COLLATERAL BENEFITS – Court
determined amount of collateral
benefits received by plaintiff that
should be deducted from an award of
damages at trial.
Application by defendant S Co. to
determine credits due regarding collateral benefits received by plaintiff. Plaintiff was injured in a motor vehicle accident on April 26, 2003. Defendant T
was the driver and defendant B owned
the car. The car had been stolen and the
driver was uninsured so plaintiff added
her own insurer, S Co., as a co-defend-ant pursuant to the uninsured motorist
coverage of the insurance policy. T was
never located to be served so the action
was discontinued against him. Plaintiff
settled with B and her insurer for
$85,000, consisting of $50,000 for the
claim, $15,000 for prejudgment interest
and $20,000 for costs. The tort action
against S Co. proceeded to a jury trial.
Plaintiff was awarded $85,000 in general damages, past income loss of
$161,679 and future income loss of
$25,000. Due to her inability to work
because of injuries sustained in the accident plaintiff had received $35,374 in
income replacement benefits from her
accident benefits insurer. After the
insurer terminated the benefits plaintiff
commenced an arbitration proceeding
against the insurer. That action was
settled for $120,000. Plaintiff received
$80,040 from her lawyer after deductions for legal costs and disbursements.
She was also covered through her workplace for short term and long term disability benefits. She received $44,530 in
such benefits, which amounted to
$33,665 after tax, until they were terminated by the insurer. Plaintiff sued
the insurer and agreed to settle the
claim for $125,000, for which she
received $95,000 after the payment of
costs and disbursements.
HELD: Application allowed. S Co.
was entitled to a credit of $37,361 for
the disability benefits received by plaintiff. S Co. was not entitled to a credit for
settlement of the disability benefits
claim against the insurer because it fell
outside the scope of the legislation, since
it was not a payment under an income
continuation benefit plan but rather was
a payment to settle a legal obligation
that one party sought to enforce by litigation. Regarding the arbitration settlement, S Co.’s claim that it was entitled to
a credit to the entire $120,000 was
rejected. S Co. was only entitled to a
credit of $80,040, which was the actual
payment that plaintiff received after
legal expenses were deducted.
Anand v. Belanger, [2010] O.J. No.
4064, Ont. S.C.J., Stinson J., Sept. 28/10.
Digest No. 3025-006 (Approx. 8 pp.)
FRAUD – Plaintiff by counterclaim
was awarded damages of $650,000
and punitive damages of $50,000 for
fraudulent misrepresentations on
investment opportunities.
Plaintiff by counterclaim R sought
damages for fraud against P Inc.,
defendant by counterclaim. P Inc.’s
action against R had been dismissed for
delay. The counterclaim proceeded to an
undefended trial. R claimed that he met
the principal of P Inc., JI, in 2004, and
JI advised him of an investment oppor-
tunity. R gave JI cheques totalling
$650,000 for investments recom-
mended by JI. R never received any
returns on his investments from JI. He
later discovered that his money had
never been invested.
ESTOPPEL
ISSUE ESTOPPEL – Appellant’s
claims against defendants were prop-
erly struck as res judicata because they
had been canvassed in other proceed-
ings in which appellant participated.
Appeal from a decision striking
appellant’s statement of claim. Appellant had been arrested for causing a
disturbance during a trial. He filed a
complaint with the Police Services
Board, alleging misconduct on the part
of the two arresting officers. He claimed
that his arrest was unlawful and that
unnecessary force was used. The complaint led to disciplinary proceedings in
which the hearing officer found appellant’s arrest was lawful and no unnecessary force was used. The hearing officer
relied on independent witnesses’ testimony and a videotape of the arrest. The
Civilian Commission on Police Services
overturned the hearing officer’s decision
on the basis that he erred in failing to
determine whether the arresting officers
had the lawful authority to arrest appellant in a courtroom without a direction
from the presiding justice to do so. The
Commission agreed that no unnecessary
force was used. The Divisional Court
restored the hearing officer’s decision.
Appellant then commenced a civil action
alleging unlawful arrest, unnecessary
use of force, false imprisonment and
malicious prosecution. A motions judge
determined the action raised the same
questions as the disciplinary proceedings and subsequent appeals and
involved the same parties. The judge
applied issue estoppel and struck appellant’s statement of claim as res judicata.
HELD: Appeal dismissed. The issues
raised in the civil action were the same as
those canvassed by the hearing officer,
the Commission and the Divisional
Court. The parties were also the same.
Appellant was a full party to the disciplinary proceedings at all levels. Although
appellant had not previously alleged he
was falsely imprisoned or maliciously
prosecuted, these claims could not stand
where it had already been determined
that his arrest was lawful.
Penner v. Niagara (Regional Muni-
cipality) Police Services Board,
[2010] O.J. No. 4046, Ont. C.A., per
Laskin J.A. (Moldaver and Armstrong
JJ.A. concurring), Sept. 27/10. Digest
No. 3025-008 (Approx. 10 pp.)
PROPERTY – Appellate court set
aside summary decision dismissing
wife’s claim for equalization of family
property and seeking to set aside two
separation agreements.
Appeal by the wife from summary judgment dismissing her claim for equalization
of the family property and to set aside two
separation agreements. The motion for
summary judgment was granted on the
basis that the limitation period for claiming
equalization had expired four months earlier. The parties separated in 2004 after a
20-year marriage and entered into a settlement agreement. The agreement purported
to give the husband the matrimonial home
and the family businesses. The wife claimed
she received US$100,000 as a lump sum
payment for spousal support. She obtained
no independent legal advice, did not read
the agreement, and the husband did not
make full financial disclosure. She claimed
that she did not read English and that the
document was not translated into Arabic.
The parties were divorced in 2006 and
entered into a final agreement in 2008. The
wife claimed that she signed that agreement
under duress without proper legal advice
and that she did not understand the agreement. Pursuant to the agreement, the wife
was paid $150,000 in 2004 for equalization
of the family property. In 2009 the wife
applied for equalization of property and to
set aside the 2004 and 2008 agreements.
HELD: Appeal allowed. The motion for
summary judgment was dismissed. The
motion judge erred in failing to grant an
extension of time to pursue the claim for
equalization of net family property. The
judge did not properly address the question of apparent grounds for relief and
whether the wife’s delay had been incurred
in good faith. The wife’s assertion that she
did not know about the divorce until 2009
was uncontradicted and seemed to have
been accepted by the judge. She immediately applied for relief under the Family
Law Act (Ont.). There was no prejudice to
the husband. It could be inferred that he
knew, within the limitation period, of the
case and the nature of the claims now
being made against him.
El Feky v. Tohamy, [2010] O.J. No.
4165, Ont. C.A., per Rosenberg J.A.
(Armstrong and Juriansz JJ.A. concur-
ring), Oct. 5/10. Digest No. 3025-009
(Approx. 11 pp.)
SUPPORT – Judge did not err in
imputing income to appellant of
$225,000 in making an interim order
for support.
Appeal from the amount of income
attributed to appellant for the purpose of
calculating his interim spousal and child
support obligations. The parties were in a
common law relationship from 2003 to
2009. They had one child who resided primarily with respondent. Appellant was a
self-employed entrepreneur with interests in
numerous businesses. Respondent was a
stay-at-home parent from the time she got
pregnant in 2004. Before that, she worked
part-time as a hair stylist. She had no income
at the time of the order. Financial disclosure
was not complete at the time of the order.
Respondent argued for the imputation of
$300,000 in annual income to appellant,
pointing to past family expenditures and
large deposits appellant made to his bank
account between July 2009 and March
2010. Appellant argued that the figure was a
gross exaggeration of his income, pointing to
his 2009 tax return showing income of
$103,280. The judge imputed $225,000 in
annual income to appellant, a figure the
judge considered conservative.
HELD: Appeal dismissed. The judge had
a discretionary power to impute income to
appellant. Given the lack of full disclosure of
appellant’s financial resources, and the fact
that this was an interim order only, the
court would not interfere with the judge’s
decision. It was based on a reasonable estimate of appellant’s income and respondent’s
needs, means and circumstances.
Li v. Wong, [2010] A.J. No. 1151, Alta.
C.A., per Watson J.A. (Berger and Bielby
JJ.A. concurring), Oct. 8/10. Digest No.
3025-010 (Approx. 4 pp.)
INSURANCE
(MOTOR VEHICLE)
STATUTORY ACCIDENT BENEFITS
– Court found that a sole proprietor could
make a vehicle available to himself under
subs. 66(1) of the Statutory Accident Bene-
fits Schedule (Ont.) for his regular use.
Appeal from the decision of an arbitrator
that found appellant insurer responsible to
pay statutory accident benefits to H, who
was injured in a motor vehicle accident. The
arbitrator also found that respondent
insurer was not responsible to pay such
benefits. H was injured in a single tractor-trailer motor vehicle accident in February
2008 in Pennsylvania. At the time of the
accident H worked as a self-employed
owner-operator for T Ltd. He owned the
tractor that he operated. The tractor was
plated in the name of T Ltd., which obtained
vehicle insurance on it from appellant. H
was not a named insured under the policy.
At the time of the accident H was the
named insured on an automobile insurance
policy issued by respondent for an automobile. After the accident H applied to
appellant for accident benefits. Appellant
served respondent with a Notice of Dispute
Between Insurers. Arbitration ensued. The
arbitrator stated that the legislative intent of
subs. 66(1) of the Statutory Accident Benefits Schedule was to place the truck insurer
in priority to H’s private automobile insurer
where the accident involved the truck in the
course of the commercial arrangement
between H and T Ltd.
HELD: Appeal dismissed. The applicable standard of review was correctness.
The arbitrator found that the tractor was
made available to H for his regular use by
his sole proprietorship. The arbitrator did
not err in reaching that conclusion. There
was no reason under subs. 66(1) that a sole
proprietor could not make a vehicle available to himself. The court refused to follow
case law that disqualified a sole proprietor
from making a vehicle available to himself
and considered it to be wrongly decided. H
was therefore deemed to be the named
insured under appellant’s policy. The same
conclusion would result if a joint venture
had made the vehicle available to H.
Kingsway General Insurance Co. v.
Gore Mutual Insurance Co., [2010]
O.J. No. 4073, Ont. S.C.J., Perell J.,
Sept. 27/10. Digest No. 3025-011
(Approx. 9 pp.)
STATUTORY ACCIDENT BENE-
FITS – There was no reason under
subs. 66(1) of the Statutory Accident
