstruing the pleaded conspiracy and incorrectly concluding the pleadings failed to disclose a cause of action under s. 5(1)(a) of the CPA?
2. Did the motion judge err by applying the wrong test to determine “some basis in fact” for common issues under s. 5(1)(c) of the CPA?
3. Did the motion judge err in concluding that a class proceeding would not be the preferable procedure, in accordance with s. 5(1)(d) of the CPA?

holding:

Appeal dismissed.

reasoning:

1. No. The motion judge did not err in his assessment of the pleaded conspiracy. The judge correctly identified that the claim lacked material facts. He accurately analyzed the nature of the alleged conspiracy, focusing on the lack of any substantial link between the U.S. conspirators and the Canadian market. Furthermore, the motion judge’s analysis satisfied the “cause of action” criterion, did not misapprehend the conspiracy that was pleaded and made no palpable or overriding error in concluding that the pleadings failed to disclose a cause of action. The judge’s findings were consistent with the standard of review for questions of mixed fact and law, as highlighted in Palmer v. Teva, at paras. 34-35 and Das v. George Weston Limited, at para. 74.

2. No. The motion judge did not err in applying the “some basis in fact” test under s. 5(1)(c) of the CPA. The judge correctly applied a low evidentiary standard, requiring only minimal evidence to establish the existence of common issues. His approach was consistent with established jurisprudence, including Pro-Sys Consultants Ltd. v. Microsoft Corporation, at para. 110 and Jensen v. Samsung Electronics Co., at para. 83, where it was emphasized that the “some basis in fact” standard does not equate to a balance of probabilities. The motion judge found that the plaintiff failed to provide sufficient evidence connecting the U.S. conspiracy to the Canadian market and that the expert evidence provided was flawed and contradictory. This application of the test was proper, and the judge’s findings were entitled to deference.

3. No. The motion judge did not err. He applied the correct legal standards and determined that the claim lacked the necessary evidence to support the alleged conspiracy’s impact on Canadian consumers. His conclusion aligned with the gatekeeping function of certification, as discussed in Simpson v. Facebook, at paras. 25-26 and Kuiper v. Cook, at paras. 27-33, where courts emphasized the necessity of some evidentiary basis for claims before certifying them as class actions. The judge’s decision to dismiss the certification motion was well-founded and in accordance with the goal of the certification process to prevent frivolous or unfounded claims from proceeding.

Kestenberg Siegal Lipkus LLP v. Royal & Sun Alliance Insurance Company of Canada, 2024 ONCA 607

[Gillese and Copeland JJ.A. and Wilton-Siegel J. (ad hoc)]

Counsel:

L. Theall and D. Cox, for the appellants

J. Tam and T. Donnelly, for the respondents

Keywords: Contracts, Insurance, Coverage, Professional Liability Insurance, Lawyers, Notice of Claim, Remedies, Relief from Forfeiture, Insurance Act, R.S.O. 1990, c. I.8, s.129, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2021 ONSC 984, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66, Stuart v. Hutchins (1998), 40 O.R. (3d) 321 (C.A.), Kozel v. Personal Insurance Co., 2014 ONCA 130, Ledcor Construction Ltd. v. Northbridge, 2016 SCC 37, Housen v. Nikolaisen, 2002 SCC 33, Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21, Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252, Furtado v. Lloyd’s Underwriters, 2024 ONCA 579, Lavoie v. T.A. McGill Mortgage Services Inc., 2014 ONCA 257, Dams v. TD Home and Auto Insurance Co., 2016 ONCA 4, McNish and McNish v. American Home Assurance Co. (1989), 68 O.R. (2d) 365 (H.C.J.), Qualiglass Holdings Inc. v. Zurich Indemnity Company of Canada, 2004 ABQB 577, Cronos Group Inc. v. Assicurazioni Generali S.p.A., 2022 ONCA 525, Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada, 2022 ONCA 862, Allmerica Financial Corp. v. Certain Underwriters at Lloyd’s, London (2007), 449 Mass. 621, 87 N.E. 2d 418

facts:

The appellant law firm KSL, and the individual appellant lawyer K (jointly, “the appellants”) were insured under three professional liability policies. The limit of liability under the primary policy, the LawPro Policy, was $ 1 million per claim. The limit of liability under the First Excess Policy was $ 9 million per claim. The Second Excess Policy was issued by the respondents and did not have to respond until the limits of the LawPro and First Excess Policies had been exhausted.

The appellants represented a client in an action in which the client sought to enforce a right of first refusal over a particular property (the “Property Action”). One of the defendants in the Property Action advised the appellants that it intended to move to stay the action on the basis that a settlement entered into by the appellants’ client and another defendant had not been immediately disclosed to it. The appellants understood that if the defendant was successful in seeking a stay of the Property Action, their client would have a professional liability claim against them (the “Claim”).

The appellants provided notice of the Claim to LawPro and subsequently asked their broker to report the Claim to their excess insurers, including the respondents. The broker reported the Claim to Lloyd’s under the First Excess Policy. However, the appellants failed to report the Claim to the respondents under the Second Excess Policy until almost three years after the appellants became aware of the claim and more than two years after the Second Excess Policy had expired.

As a result of the failure of the appellants to report the Claim to the respondents during the policy period of the Second Excess Policy, the respondents denied coverage for the Claim. The appellants brought an application for a declaration that the respondents were responsible for coverage of the Claim. The application was dismissed. The appellants appealed this decision.

issues:

1. Did the application judge err in finding that relief from forfeiture was not available to the appellants?
2. If relief from forfeiture was available, did the application judge err in finding that it should not be granted?

holding:

Appeal dismissed.

reasoning:

1. No. The application judge was correct in finding that relief from forfeiture was not available to the appellants because reporting during the policy period was a condition precedent to coverage under the Second Excess Policy. The appellants failed to report the claim to the respondent during the policy period. Because reporting the claim during the policy period was a condition precedent to coverage, coverage was not triggered. This was a breach of a condition precedent to coverage and not imperfect compliance with policy terms after the triggering of coverage.

2. No. The Court held that in light of the conclusion that relief from forfeiture was not available, it is not necessary to consider the application judge’s conclusion in the alternative that he would not have exercised his discretion to grant relief from forfeiture.

Morrissey v. Wawanesa Insurance Company, 2024 ONCA 602

[Lauwers, van Rensburg and Thorburn JJ.A.]

Counsel:

N. de Koning, for the appellant

A. Lennox, for the respondent Wawanesa Insurance Company

D. Lee and V. Crystal, for the respondent Licence Appeal Tribunal

Keywords: Insurance Law, Statutory Accident Benefits, Attendant Care Benefits, Statutory Interpretation, Insurance Act, R.S.O. 1990, c. I.8, s. 268, O. Reg. 403/96, s. 16(2), Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996, O. Reg. 34/10, s. 3(7)(e) and s. 42(5), Statutory Accident Benefits Schedule – Accidents on or After September 1, 2010, Belair Insurance Co. v. McMichael (2007), 86 O.R. (3d) 68 (Div. Ct.), Monks v. ING Insurance Company of Canada, 2008 ONCA 269, Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265, T.K. v. Unica Insurance Inc., 2017 CanLII 15835 (Ont. LAT), J.M. v. Certas Home and Auto Insurance Company, 2018 CanLII 132564 (Ont. LAT), Motor Vehicle Accident Claim Fund v. Barnes, [2017] O.F.S.C.D. No. 99 (FSCO App.), Barnes v. Motor Vehicle Accident Claims Fund, 2019 ONSC 1782, Beattie v. National Frontier Insurance Co. (2003), 68 O.R. (3d) 60 (C.A.), Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Abarca v. Vargas, 2015 ONCA 4, Smith v. Co-operators General Insurance Co., 2002 SCC 30, Meyer v. Bright (1993), 15 O.R. (3d) 129 (C.A.), T.N. v. Personal Insurance Company of Canada, 2012 ONFSCDRS 119 (FSCO Arb.), Kelly v. Guarantee Company of North America, 2014 ONFSCDRS 128 (FSCO Arb.), M.G. v. Economical Mutual Insurance Company, 2014 ONFSCDRS 119 (FSCO App.), C.W. v. Jevco Insurance Company, 2019 CanLII 22200 (Ont. LAT), E.E. v. Aviva Insurance Company, 2018 CanLII 81909 (Ont. LAT), G.J. v. Coachman Insurance Company, 2018 CanLII 81882 (Ont. LAT)

facts:

The appellant was catastrophically injured in a motor vehicle accident in 2000. He sought increased attendant care benefits (ACBs) from Wawanesa from October 2015 onward, claiming that additional expenses were incurred, Wawanesa refused the claim, which prompted the appellant to seek dispute resolution through the Licence Appeal Tribunal (LAT).

The LAT partially granted his claim but denied retroactive benefits prior to April 2018. The Divisional Court partially upheld the LAT’s decision, affirming the denial of retroactive benefits. They applied a definition of “incurred” expenses from the 2010 SAB Schedule. The appellant appealed and argued that the 1996 Schedule was the schedule under which his benefits should have been determined and that, under the 1996 Schedule, “incurred” was defined in a less restrictive manner.

issues:

1. Based on s. 42(5) of the 2010 Schedule, can an insurer refuse a retroactive claim for ACBs if the insured does not provide an explanation for the delay in submitting an assessment (Form 1)?
2. Does the definition of “incurred” under s. 3(7)(e) of the 2010 Schedule apply to the appellant’s claim for ACBs? Or does the broader interpretation under the 1996 Schedule, which does not require actual provision of services or proof of economic loss, apply?

holding:

Appeal allowed.

reasoning:

On a preliminary note, the Court noted that a determination of the appeal required the interpretation of dense and difficult text in a changing and complex statutory scheme. The task of interpretation requires the court to consider the text of the legislation, the context within which it operates, and the particular purpose of the provisions at issue. The context in this case included that automobile insurance is well understood to be a form of consumer protection. In addition, it was worth recalling that the system of compensation for injuries suffered in motor vehicle accidents in Ontario is a hybrid of no-fault insurance coverage and traditional tort law. While the ability to sue for injuries is limited, injured parties have access to no-fault benefits. Given that the appeal was concerned exclusively with questions of statutory interpretation, the standard of review was correctness: Vavilov, at para. 37.

1. No. The Adjudicator and the Divisional Court erred in rejecting the appellant’s claim for retroactive ACBs on the basis that he had not provided any explanation for the delay in submitting a Form 1. When the relevant provisions of the Schedules are considered, it is clear that successive Form 1s can be submitted by an insured; that s. 42(5) does not have the meaning attributed by Wawanesa, but simply permits an insurer to begin paying ACBs before a Form 1 has been submitted; and that there is accordingly no basis in s. 42 for an insurer to require an insured to establish urgency, impossibility or impracticability as a condition of paying a retroactive claim for ACBs.

Additionally, while s. 16 of the 1996 Schedule and s. 42 of the 2010 Schedule require an application for ACBs to be initiated through a Form 1, neither section prescribes a time period in which a Form 1 must be submitted, and there is nothing in either section that states that a Form 1 cannot be submitted in respect of a period that has already passed, or that successive Form 1s are prohibited. The Adjudicator and the Divisional Court erred in concluding that a retroactive Form 1 can be submitted and considered only where there is evidence of urgency of a need and/or impossibility or impracticability of compliance with the requirements of s. 42(5). The TK v. Unica line of cases improperly elevated the circumstances of urgency or impracticability to a rule. Instead, the Court preferred the application of these statutory provisions as set out in Kelly v. Guarantee and TN v. Personal Insurance.

2. 1996 Schedule applies. In the 2010 Schedule, expenses must be for services provided by a qualified person who has sustained an economic loss. On the other side, the 1996 Schedule did not define “incurred” and case law interpreted it broadly, allowing for payment without evidence of actual service provision or economic loss, provided said services were necessary and that the expense could be identified with certainty. The appellant argued that the Divisional Court incorrectly applied the 2010 definition when the accident occurred a full decade prior to that Schedule coming into effect, in 2000.

The Court agreed. It noted that the transitional provisions of the Schedules indicated the 2010 definition could not apply to this claim. Provisions from s. 3 of 1996 and s. 2 of 2010 specify that while benefits are to be paid under the 2010 Schedule, the amount is determined under the 1996 Schedule. The provisions of the 1996 Schedule showing the entitlement to benefits continue to apply to accidents occurring before 2010.

In conclusion, the Court found that the appellant’s claim should have been governed by the more expansive definition of “incurred” from the 1996 Schedule. This definition does not require evidence of economic loss or actual service provision. The Divisional Court and Adjudicator erroneously relied on s. 268 of the Insurance Act and Barnes, which were not relevant.

SHORT CIVIL DECISIONS

Konstan v. Berkovits , 2024 ONCA 604

[Miller, Copeland and Gomery JJ.A]

Counsel:

S. Secter, R. Amoah, D. Naymark, for JB, 1539058 Ontario Inc. and 2221652 Ontario Inc. on all matters under appeal

M. Solomon and C. Wetmore, for HG and 2102503 Ontario Inc. on all matters under appeal

M. Valitutti, for the respondent, MK

Keywords: Costs

Yan v. Pritchard-Sobhani , 2024 ONCA 612

[Rouleau, Benotto and Thorburn JJ.A.]

Counsel:

N.X.Y.Y. acting in person

C. Zhen, for the respondents J.E.P-S, X.M.Y., I.C., D.S., J.Q.Z., M.C., C.N.L., A.Z., S.C., M.C., I.N., V.W., P.H., T.S., R.C., C.Y., F.O. and College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (CTCMPAO)

T. Bain, for the respondent R.C.D.

Keywords: Administrative Law, Regulated Professions, Chinese Medicine Practitioners and Acupuncturists, Professional Discipline, Torts, Defamation, Civil Procedure, Vexatious Litigation, Frivolous, Vexatious, Abuse of Process, Collateral Attack, Rules of Civil Procedure, r. 2.1.01(1). 2.1.01(3) and 63.01(1), Amikwabi v. Pope Francis, 2022 ONCA 236

Royal Bank of Canada v. Everest Group Inc., 2024 ONCA 611

[Roberts, Miller and Gomery JJ.A.]

Counsel:

A. Boudreau, D. Hamson and M. A. Robles, for the appellants/respondents by way of cross appeal Versatile Holdings Group Inc., Everest Group Inc. and Premium Host Inc.

J. Nasseri and G. Vance, for the respondents/appellants by way of cross appeal Paramount Franchise Group Inc., Paramount Franchise Inc., Fakih Group Inc., 2302733 Ontario Inc., M.F. and H.G.

Keywords: Costs

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.