Ontario Civil

Civil Procedure

Settlement funds had to be repaid and mediation must fail before court proceeding commenced

Plaintiff was injured in single motor vehicle accident. Defendant insured plaintiff under no-fault policy for accident benefits. Plaintiff applied for statutory accident benefits, which defendant paid. Defendant then terminated plaintiff’s income replacement benefits. Plaintiff signed full and final release that released defendant from any obligation to pay accident benefits to plaintiff. In exchange, defendant made lump sum payment of $3,000 to plaintiff. Plaintiff claimed that release was nullity and defendant breached its duty of good faith and caused her mental distress by unlawfully terminating benefits. Plaintiff brought action. Defendant brought motion for summary judgment on basis that claim was statute-barred. Plaintiff brought motion for partial summary judgment. Motion judge found that plaintiff’s claim was subject to mandatory mediation and she was obligated to repay settlement funds and proceed to mediation before she could commence litigation. Plaintiff’s motion for summary judgment was dismissed and defendant’s motion was allowed and action was dismissed. Plaintiff appealed. Appeal dismissed. Settlement funds had to be repaid and mediation must fail before court proceeding could be commenced. Plaintiff had not fulfilled statutory preconditions to commencement of court proceeding. Claims asserted by plaintiff all flowed from denial of benefits and there were no independent causes of action. Motion judge did not make any error of law in analysis and there was no basis to interfere with decision to grant defendant’s motion for summary judgment. All of plaintiff’s claims were properly dismissed on defendant’s summary judgment motion.

Madder v. South Easthope Mutual Insurance Co. (Oct. 21, 2014, Ont. C.A., C. William Hourigan J.A., K.M. Weiler J.A., and G. Pardu J.A., File No. CA C57494) Decision at 230 A.C.W.S. (3d) 393 was affirmed.  246 A.C.W.S. (3d) 81

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