In 2025, the Ontario Court of Appeal and Superior Court of Justice released several important decisions relevant to personal injury law. Three key decisions are discussed below, clarifying the law on the right to a jury in civil trials, the interplay between underinsured motorist coverage and excess insurance policies, and the use of partial settlement agreements to encourage settlement.
1. The right to a jury in a civil trial is to be balanced with overarching right of all parties to a fair trial
The Ontario Court of Appeal decision, Taylor v. Zents, 2025 ONCA 662, was an appeal from a trial decision released early last year. The Plaintiff in this case was injured in a motor vehicle accident in 2015 and brought a legal action in the Superior Court of Justice seeking damages. He won at trial and was awarded sizable damages for pain and suffering, past and future income loss, and future care costs.
At trial, during a cross-examination of the Plaintiff’s expert, the Defendant’s counsel suggested that the Plaintiff had fabricated a key symptom – the discharge of fluid from the Plaintiff’s ear. The expert had based his opinion on this symptom, along with other symptoms presented to him by the Plaintiff. The trial judge identified this line of questioning as a breach of the rule in Browne v. Dunn, as the possible fabrication of this symptom had not been put to the Plaintiff under cross-examination. On a motion from the Plaintiff, this led to an order dispensing with the jury. The Defendant then appealed on this point.
Ultimately, the Court of Appeal upheld the trial judge’s identification of a breach of Browne v. Dunn, finding it unfair that the Plaintiff’s credibility had been called into question without affording him the opportunity to respond. Further, the Court deferred to the trial judge’s view that this breach had irreversibly tainted the jury. The trial judge had observed first-hand that during the cross-examination, “the courtroom was so quiet a pin drop would have sounded deafening. The jury was hanging on Dr. Hamilton’s every word at this stage. Her answer prompted an audible reaction from the jury. There was no walking back from this moment. The horse was already out of the barn.”[1]
The Court of Appeal clarified that the right to a civil trial by jury is to be balanced against the overarching right of all parties to a fair trial. The Court stated, “The right to a trial by jury may be a fundamental and substantive right, but it is not absolute. It is subject to the discretion of the trial judge, so long as it is supported by reasoned justification.”[2] The Court further affirmed the trial judge’s refusal to employ merely corrective measures, such as calling back the Plaintiff for further cross-examination.
The Court of Appeal went on to dismiss the rest of the appeal, which was concerned with the qualification of the Plaintiff’s medical expert and the trial judge’s apprehension of the medical evidence in quantifying damages.
In addition to affirming the overarching primacy of fairness in civil trials, this decision stresses the need for lawyers to be familiar with the rules of evidence at trial and to comply with them with precision.
2. Clarification on relationship between underinsured motorist coverage and coverage through a PLUP policy
In the Superior Court of Justice case, Hugo v. McNorgan, 2025 ONSC 4739, the Court was asked to determine whether the Defendants’ personal liability umbrella policy (“PLUP”) was a “motor vehicle liability policy” under the OPCF 44R Family Protection Coverage endorsement.
This case arose from a motor vehicle accident in which the Defendant motor vehicle operator failed to stop at a red light, drove through an intersection, climbed the curb, and struck several young members of the 120 London Brownies. There were multiple plaintiffs and eight actions commenced in connection with this accident. In seven of these actions, the plaintiffs had sued their own insurers under the OPCF 44R endorsement, which provides liability coverage where there are underinsured Defendants in a civil motor vehicle case.
The Defendants held a standard Ontario Automobile Policy (the “OAP”) in the amount of $300,000, and a PLUP in the amount of $2,000,000, such that the total available coverage for this accident would be $2.3 million.
The Court found that the PLUP was not motor vehicle liability policy for the purpose of determining the underinsurers’ maximum liability coverage in this case. In this case, this meant that the Defendants’ total liability coverage under the OAP was $300,000, rendering them underinsured. This had the effect of requiring the insurer Defendants to remain in the action. A determinative factor driving this finding was that the PLUP expressly provided excess insurance, kicking in only if the available funding under the OAP policy was completely exhausted.
At the same time, to determine the entitlement of each eligible claimant, the Court stated that the amount to be paid under the endorsement must be in excess of any amount received from any source (including, in this case, the PLUP), and in excess to amounts available from various sources, including the insurers of the inadequately insured motorist.
As a result, the calculation of entitlement for each eligible plaintiff was therefore to be determined by calculating the difference between the shortfall of their damages (less their proportionate share of the aggregate limits), and the limit of their OPCF 44R policy.[3]
3. Pierringer Agreements upheld as useful tools to encourage settlement
In Cadieux v. Cadieux, 2025 ONCA 405, the Court of Appeal for Ontario was tasked with considering whether to uphold a Pierringer Agreement entered by the Plaintiff and one settling Defendant. As one of the remaining, non-settling Defendants was impecunious, the other remaining Defendants faced the risk of paying more in damages than their proportionate share of liability.
The Court of Appeal upheld the Pierringer Agreement. This decision was grounded in the importance of encouraging settlement, particularly in complex, multi-party litigation, noting that one Pierringer Agreement will often encourage “cascading settlements,” an outcome in the public interest.
The Court of Appeal rejected the Appellants’ argument that it would be prejudicial for the Defendants to bear extra risk because of an insolvent or impecunious co-tortfeasor. The Court explained that this risk is built into the statutory language of the Ontario Negligence Act, which provides for liability between co-tortfeasors to be liable to each other with respect to their degree of fault. The Court of Appeal affirmed “the longstanding and well-established principle that the risk of an insolvent or impecunious tortfeasor falls onto other joint tortfeasors (and not the victim), as the necessary implication of a statutory requirement.”[4]
Separately from the Cadieux case, Pierringer Agreements were incorporated formally into the Ontario Rules of Civil Procedure in June of this year, with the addition of “partial settlement agreements” to Rule 49. These new rules largely codify existing requirements. One new requirement is the completion of Form 49E, which must be filled out, served on the non-settling Defendants, and filed as soon as possible after disclosing the terms of the Pierringer Agreement to the non-settling Defendants.
This article is sponsored by Thomson Rogers LLP