Ontario Court Of Appeal Summaries (July 24 – 28, 2017)

Good afternoon,

Following are the summaries for this week's civil decisions of the Court of Appeal for Ontario. There were few decisions and nothing particularly noteworthy. Topics covered include the interpretation of the scope of a personal guarantee of corporate debt, agreements of purchase and sale of land, SABs, adjournments and frivolous and vexatious claims.

Have a great weekend.

Civil Decisions

Dittman v. Aviva Insurance Company of Canada, 2017 ONCA 617

[Sharpe, Lauwers and Roberts JJ.A.]

Counsel:

K. Schultz and C. Macauley, for the appellant

M. Gauthier and J. Ross, for the respondent

Keywords: Insurance Law, Statutory Accident Benefits Schedule, s 3

Facts:

The respondent sustained serious burns to her lower body when the entire contents of a coffee cup she ordered at a McDonald's drive-through spilled as she attempted to transfer the cup from the drive-through window to the cup holder in her vehicle. The motion judge determined that the respondent was impaired as a result of an accident as defined in the Statutory Accident Benefits Schedule and accordingly that she was entitled to statutory accident benefits in accordance with her insurance policy.

Issues:

(1) Did the motion judge err in his application of the Statutory Accident Benefits causation test?

Holding: Appeal Dismissed.

Reasoning:

(1) No. The court held that the motion judge had properly applied the SABs causation test. The use and operation of the respondent's vehicle was a direct cause of the respondent's injuries. The court held that these findings were justified on the evidence and met the requirements of the direct causation test prescribed in the SABs regulation. Moreover, the restraint of the seatbelt had increased the exposure of the respondent to the scalding liquid and thereby increased the level of her impairment. The court held that the issue is not what the triggering event of the incident was, but rather, what caused the impairment.

Lala v. Basman Smith LLP, 2017 ONCA 614

[Sharpe, Lauwers and Roberts JJ.A.]

Counsel:

K. W. Fisher, for the appellant

A. Pantel, for the respondent

Keywords: Solicitor and Client, Assessment of Accounts, Procedural Fairness, Adjournments, Igbinosun v Law Society of Upper Canada, 2009 ONCA 484

Facts:

The appellant law firm appealed an order of the motion judge setting aside a report and certificate of assessment. The motion judge had ruled that the assessment officer had erred by failing to grant an adjournment when the respondent client did not attend the first day of a scheduled five-day hearing due to a communication error by court staff and that, as a result, the officer deprived the respondent of her right to a fair hearing.

The respondent had initiated the assessment in February 2014 to question the appellant's account. At a preliminary appointment, a mediation was scheduled at the respondent's request. The respondent was ordered to provide the appellant with a list of her issues or concerns regarding the account at least 30 days prior to the mediation. She failed to do so, and she cancelled the mediation one day prior to its schedule date. The assessment office and the appellant made several unsuccessful attempts to contact the respondent to schedule a hearing date. Eventually, in February 2015, the office scheduled a five-day assessment hearing, which due to a backlog was scheduled for one year later, on March 14, 2016. About five days before the assessment hearing was to commence, respondent's counsel called the assessment office. In her reasons, the assessment officer indicated that she had checked with the staff and determined that respondent's counsel was told that the assessment would "likely not proceed" on the scheduled date. Respondent's counsel insisted that he was told that the assessment would not proceed. Due to this miscommunication, on the first day of the hearing, neither the respondent nor her counsel attended. The assessment office spoke to the respondent in the afternoon regarding the miscommunication and the remainder of the first day of hearing was adjourned. The following day, respondent's counsel attended but the respondent did not. The assessment officer offered to make accommodations but counsel refused to discuss it and insisted that the matter be adjourned. The assessment officer refused, and respondent's counsel left the hearing. On March 18, 2016, the assessment officer issued oral reasons approving the appellant's accounts and the report and certificate of assessment.

On March 29, 2016, respondent's counsel issued and served a notice of motion to oppose confirmation of the report and certificate of assessment. The appellant wrote to respondent's counsel requesting that the motion be heard at an earlier date and that respondent's counsel provide materials in support of the motion. No materials were provided and that motion was not heard. The respondent then retained new counsel and, on October 28, 2016, her new counsel issued a new notice of motion to oppose confirmation of the report and certificate of assessment. The motion to oppose confirmation was finally heard on November 17, 2016, and the motion judge...

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