In November 2017, J.E. was walking on a sidewalk in Waterloo when he was injured by a bus stop sign that was protruding into his path. He claimed damages for injuries including concussion, depression and anxiety. In 2023, J.E. was subsequently hospitalized, diagnosed with and treated for schizophrenia.
Legal fees incurred in obtaining a guardianship order for persons deemed catastrophically impaired may or may not be considered “rehabilitative benefits”.
The LAT held that the golf cart is not an “automobile” because the subject accident did not take place on a “common and public driveway”. As such, the applicant was prohibited from launching an accident benefits claim.
This decision reinforces that the Licence Appeal Tribunal will not award costs except in cases of frivolous, vexatious or bad faith conduct. In particular, the Tribunal held that the threshold for awarding costs is high and cost awards are not meant to compensate the parties for the cost of their involvement in claims.
After exhausting the $3,500 monetary limit available under the Minor Injury Guidelines, Aviva denied his claims for further treatment, arguing that the chronic pain that the Applicant developed does not entitle him to any additional benefits beyond the MIG limits.
The Defendants succeeded on a motion for an order requiring that the Plaintiffs appoint an appraiser pursuant to s. 128(5) of the Insurance Act.
A Reconsideration Decision, in which the applicant requested for the Initial Decision to be set aside, and for a new hearing before a different adjudicator
The bleak future of MVA general damage awards in Ontario.
The Applicant was injured on or about May 27, 2016, and sought benefits pursuant to O. Reg. 34/10 effective September 1, 2010. The Respondent, Security National Insurance refused to pay for specific benefits, including an award pursuant to Regulation 664, interest, and costs…
In this case, the Applicant was the seat-belted driver of a vehicle that struck a median, spun out of control, struck another vehicle and came to rest after hitting the guardrail in July, 2010. The Applicant submitted an application for catastrophic determination, which was denied by the insurer…
After an action has been set down for trial, leave to conduct a further examination for discovery will be granted when there has been a “substantial or unexpected change in circumstances.” The plaintiff’s deterioration in health and subsequent surgery, if reasonable extensions of injuries present prior to setting the action down, will not satisfy this test.
This decision relates to a summary judgment motion, brought by the defendant. Justice Braid notes that if the matter is to be resolved by way of summary judgment
This Master’s decision holds that a plaintiff must disclose the existence, but not particulars, of adverse costs protection at examination for discovery.
Summary judgment motions on the issue of liability are not appropriate where the credibility of witnesses are important, there is insufficient evidence on the record to evaluate credibility and a mini-trial is not appropriate in the circumstances of the case.
The Minor Injury Guideline is Found Unconstitutional
This is a motion for summary judgment by the Defendant on liability in an action arising from a motor vehicle collision – the Court provides useful comments for cross-examinations on affidavits filed supporting the motion
This four-week virtual judge-alone trial involved a plaintiff who sustained a brain injury as a result of being struck in the head with a bocce ball while sitting on a patio at a local public house.
An example of inadmissible hearsay used to corroborate physical evidence or independent witness evidence requirements under an OPCF 44R Family Protection Endorsement.
In what might be the first case to address the new Rule 53.03, the Court made it clear that late filing of expert reports will no longer be tolerated.
This recent family law decision that has gained much attention, as it establishes the new common law tort of “family violence”.
Ontario Court of Appeal refuses to recognize the tort of family violence.
In the recent case of Ahmed v. Aviva Insurance Company, Aviva Insurance Company proceeded with a motion to dismiss an application as abandoned, despite previous counsel’s death and the applicant’s personal barriers, and was found by Vice Chair Maedel to have acted in bad faith. In the result, the motion was dismissed and Aviva was ordered to pay costs to the applicant…
The Court dismisses the Defendants’ motion to strike the paragraphs in the amended Statement of Claim which assert a claim under the Fraudulent Conveyance Act.
After Mediation the Defence lawyer took out a final Dismissal Order without the authorization of Plaintiff’s counsel and before settlement funds were received. All attempts to contact the Defence lawyer to demand an explanation were ignored.
This decision arises from a motion to remove Counsel of Record, Brennan Kahler and Gary Will, for the minor Plaintiff due to conflict of interest as they had previously also represented his parents whom the Defendants had counterclaimed against.
Where the party to be examined resides outside of Ontario, the test for determining the location of the examination for discovery is what is just and convenient for all parties based on the circumstances of the case.
This case examines a loss of competitive advantage claim and the test to determine if a question should be put to the jury.
In this decision, the Court of Appeal upheld a Divisional Court’s reasoning regarding limitation periods for applying for FSCO mediation.
Review of the law on the interpretation of exclusion clauses.
Released September 3, 2015 | Full Decision Judge orders summary judgment motion to proceed with viva voce evidence This was a personal injury claim arising from a car accident. The plaintiff suffered catastrophic injuries. He claimed that an unidentified vehicle caused the accident and fled the scene. He then sued his own insurance company for unidentified motorist coverage. The insurer announced its intention to bring a …
When a solicitor is discharged by the client, the solicitor is entitled to a charging order where the property was preserved or recovered while he or she was acting on the client’s behalf…
This summary judgement motion concerned issues of witness credibility and the evidentiary requirements of proving entitlement to the OPCF-44R Family Protection Endorsement
Further clarity about limitation periods in CAT cases….
Limitation period starts to run not from the date of CAT designation, but from the date benefits claimed for, based on that designation, are denied.
Released September 23, 2015 | Full Decision Justice Dunphy ordered that three insurance companies had the duty to defend. The Application was brought by Aquatech and one of its insurers, Aviva (provider of the automobile policy), against two of Aquatech’s liability insurers: Lombard – provided a $3 million Comprehensive General Liability Policy; ACE INA – provided a $1 million Pollution Incident Liability Insurance The purpose …
Plaintiff’s Appeal From Unsuccessful Motion To Add Defendants 6 Years After Collision Statute-Barred: A Review Of Limitation Periods
The Legal Landscape Is Changing; Examination For Discovery Ordered To Proceed By Way Of Videoconference.
Following a jury Trial in which the Plaintiff recovered $68,250 in damages, Justice Salmers ruled on the quantum of costs and disbursements to be paid by the Defendant. Specifically, the Court commented on whether the Plaintiffs’ disbursement in purchasing adverse costs insurance ought to be payable by the Defendant.
In this case, the Plaintiff appealed the majority decision of the Ontario Court of Appeal and was granted leave in May 2020. The case was argued before the Supreme Court of Canada (SCC) on January 18, 2021. The SCC released their decision from the bench on the day of argument, siding with the plaintiff and adopting the dissenting reasons of Justice van Rensburg.
Released July 7, 2015 | Full Decision This decision by Arbitrator Jeffrey Shapiro makes clear that a diagnosis of chronic pain syndrome can remove an insured from the Minor Injury Guideline (the “MIG”). The arbitration concerned a motor vehicle accident which occurred on May 5, 2012. The insured sustained soft tissue and psychological injuries and was placed in the MIG. After depleting the maximum funding …
In a recent decision out of British Columbia, the Court ordered a punitive damage award of $350,000 against ICBC. The decision of Arsenovski v. Bodin underscores the importance of an insurer’s responsibility to act in good faith when undertaking claim investigations. In Arsenovski, the Court found the insurer acted maliciously and negligently in its investigation. The case reinforces the fact that insurers should reassess their position in response to new information and evidence to ensure they are acting reasonably and in good faith to their insureds.
Released August 20, 2015 | CanLII This Superior Court decision involved a motion brought by a defendant for an order requiring the plaintiff to attend defence orthopaedic and psychiatric examinations. The plaintiff was involved in two motor vehicle accidents in 2006 and 2009. The pleadings and the available medical evidence indicated that the plaintiff’s physical and psychological impairments were matters at issue in the proceeding. …
This six-week jury trial involved a plaintiff who sustained a mild traumatic head injury after a fall down stairs at the defendant’s premises.
In this Divisional Court decision, a three-judge panel considered whether the applicant was entitled to Statutory Accident Benefits after being involved in an ATV accident while in British Columbia (“BC”).
The Divisional Court affirms a declaration that the insurer’s denial of IRBs was defective (18 years later) and therefore the limitation period had not been triggered.
An interpretation of section 38 of the SABS, and whether costs must be incurred for an insurer to become entitled to the treatment plan upon an insurer’s failure to give timely notice of a denial.
The Divisional Court decision of Aviva v. Suarez is a recent SABS decision that has important ramifications for the public pertaining to the access to injury victims of benefits provided for in the Statutory Accident Benefits Schedule…
In this case, the Respondent, J.A. was injured in a motor vehicle accident in February 2005. He applied for accident benefits through his insurer, Aviva. In 2015, around the time when his medical rehabilitation benefits were expiring, he applied for catastrophic impairment determination. Although Aviva found there was insufficient medical documentation, it nonetheless conducted its CAT assessments which later found he was not catastrophically impaired…
SABS insurers must provide a specific reason for an EUO request before being entitled to it.
The Court of Appeal held that Section 33(4)3 of the Statutory Accident Benefits Schedule does not require an insurer to give a specific reason for requesting an Examination under Oath of the claimant.
This appeal concerned the nature of the notice an insurer must give to examine an applicant for accident benefits under oath. Section 33 (2) says the applicant “shall” submit to an examination under oath if requested. Section 33 (4) (3) requires an insurer to give the applicant advance notice of the “reason” for the examination. Relying on the latter, some applicants demanded their insurer provide reasons in the sense of a justification that they attend an examination under oath.
This was an appeal of a preliminary issue application commenced by the insurer to determine if the applicant was entitled to accident benefits under the SABS. The question before the court was whether s.279 of the Insurance Act could be circumvented in this manner.
Court of Appeal provides refresher with respect to limitation periods and municipal notice periods in cases dealing with minors.
Defendant’s Motion for DMEs Dismissed, while also Chastised for Not Taking Pre-Trial Preparations Seriously
The defendant successfully brought a motion for summary judgment on the basis of the limitation period in this action over a radial keratomy eye procedure resulting in vision problems.
This refusals motion concerned a plaintiff’s request for the statutory third party’s file contents, including the defendant’s first statement to his liability insurer and all correspondence between the defendant and his liability insurer. TD, the statutory third party (when the motion was heard), refused production on the basis of litigation privilege. The plaintiff’s motion was defeated.
The defendant admits prescription error but denies that Toradol received by plaintiff caused an ulcer, repeat intestinal bleeding and chronic pain. There is no other change in the plaintiff’s life to explain sudden decline. By causal inference, judge finds defendant caused injury to plaintiff.
Pointing fingers to a non-party an unsuccessful strategy in this important medical malpractice and MVA intersectional case
Court of Appeal Upholds $1.5 Million Punitive Damages Award and Full Indemnity Costs in LTD Jury Trial Appeal
In this case, the plaintiff is awarded full indemnity costs after an LTD jury trial.
Honest belief of valid insurance found despite cash and barter deal; lay witness testimony sufficient to show proof of economic loss.
The Occupiers’ Liability Act does not create a standard of perfection or presumption of negligence against occupiers whenever individuals are injured on their premises. Rather, a plaintiff must be able to point to some act, or failure to act, on the part of the occupier which caused or contributed to his or her injury before liability will be established.
The Court of Appeal confirmed that it is inappropriate to treat a motion to strike portions of a Statement of Claim as a summary judgment motion by examining evidence on the merits of the action.
On the defendant’s summary judgment motion over the limitation period in this class action the plaintiff was granted partial judgment for breach of fiduciary duty.
Despite serving the co-defendant to the point of intoxication and breaching their obligations under the Liquor License Act, the Court found no liability on the part of the bar for damages sustained by the Plaintiff in an assault and battery.
This occupiers’ liability case highlights the importance of meeting the 10-day statutory notice requirements in proceedings against the Crown
Appeal of a judge’s decision to reduce the jury’s awards pursuant to s. 267.8 in the absence of clear evidence of quantum.
This is a preliminary issue hearing as to whether the applicant, Hiwad, should be excluded by section 31(1)(a)(i) of the Statutory Accident Benefits Schedule from claiming certain accident benefits as a result of operating an uninsured automobile.
In this case, refusal to provide ‘costs estimate’ with R 49 Offer to Settle, disentitled Plaintiff to Substantive Costs Award post-trial-victory…
ENTITLEMENT TO ACCIDENT BENEFITS – UNINSURED DIRT BIKE FOUND TO BE AUTOMOBILE
In this case, the Ontario Court of Appeal reversed the motion judge’s dismissal of the Plaintiffs’ medical negligence claims…
The Court of Appeal has upheld a trial judge’s decision finding the City of Sudbury negligent for failure to properly maintain a roadway during inclement winter conditions. Cities (and by extension winter maintenance contractors) are expected to respond to the potential of ice forming on roadways even while maintenance is underway. Even in the face of a roadway being cleared just prior to an accident a City may be found to have breached the standard of care in discharging a City’s obligation to maintain the roadway in good repair.
In this case, the Appellant is a Defendant in a personal injury action in which the Plaintiff seeks damages for injuries suffered when kicked by a horse in May 2010.
In this case, Justice Sheard recently struck a jury notice for an upcoming trial in Hamilton.
On January 17, 2017, the applicant drove to a hospital, parked his car, and exited the vehicle. As he was walking from his car, he slipped on ice in the parking lot.
In a 5-4 decision, the Supreme Court of Canada held that a trial judge is not required by law to draw an adverse inference against physicians whose negligence makes it impossible to prove causation and where the plaintiff adduces at least some evidence of causation. Trial judges are permitted to draw such inferences, but are not required to do so.
Both Benson and Perneroski applied for accident benefits. Both insurers denied coverage on the basis that the vehicles were not “automobiles”.
Released August 10, 2015 | CanLII This is a brief decision addressing whether counsel must produce dockets when the issue of costs is being considered after a trial. This issue arose after the Plaintiffs were successful at trial and awarded $305,000.00 for damages, inclusive of interest. The damages award was more than double the amount of the Defendant’s formal Offer to Settle. This was a judge alone …
Released June 12, 2015 | CanLII This is a judge alone trial decision. The trial proceeded before Mr. Justice Faieta in March 2015. The minor Plaintiff was injured while boarding a ride with his father at the Centreville Amusement Park. The Defendant advanced the argument that there was contributory negligence on both the minor Plaintiff and his father in part because he had a pre-existing …
This recent Court of Appeal (ONCA) decision serves as a great reminder that retainer agreements should be carefully drafted to reflect the true nature of the solicitor-client relationship and that they should be adapted to account for all foreseeable outcomes.
Superior Court Threshold Motion in which the plaintiff established that their impairments (including chronic pain disorder) constituted permanent serious impairment of important physical, mental or psychological function as a result of a motor vehicle collision
In considering the issue of costs, factors taken into account include: 1) the rates charged and the hours spent by the plaintiff’s counsel; 2) the amount claimed and the amount recovered by the plaintiff; 3) the complexity of the proceeding and the importance of the issues; 4) the conduct of any party that tended to shorten or lengthen the proceeding; 5) whether the action should have been brought under the simplified rules pursuant to Rule 76; and 6) the reasonableness of the costs.
This decision provides a helpful overview of the settlement approval process and the factors that judges take into consideration when evaluating proposed settlements.
A Temporary Return to Work Does Not Extend Two Year Limitation Period Triggered by Denial of Income Replacement Benefits
Additional reasons on costs following successful summary judgment motion by second defendant, CIBC. CIBC argued for substantial indemnity on basis of Offers to Settle.
In this case, the defence expert’s evidence was excluded entirely. The evidence was biased and unreliable from the beginning and was, therefore, inadmissible…
On the motion, the Plaintiff’s lawyer sought a charging order against monies awarded to the Plaintiff as a first priority ahead of any amounts entitled to the Defendants by way of set-off, where significant costs were awarded to the Defendants based on Rule 49 offers made before trial
A recent decision of the Ontario Court of Appeal on the issue of whether or not the Plaintiff’s lawyers were entitled to a “charging order” over the Plaintiff’s damages and costs following a trial where the Plaintiff did not beat a rule 49 offer from the Defendants.
Summary Judgment for Failure to Give Notice under s. 44(10) of Municipal Act
In a recent Ontario Superior Court decision, Boustany v. Singh, Justice Gibson explored the initial duty of care element in the law of negligence within the context of a Rule 21.01(1) motion…
In this case, the Court of Appeal of Ontario reviewed the doctrines of waiver and promissory estoppel in the context of an insurer’s right to deny coverage following the discovery that their insured had been consuming alcohol prior to a motor vehicle accident…
Revision of the Traditional Deductions in Calculating Quantum of Damages
Throughout the course of the litigation, the Defendants did not make any offers to settle. There was not even an offer for a dismissal without costs.
The Ontario Court of Appeal held that, in circumstances where the plaintiff’s doctor continued to treat the plaintiff and engage in good faith efforts to remediate damage, the plaintiff did not know that it was appropriate to start an action against the doctor until after the last surgery proved unsuccessful.
This decision concerns a threshold motion following final instructions to the jury for an order striking the plaintiff’s claim for general damages on the basis that she failed to prove she suffered permanent and serious impairment of an important physical, mental or psychological function pursuant to s. 267.5 of the Insurance Act, R.S.O. 1990 Chapter I.8, as amended, including Ontario Regulation 381/03, made therunder. The motion was defeated.
The Court of Appeal orders a new trial after finding the trial judge failed his gatekeeper duties in allowing Dr. Monte Bail’s testimony.
Full Decision (PDF) Counsel: Bonnie Roberts Jones (Appellants – Responding Parties) Alexander B. Paul and Kaleigh Soneshine (Respondent – Moving Party) Bradley M. Remigis (Respondents – Moving Parties) Judge: Huscroft J.A. Recent decision on motions for security for costs. The Appellant fell while jogging on an indoor running track at McMaster University. He fell after colliding with a member of one of McMaster University’s running …
This case examines the Ontario Automobile Policy pertaining to passengers in a stolen vehicle.
Released July 13, 2015 | CanLII This is an appeal by the Plaintiff from the judgment of Ramsay J., granting summary judgment and dismissing the Plaintiff’s claim for non-earner benefits (“NEBs”) as time-barred. At the time of the accident on June 3, 2004, the Plaintiff was a hairdresser. She elected income replacement benefits (“IRBs”), although her disability certificate indicated that she was entitled to both IRBs …
This case involves a plaintiff who claimed personal injury damages after witnessing a very serious collision and its aftermath. The plaintiff happened to stand outside his aunt’s home when two cars collided and he
The Appellants sued the Respondents (their former solicitors) for missing the two-year limitation period, and failing to plead that the six-year limitation period applied. Among other things, the Appellants ….
Nurses found liable for injuries to child suffered at birth – $5.2 million dollars awarded
Insurer Examiner’s evidence found inadmissible due to insurer’s non-compliance with Section 44 of the SABS.
In this case, Justice Salmers found a school board vicariously liable for historical sexual abuse of a student by her teacher and ordered both defendants to pay more than $500,000 in damages. This is an important decision as it imposes liability for the abuse on the school board in the absence of any evidence of wrongdoing on the part of the school board.
Apples can now be deducted from oranges. Date Heard May 1-2, 2018 Since the start of no-fault auto insurance benefits in Ontario, tort defendants were entitled to deduct collateral benefits the plaintiff received before the tort trial and obtain an assignment for future no-fault benefits that are the same as the damages awarded. The principle is that an injured plaintiff should not receive double recovery …
The Court of Appeal upheld the trial decision of Justice M.A Garson. The County of Bruce (Bruce) as occupier, was liable for the Plaintiff’s injuries for failing to take reasonable care. No damages were dealt with at trial.
Dismissal of constitutional Challenge to the LAT and restrictions on pre-trial MVA income loss.
The Appellant purchased a home from the Respondent. Due to a faulty design, the home leaked, and mould formed. The Appellant sued the Respondent for psychological and emotional injuries. Following a motion for summary judgment, the Appellant’s action was dismissed.
The Tort of Internet Harassment
Defendant brought Third Party claim against home owner, but failed to serve the Third Part Claim. Defendant’s motion to validate service was dismissed. Court was not satisfied that statement of claim came to third party’s attention. Motion judge found personal service was important because third party’s potential liability far exceeded limits of her policy. Defendant appealed and this appeal was dismissed as the interests of justice did not require dispensing with service.
Released September 2, 2015 | CanLII In August 2006, a fire spread from land owned by the respondent, Canadian Pacific Railway Ltd. (“CPR”), to land owned by the applicant, Carioca’s Import & Export (“Carioca”). Carioca alleged that the fire spread due to CPR’s negligence and claimed against CPR for the alleged damage that it caused. In June 2009, Carioca set the action down for trial, and …
PJI Amendment is Not Retroactive and Costs Incurred Pursuing ABs May be Paid by Tort Defendant
In this case, the Plaintiff was injured in a motor vehicle collision on August 16, 2018. He applied to AVIVA for Statutory Accident Benefits including income replacement benefits. AVIVA denied IRB’s in April of 2019 after the Plaintiff completed a multidisciplinary suite of insurer examinations required by AVIVA…
Waiting for an investigation to be completed does not extend the limitation period
An extension of time to amend a pleading will not always be granted, especially if it will cause undue delay.
Released August 24, 2015 | CanLII This Superior Court decision involves two summary judgment motions brought by two defendants to dismiss the action against them on the basis of liability. The action arose from injuries the plaintiff sustained to his left ankle while operating a tractor on a steep embankment of a cottage property. While the plaintiff was moving rocks on the property, the tractor flipped …
In this case, the Court of Appeal found that the trial judge’s reasons for dismissing the claim were insufficient, did not permit proper appellate review and sent the matter back for retrial. The Court of Appeal also gave important reasons on the defendant’s attempt to withdrawal an admission made in a Request to Admit.
Defendant physician brought a motion post-trial to withdraw an admission made in response to the Plaintiff’s Request to Admit when it became apparent at trial that it was inconsistent with her expert’s opinion.
Court of Appeal confirms “car surfing” is within the ordinary and well known uses of a vehicle giving rise to accident benefits coverage.
Costs on a Motion – Allegations that impugn the professional integrity of opposing counsel and are unproven warrant a punitive award of costs and will result in an award on the substantial indemnity scale.
Released May 29, 2015 | CanLII This was an appeal of an order dismissing SSQ’s motion to remove plaintiff’s counsel in a disability claim against SSQ. The motion was brought by SSQ after it learned that plaintiff’s counsel had retained two medical experts who had been consulted by SSQ regarding the plaintiff’s treatment needs prior to litigation. SSQ argued that the two experts, an occupational …
This motion considered the admissibility of a defendant ER physician’s standard of care report that was served mid-trial after a preliminary finding was made regarding the scope of the expert’s opinion in relation to his area of practice.
The Court of Appeal dismissed an appeal granting summary judgement against a plaintiff for damages arising from a rear-end motor vehicle accident.
Jury’s answer on causation insufficient according to Justice Wilson. New trial ordered.
In this case, the plaintiff was diagnosed with intrauterine growth restriction (IUGR) before birth, and her condition continued to worsen in the weeks prior to her delivery. While she was not suffering notable impairments when she was discharged, two months later she was revealed to have suffered severe brain damage…
Municipality found partially liable for motor vehicle accident resulting in quadriplegia
Given a proper evidentiary record, a Court may draw reasonable inferences and grant summary judgment in favor of a party who is seeking to prove that, on the balance of probabilities, an event is unlikely to have occurred, so long as the party can show that it exercised due diligence and that a trial would not change anything in that regard or show different evidence.
Justice Spies for the Ontario Superior Court of Justice found that an insurer is required to pay the full cost of mediation when a plaintiff requests a mediation under s. 258.6(1) of the Insurance Act.
Settlement approval motion rejected due to claims not being fully delineated in motion materials
Solicitor’s Negligence Action not statute barred as a result of discoverability.
Clarke v. Sun Life Assurance Company of Canada is an appeal decision following a summary judgment motion on the issue of whether or not the plaintiff sued her Long-Term Disability (LTD) carrier within the limitation period.
In special circumstances, the Court of Appeal has jurisdiction to reopen contingency fee agreements that have been paid and order an assessment to be conducted to ensure public confidence in the administration of justice.
The cooling off period applies for accident benefit settlements in litigation if settlement disclosure notice forms part of the written release.
Duty of insurer to defend or indemnify
The applicant was involved in a motor vehicle collision on October 6, 2018. He was deemed catastrophically impaired due to being rendered a paraplegic as a result of the collision.
In this case, the plaintiffs brought a motion to strike the jury notice and the defendants brought a cross-motion to adjourn the trial because the pandemic has interfered with their ability to obtain responding medical reports…
Released November 13, 2015 | Full Decision [CanLII] Note: not yet available on CanLII There are 3 good reasons to do careful mathematics before resolving a case, drafting an offer to settle or going to trial: deduction of collateral benefits; the statutory deductible for General and FLA damages; and the applicable pre-judgment interest rate. In Cobb, a $220,000 jury verdict, broken down below, was virtually …
Amendment to PJI Rates & SABS Calculations Applicable to 3rd Party Claims. These companion Judgments are appeals dealing with, among other issues, pre-judgment interest and SAB claw-back’s in 3rd party claims
This Ottawa occupiers’ liability case was a bifurcated trial with the issue of liability heard first. While the analysis is largely fact driven, Cooper provides a helpful analysis of occupiers’ liability law and a thorough review of the judge’s findings of fact.
Damages assessment, following jury verdict, in which the new statutory deductible was considered. Also provides commentary on threshold and Chronic Pain.
Superior Court Motion for costs of trial by successful plaintiff. The sought costs exceeded the award recovered at trial. The court decides that over-emphasis on proportionality may serve to under-compensate a litigant for costs legitimately incurred
Released September 8, 2015 | Full Decision This case involved a plaintiff who was badly injured when she was struck by a motor boat while swimming near a harbour entrance. She had been staying at a cottage owned by defendants Shannon Pitt and Erik Rubadeau (“Pitt defendants”) at the time. She brought claims against Benjamin Chalmers in his capacity as driver of the motor boat and …
Released September 8, 2015 | Full Decision Following jury selection and prior to the commencement of trial, counsel sought a ruling concerning the legal effect of the Apology Act. The plaintiff was badly injured when she was struck by a motor boat while she was swimming in close proximity to a harbour entrance. At the time the plaintiff went swimming, she was a guest of the …
Production of prior discovery transcripts where there may be overlapping injuries.
Plaintiff ordered to re-attend examination for discovery after court finds substantial deterioration in his behavioural and psychological condition.
n a much-anticipated employment law ruling, the Superior Court has found that employees temporarily laid off because of the COVID pandemic can bring civil action for constructive dismissal…
In this case, an Ottawa judge recently applied the Ontario Court of Appeal’s analysis in Louis v. Poitras, 2021 ONCA 49 to strike the jury notices filed. While the procedural history in this case is unique, the motion turned on a relatively straightforward analysis that confirms the prejudicial effect of delay…
Damages for Wrongful Death Quantified
The costs fallout of an abandoned summary judgment motion
In this case, the plaintiffs brought a motion seeking leave of the court to strike the defendants’ jury notice. This action arises out of a motor vehicle accident that occurred on January 14, 2015. The action was set down for trial in September 2018.
This case revolved around an accident involving the Plaintiff, Susan Cuming, which occurred on November 4, 2008 while she was riding her bicycle…
Related: Unifund Assurance Company v. D.E., 2015 ONCA 423 Released September 11, 2014 | CanLII This was an application for a declaration that Unifund Assurance Company (“Unifund”) had a duty to defend and indemnify the applicants under a homeowner’s property insurance policy. The applicants were a married couple who lived with their minor daughter in Toronto. The daughter and parents were all sued as defendants in a lawsuit …
LAT deems spinal cord injury caused by parked car to be an “accident” for purposes of SABS.
An example of the plaintiff advancing a significant damages claim after sustaining mild traumatic injuries.
Soccer player punched during recreational game. The Court of Appeal upholds lower court summary judgment dismissing claim against soccer team, league, coach and others
This verdict serves as a warning to owners and occupiers of properties that they must ensure they have the right person to do the job and that their premises must be safe for the work intended to be performed.
This decision opens the door, albeit in obiter, to precluding experts with prior judicial findings of bias from conducting defence medical examinations and giving evidence at trial.
Released July 3, 2015 | Full Decision The Applicant was riding his bicycle in Burlington, Ontario, when an unidentified vehicle struck either him or his bike and he fell to the ground. The vehicle did not stop and there were no known witnesses. The Applicant’s bicycle was damaged to the point that he could not ride it home. The damage was seen by his wife and his brother-in-law. …
A plaintiff need not know that a defendant’s act or omission was culpable in order for the loss it causes to be discovered.
This decision concerns the relief from forfeiture provisions at ss. 129 of the Insurance Act and 98 of the Courts of Justice Act. The provisions were invoked because the plaintiff, who was involved in a motor vehicle accident with an unidentified driver, failed to comply with the reporting requirements in s. 3 of the Schedule attached to the Uninsured Automobile Coverage regulation under the Insurance Act (the “Schedule)”.
Superior Court Judge invalidates waiver on the basis of violation of the Consumer Protection Act
In this case, the court analyzed whether interest on litigation loans should be a payable disbursement and also outlined several key principles to the assessment of costs…
The court dealt with whether the plaintiff could recover as a disbursement the interest on litigation loans.
Injuries sustained while maintaining vehicle may be an “accident” within the meaning of the SABS.
Added Pleas Constitute a New Cause of Action and are Limitation-Barred
Summary Judgment Motion – Changes to the attendant care benefit that came into force on February 1, 2014 only apply to accidents on or after February 1, 2014.
This was a motion by the Plaintiff to compel productions and attendance at examinations for discovery of an insurance broker after the matter had been set down for trial in which conflicting authorities were reviewed.
Clarification of test for granting leave after trial record filed under rule 48
In Denman v. Radovanovic, the Ontario Court of Appeal unanimously upheld the trial judge’s decision to find all three defendant physicians liable for failing to obtain Mr. Denman’s informed consent to an elective and multi-step plan of medical intervention to cure Mr. Denman’s brain arteriovenous malformation (“AVM”). This summary will focus on five key takeaways from the Court of Appeal’s decision, written by Rouleau J.A.
The Licence Appeal Tribunal (LAT) decision of Derenzis v. Gore Mutual Insurance Company, September 18, 2023 (unreported) raises the question of whether the Tribunal has jurisdiction to grant a civil remedy, in particular injunctive relief, and whether adjudicative privilege and deliberative secrecy attach to certain documents internally produced at the LAT. Applicant’s counsel filed affidavit evidence of a whistle blower from the LAT that addressed institutional issues of alleged bias and adjudicative interference.
The plaintiff, Megan Desrochers, suffered a severe injury when the ATV she was driving left the unpaved road she was on and struck a tree.
At the time, Megan was dating Patrick McGinnis. Patrick’s parents owned a farm near the collision site. Patrick’s father, Grant McGinnis, owned the ATV and kept it at his farm.
Released October 15, 2015 | CanLII This motion concerns a plaintiff’s efforts to set aside an administrative dismissal order dated November 26, 2014 to permit reinstatement of the proceeding and to extend time to set the action down for trial. The action was commenced in 2008 and at the time of the motion, the plaintiff’s counsel missed deadlines to set it down. The defendant consented …
Threshold motion which considered competing Orthopedic expert reports. Court preferred more extensive, functional approach to impairment used by Plaintiff’s expert.
Summary judgment was granted dismissing the Plaintiff’s action pursuant to the unidentified driver provisions of the Plaintiff’s policy.
Spilling hot coffee in a drive-through is an “accident” under s.3(1) of the SABS Released October 24, 2017 | Full Decision [CanLII] The Plaintiff spilled hot coffee on her lap while in McDonald’s drive-through. Her car was in gear at the time, but not moving. There was no other vehicle involved in the spill. She was wearing her seatbelt and could not take evasive action …
Released July 2, 2015 | CanLII This lawsuit was commenced in relation to the violation of a publication ban by the defendant, Sun Media Corporation, after a long and complex criminal proceeding involving Gregory Last, accused of various offences including sexual assault. Briefly, the accused was convicted in 2005, lost on appeal, but had his convictions set aside by the Supreme Court of Canada in 2009. The …
The Plaintiff, Carmen Doobay, presented at hospital with, what she alleged, were signs and symptoms of a stroke. She claimed that the treating emergency professionals, a nurse and a physician, failed to recognize those signs and symptoms…
Released September 21, 2015 | Decision Dube permitted relief from forfeiture for a disabled employee who failed to give proof of claim within the 90-day period under his employer’s group policy. The Court of Appeal provides a victim-friendly analysis under the relief from forfeiture test. In Dube, the Plaintiff was injured in an accident in May 2010. His employer advised him that he was ineligible …
In this MVA summary judgment motion, the court found that the plaintiff’s conviction of “failure to yield” under the Highway Traffic Act did not resolve the issues of liability in the civil action.
This is a Costs Hearing subsequent to the Judgment by Healey J., with respect to a Motor Vehicle Accident Claim with a particular focus on SABS deductibility Released March 7, 2017 | Full decision [CanLII] Two of the most pressing issues to be decided by the Court were: The amount, if any, of any deduction for collateral benefits to be made from Meaghan Dunk’s award; The scale …
Where trial counsel employs inflammatory and inappropriate language in their closing, a clear and strong jury charge may obviate the need for a mistrial. Further, where a party fails to provide a Rule 53 report in adherence with the Rules, that expert’s evidence will be limited in scope.
This was an appeal of a preliminary award in which the arbitrator determined that an insurer’s policy had expired prior to the collision in question. The issue on appeal was whether an improperly cancelled policy remained in force.
Released June 10, 2015 | CanLII Patrick Caughy applied to Economical for accident benefits under his own motor vehicle policy, as a result of injuries he sustained on August 3, 2012. Economical brought an application for a determination as to whether Mr. Caughy had been involved in an “accident”, pursuant to section 3(1) of the Statutory Accident Benefits Schedule – effective September 1, 2010 (“the Schedule”). …
Court of Appeal upholds application judge’s finding that a trip over parked motorcycle qualifies for SABS.
In this settlement approval motion, plaintiff counsel’s fees were reduced from $793,500 to $225,000 because the contingency fee agreement was not compliant with the Solicitor’s Act
Court rules where expert report served during discovery process, lawyers’ letter of instruction to expert is protected by litigation privilege and not producible at discovery stage so long as instructions from counsel is included in the report itself.
Released July 28, 2015 | CanLII This decision concerns the calculation of prejudgment interest, whether the Court has jurisdiction to make an order pursuant to the trust and assignment provisions of the Insurance Act in the absence of a notice of motion and costs. It was released after the plaintiff, who was catastrophically injured in a motor vehicle accident, was awarded $2,931,006.00 by a jury. …
In Endale v. Parker, a motions judge ordered the plaintiff to pay the costs of delivering documents to fulfill undertakings save for reasonable photocopying costs.
This is a motion for leave to appeal from a motion for summary judgment and documentary productions
The Plaintiffs succeeded in adding a defendant more than six years after the death anniversary of the deceased based on the special circumstances doctrine.
Released October 16, 2015 | CanLII This endorsement on costs concerns the plaintiffs’ effort to escape an adverse costs award after their action was dismissed following the defendants’ successful summary judgement motion. The plaintiffs requested there be no cost order on the basis of their impecuniosity, which they sought to substantiate by filing an affidavit stating they had accumulated debt and tax liabilities in excess …
In Eynon v. Simplicity Air Ltd, the Court of Appeal addressed a significant punitive damage award in a case where the plaintiff contributed considerably to the incident that caused his injury.
Court of Appeal dismisses appeal of charging order alleging judicial bias
This decision is important for its insights on causation in the context of tortious and innocent causes of an injury.
In this summary judgment motion, Perell J. of the Ontario Superior Court of Justice held that a person cannot always be expected to commence an action before he or she knows that the injuries surpass the threshold, which may not always be apparent on the date in which the accident occurred.
On the defendant’s motion to compel answers to questions refused at discovery, questions regarding the possible criminal involvement, education and employment of plaintiff’s younger sibling were held to be not relevant, probative, necessary or proportionate to the issues in the action
If an insurer fails to comply with the notice requirements at section 38(8) of the SABS, the relief in section 38(11) is mandatory and the insurer is prohibited from making a MIG determination on the applicant’s claim.
Released August 10, 2015 | CanLII After 62 Years, Court of Appeal Admits it was Wrong A five-judge panel of the Court of Appeal just over-ruled its own decision from 1953 on vicarious liability of the owner of a vehicle being driven on the highway. This week, the Court released its decision in Fernandes v. Araujo (2015 ONCA 571) about the liability of the owner of …
Lawyers can be held personally responsible for costs when a lawyer breaches his or her duty as an officer of the court and abuses the processes of the court.
A young man drowned at a cottage at a 2010 graduation party put on by Enid Weiner’s adult son, wife, and daughter (the hosts)…
Union pension not deductible from MVC income loss claim.
Court rules ATE policies must be produced.
Adverse costs insurance policies must now be produced pursuant to rule 30.02(3).
An unsuccessful motion to add defendants more than 4 years after the incident with helpful comments about reasonable due diligence.
Released September 23, 2015 | Full Decision Rarely will leave to appeal be granted from the decision to dismiss a summary judgment motion. Normally, the moving party lives to fight the issue on the merits another day. This was the rare case. The issue was discrete but central in the proceedings. It would speed the resolution of a long standing case. In 2005, a collision …
Released Semptember 23, 2015 | Full decision [OTLA Document Bank] This was a motion before the Divisional Court for leave to appeal an order dismissing a summary judgment motion. The defendant, Elizabeth Carroll had pleaded that she was driving her mother, the defendant Celina Carroll’s car with permission. Apart from the presumption of permission, all other evidence, including the sworn testimony of both defendants on …
A plaintiff’s claim against her own Ontario-based automobile insurance company for uninsured/underinsured coverage is not a “real or substantial connecting factor” in establishing jurisdiction over an out-of-province motor vehicle tort claim
This Reconsideration Decision involves the issue of whether the applicant can receive both the Canada Recovery Benefit (“CRB”) and the Canada Emergency Response Benefit (“CERB”) and Income Replacement Benefits IRBs.
Recently, in the Reconsideration Decision of Foster v. Aviva, Vice-Chair Boyce of the LAT tackled the issue of whether the CRB and CERB are deductible from IRBs…
This is a motion for summary judgment in the context of the OAP-1’s unidentified motorist provisions.
In this case, the motion to strike the defendant’s jury notice due to delays caused by the COVID-19 pandemic was brought pursuant to r. 47.02 of the Rules of Civil Procedure…
Court of Appeal upholds abuse of of process dismissal of Doctor’s defamation lawsuit against medical malpractice plaintiff counsel.
In considering the issue of gross negligence by a city, the court looked at whether it was reasonably foreseeable that members of the public would enter the premises during the winter season. If it is, the city must provide a reasonable level of winter maintenance, post notice that maintenance had ceased, or block access to the premises. However, the court will also look at whether enough snow has fallen that a reasonable observer would conclude that the premises are no longer in use and/or not being maintained and, at that point, the city may reasonably cease all maintenance on the premises as there would be no good reason to believe that anybody will use it.
Plaintiff Awarded $150,000 Punitive Damages for Insurer’s Bad Faith Handling of Chronic Pain LTD Claim
On June 15, 2021, the Divisional Court released its long-awaited decision on three appeals, which all related to whether the Licence Appeal Tribunal (LAT) has the jurisdiction to extend the two year limitation period for disputing accident benefits claims under the Statutory Accident Benefits Schedule. The LAT had been releasing inconsistent decisions as to whether it had this jurisdiction, and clarity was required from the appeal court…
In this case, the Plaintiffs successfully moved to strike the Defendant’s civil jury notice. This is the first decision of its kind in the Windsor-Essex region…
Released October 6, 2015 | CanLII This is a motion for summary judgment on a limitation period issue. On May 13, 2006, the Plaintiff fell off of a dance stage at a bar and broke her arm. She sued only the bar owner (tenant) within two years of the fall. The bar and its insurer defended the action; unfortunately, the bar closed and its insurer became …
Court of Appeal upholds trial decision apportioning liability 20% as against City Bus with right-of-way, which collided with a vehicle running a ran light.
This case affirms that liability in motor vehicle accidents is not clear-cut, even in cases where the right of way is undisputed. In apportioning liability for an accident, the court will assess the reasonableness of each driver’s actions in the circumstances. Professional drivers will be held to a higher standard of care than ordinary drivers in similar situations.
This case is about a 2008 oil leak, wherein a home furnace oil tank leaked through the basement and into surrounding soil, through a drainage system under the house and into the city’s culvert, which carried it into nearby Sturgeon Lake The leak instigated a massive remediation project to remediate the millions of dollars of damage to the environment.
The Plaintiff, Gennett Lumber Company, brought a motion for default judgment against a defendant who was a participant in a complex fraudulent scheme.
Court of Appeal Refuses to Order Trust or Assignment of Accident Benefits Following Trial
Court of Appeal sets aside trial decision favouring defendants, orders new trial, and awards costs against defendants for trial and appeal.
Despite concerns regarding the credibility of the parties, Justice Dow grants Summary Judgment in “very exceptional case where the paper record was sufficient to reach a fair conclusion”
In this Court of Appeal decision, the plaintiffs appealed the trial decision that, after set off, resulted in zero recovery with a further $22,406.37 in costs awarded to the defendant.
Is it permissible for a LAT adjudicator to hear reconsideration requests after completing the original assessment?
Is a “modest excuse” sufficient to justify a delay in notifying a municipality of a potential claim?
Court is not required to determine whether a plaintiff’s injuries meet threshold for non-pecuniary general damages and health care costs under s. 267.5(15) of the Insurance Act if the amount awarded for pain and suffering is zero.
A reminder that expert witnesses retained by both plaintiff and defendant counsel are expected to give evidence in a way that is objectively helpful to the court, and not influenced by which side that retains their services.
In this case, the original LAT decision denied the applicant’s motion to add the issue of punitive damages in the amount of $150,000.00. On reconsideration, Adjudicator Mazerolle again denied the applicant’s request…
Released July 15, 2015 | CanLII This Divisional Court decision concerns the issue of when interest begins to run on attendant care benefits. The Divisional Court noted that the determination of this issue turned on when the payment of a benefit is “overdue”. The Plaintiff was involved in a motor vehicle collision on December 7, 2001. The Plaintiff retained various occupational therapists and case managers to …
A plaintiff must have knowledge beyond “mere suspicion” for a limitation period to commence, and in some cases, additional medical information is required for the plaintiff to have the requisite knowledge to discover his or her claim for an alleged medical complication.
In this case, the plaintiff died in 2011 of stage IV uterine leiomyosarcoma (“uLMS”), which had metastasized to her lungs. The allegation at the centre of the lawsuit was that her gynecologist failed to perform a routine endometrial biopsy in 2009 and that, if he had, her cancer would have been detected at an early stage such that her death could have been avoided through proper treatment…
A civil suit finding there had been false arrest, negligent investigation and malicious prosecution.
An LTD insurer is entitled to reduce the amount of LTD payments under a group insurance plan by the amount of the non-earner benefit the insured person is receiving, so long as the accident benefits insurer is not deducting LTD payments from the amount of the NEB payable.
This was a motorcycle vs. recycling truck collision where the parties agreed that the Plaintiff motorcyclist’s damages were $8 million. The Plaintiff appealed the jury’s verdict that he was 100% liable for the collision.
Summary judgment granted where the Plaintiff could not produce objective evidence of an unsafe condition resulting in her slip and fall.
Are claims for recovery of legal expenses incurred in connection with the inquest conducted into the death of JD potentially recoverable in law as against the defendants, pursuant to section 61(1) of the Family Law Act, or are such expenses excluded claims which are not potentially recoverable at law?
The Court of Appeal for Ontario held that a Minnesota tortfeasor with only $500,000 liability limits is an “inadequately insured motorist” under the Family Protection Endorsement (OPCF 44R) in Ontario, where the 44R limits are $1 million.
On July 26, 2017, the plaintiff, a lawyer for Legal Aid Ontario, submitted a claim for long-term disability benefits (LTDs) to Sun Life Assurance Company of Canada (Sun Life), alleging total disability as of April 18, 2017, due to left arm and shoulder pain, anxiety, depression and phantom limb pain. On September 26, 2017, the plaintiff received a letter from Sun Life advising her that her claim for LTDs had not been approved as she did not satisfy the definition of “total disability”.
Insurers’ mere boilerplate reasons for denying treatment will no longer suffice in light of this Licence Appeal Tribunal (“LAT”) decision, which was upheld on appeal.
The following reasons for decision on costs was released by Justice G. Dow on January 4, 2023. The decision is noteworthy given the significant quantum of costs and disbursements awarded to the plaintiffs and the discussion about Sanderson Orders.
Full Decision In this case the court considered the effect of a termination clause which provided for termination without notice in case of a breach of confidentiality or conflict of interest. Material facts The defendants operated a dental surgery practice in the GTA. Both doctors are now retired. The plaintiff was the receptionist since 1990. Her employment was terminated on April 30, 2020. Her annual …
The Ontario Superior Court in Toronto recently dismissed the defendant’s motion to strike the jury notice in Henry v. Zaitlen 2021 ONSC 456, days after the Ontario Court of Appeal’s decision in Louis v. Poitras, 2021 ONCA 49…
Full Decision The Superior Court of Justice helpfully clarifies the approach to quantifying loss of competitive advantage in Herrington. After sustaining injuries in a motor vehicle collision, the plaintiff continued to earn business income but in a market with serious labour shortages. Additionally, he was no longer able to perform the physical work of the job. The case also addressed causation and the “crumbling skull” …
Judge upholds Master’s decision not to order production of settlement release related to prior motor vehicle accident litigation.
In this case, the Plaintiff brought a motion to strike the jury after her four-week trial.
The plaintiff was successful in this action brought over the efficacy of anesthesia.
Coverage decision about “use or operation of an automobile”
Court of Appeal speaks to the Difference between Litigation Experts & Participant Experts (and the exception to complying with Rule 53.03)
This case examines which fees are reasonable and necessary for complex treatment plans, including out-of-session services, form completion, brokerage time and report preparation.
On June 7, 2012, at approximately 1:30 am the Plaintiff was injured in a motor vehicle accident. He was seated in the front passenger seat and was not wearing a seat belt.
The Court ordered that it was just and convenient to conduct examinations for discovery by way of video conference based on Rule 1.04 and Rule 37.04. The Midland decision clearly states that where a party resides outside of Ontario, neither party has a prima facie right with respect to the place of examination. Equally, there is no presumption for or against video conferencing. The test for determining the location of examinations is what is just and convenient for both parties based on circumstances of the case.
A recent decision from the LAT has given claimant’s counsel some direction regarding the procedure for appointing a litigation guardian for an incompetent applicant.
Once the plaintiff has proven that a rear-end collision occurred, the evidentiary burden shifts from the plaintiff to the defendant, who must then show that he or she was not negligent.
In this case, the action arises out of the sexual assaults the plaintiff alleges he suffered at the hands of the defendant…
This is a rare addition to the relatively scant amount of case law regarding simplified procedure. The decision involves a motor vehicle collision claim and contains procedural guidance on the use of joint document briefs, agreements on the use of the documents in said brief, CaseLines and how expert evidence is called at a simplified procedure trial.
This was an appeal by an insurer of a decision assigning priority for accident benefits to it instead of the first responder. The main issue on appeal was the question of dependency.
This case addresses whether the abuse of process doctrine prevents the appellant from leading evidence in subsequent arbitration, subject to a previous finding of fact by another court; enlivening the principle of ‘evidence to the contrary’.
The standard of care applicable for drivers in emergency situations is not a standard of perfection. The doctrine of emergency will be applied where the harm is “imminent and unforeseen”.
A Trial Judge declares a mistrial due to significantly underestimated trial duration.
This fire loss trial resulted in an award to the plaintiff for its losses under the policy, extended profits losses due to insurer delay and a punitive award to denounce the high handed insurer behavior in delaying payment two years.
Adverse costs insurance policies need not be produced in their entirety where the insured is the law firm and not the plaintiffs. To require disclosure would require a breach of the solicitor-client privilege of other clients covered under the policy.
Court awards $11,300 in costs where late served surveillance leads to a mistrial and an adjournment.
RECENT UPDATES ON THE TORT OF PUBLIC DISCLOSURE OF PRIVATE FACTS
Released September 28, 2015 | Full Decision [OTLA Document Bank] This was a summary judgment motion seeking to dismiss the action against the defendants, Economical Insurance Group and its subsidiary, Perth Insurance Company. On July 5, 209, the plaintiff, Dimitar Jeliazov was struck on his motorcycle by an unidentified motorist. He had taken possession of the motorcycle on June 29, and had not yet informed …
In this recent appeal of a LAT reconsideration, the Divisional Court confirmed an AB insurer cannot require a section 44 medical examination to determine eligibility for prescription medication claims.
In this case, the defendant GM experienced a fire at their St. Catherine’s plant which led to a series of events resulting in the arrest of the plaintiff Hall, and a finding of not guilty at the criminal trial, followed by civil proceedings against GM, the Niagara Police Services Board and several of its police officers…
In this case, the plaintiff was successful in striking the defendant’s jury notice. This was the first decision out of the Toronto Region where a plaintiff was successful in striking the defendant’s jury notice…
The Plaintiff was successful in adding the OAP 1 Insurer as a defendant six years after the accident.
This is a post-verdict motion dealing with, among other issues, the assignment of future sabs which the plaintiff may be entitled.
A motion under rule 30.10 of the Rules of Civil Procedure brought within a civil action alleging libel, seeking a complete and unredacted Crown Brief in an ongoing criminal sexual assault prosecution.
In the recent decision before the Licence Appeal Tribunal (LAT), K.D. v. Aviva Insurance Company, 2020 ONLAT 18-011646/AABS,Vice Chair Farlam clarified some long-held differences of opinion between insureds and insurers – or affirmed the interpretation of unambiguous statutory legislation, depending on whom you ask – regarding the calculation of a weekly base amount for income replacement benefits payable to self-employed motor vehicle accident victims.
In this case, Aviva subjected to pay order for unreasonably withheld or delayed payments for having “stubbornly maintained its denial and forced a hearing where it, for the first time post-accident, raised causation issues”…
In this case, the insurer was ordered to pay special award for unreasonably held or delayed payment of IRBs after ignoring severity of psychological impairments and reports of its own assessors…
Following a 6-day video-conference hearing, Adjudicator Lake ruled that the Applicant was entitled to payment of income replacement benefits in the amount of $400.00 per week from July 17, 2019 to date and ongoing, plus interest in accordance with s. 51 of the SABS…
Motion for the production of non-party Children’s Aid Society’s file is speculative and an unmeritorious fishing expedition that amounts to an unwarranted invasion of privacy.
This decision demonstrates that for catastrophic cases, the LAT has made it clear that properly qualified experts will lose credibility if they do not have sufficient expertise in the areas for which they are providing WPI rating.
The LAT address of res judicata as it may relate to the determination of MIG status.
This recent decision is a reminder of the affirmative duty that occupiers owe to take reasonable care to ensure that people are safe while attending on their premises.
The Court is set to consider whether payors of automobile insurance premiums should be excluded from sitting on juries and intervening parties are set to weigh in to assist the Court in making a determination.
Released December 29, 2014 | Decision Kassburg imposes on insurers a duty to communicate a clear and unequivocal denial of a claim in order to trigger the limitation period under the Limitations Act 2002. It also ruled that LTD contracts are not “business agreements.” Ms. Kassburg stopped working due to disability in October 2007, submitted her LTD claim in April 2008 and was denied benefits …
In a recent costs decision on a construction law case, Justice Broad considered the principle of proportionality in mixed-success simplified procedure cases.
n Kellerman-Bernard v. Unica, the Ontario Divisional Court held that a parent who suffered psychological injuries as a result of her son’s bicycle collision was entitled to apply for catastrophic designation
This was a defendant’s motion for an order pursuant to Rule 19.03 of the Rules of Civil Procedure setting aside the noting of default and allowing him to file a statement of defence. The motion was granted after Maramger J. reviewed principles the Court will take into account when exercising its discretion to set aside and order noting a party in default.
This was a costs endorsement arising from a successful summary judgment motion brought by the defendants Krylov & Company and Devry Smith Frank LLP.
Released September 4, 2015 | CanLII This was a motion by the defendant, 14939201 Ontario Limited, to dismiss the plaintiff’s action against it for failure to issue within the limitation period and for summary judgment on the basis that the defendant did not owe a duty of care to the plaintiff. The plaintiff’s action arose from an assault at the Ministry nightclub. The defendant was the owner …
A recent family law decision has opened the door for plaintiffs to introduce findings of health professionals’ regulatory proceedings in civil proceedings.
This case addresses when officers may be held civilly liable, and in so doing, outlines a number of general legal principles relevant to assessing officer negligence.
This is an Appeal from Summary Judgment asking whether the motion Judge erred in concluding that a termination clause in the employment contract was unenforceable for lack of consideration.
The appellant, who was self-represented, appealed a summary judgment motion dismissing her action against the defendants. The plaintiff’s action against the various defendants pertained to events that occurred over several days. With regard to the defendant hospital, Royal Victoria Regional Health Centre, the defendant was granted partial summary judgment.
To ensure trial fairness and the preservation of proper litigation, it was justified to impose a condition to ensure that expert reports are written solely by their author and not by a ghost writer, as has become more common and problematic in litigation recently.
Conflicting Expert Evidence and the Importance of a Jury Notice in Summary Judgment Motions.
This is a decision about when it is appropriate to strike a jury on the grounds of complexity.
A chain of events triggered by an accident and followed by an assault falls under the definition of “accident” under the SABS according to the latest LAT decision.
Clarifying the operation of s.4 of the Occupiers’ Liability Act.
This appeal to set aside the dismissal order was allowed on the basis that prejudice to the defence existed regardless of the Appellant’s delay. The factor of delay by itself is not sufficient to deny the Appellant’s request to reinstate the action.
Is a Personnel File Relevant? What happens when the Adjuster on the claim no longer works for the Insurance company? Do you have an Executed Discovery Plan on your LTD court actions? These and other questions were addressed in a recent Undertakings and Refusals Motion against Sun Life, raising jurisdictional issues in the context of a Quebec-administered LTD Claim.
In this case, the Ontario Superior Court dismissed a summary judgment motion for a novel claim involving a plaintiff who suffered psychological injury upon hearing the aftermath of her daughter’s motor vehicle accident via telephone…
This case involves the rare intersection between injury law and video games!
Plaintiffs in Historic Sexual Abuse Claim Granted Partial Summary Judgement on the basis of Guilty Plea to Criminal Charge
Motion by Plaintiff to determine whether OPCF 44R applied to her claim, in which case her insurer, TD would be required to respond. Companion motion by defendant Lombard, seeking to have cross-claim against it by TD dismissed on rounds of zero liability.
In this case, the plaintiff brought a motion seeking an order to compel the defendant, Aviva Insurance Company of Canada (“Aviva”), to be examined first despite the fact that Aviva was the first party to serve a notice of examination.
The court ordered costs for the plaintiffs on a substantial indemnity basis following their successful motion against the defendant, Aviva Insurance Company.
This decision concerns a request to add issues to an arbitration proceeding resulting from an Application for Arbitration, filed February 18, 2016.
This is a summary judgment motion brought by the Defendant for a determination that the Plaintiff is statute barred from commencing an action beyond the two year period from the date of denial. Here, the Plaintiff applied for LTD benefits from the Defendant and received monthly payments from September 2008 through October 2010. The Plaintiff was denied benefits in October 2010 following obtaining the results …
In this case, the Plaintiff was involved in two motor vehicle accidents. The first accident caused mostly soft tissue injuries to the Plaintiff, while the second collision caused serious injuries.
In this case, Master Josefo ordered production of a document over which the defence had claimed solicitor client privilege…
In this case, Master Josefo ordered production of a document that was created by the defendant six months after the commencement of litigation. To support their privilege claim, the defence tendered affidavit evidence from counsel about what he had been told by the author of the document.
The applicant was a Quebec resident involved in a motor vehicle accident in Ontario on March 12, 2017. She was a passenger in the collision and received medical treatment in Ontario.
The Ontario Court of Appeal held that a solicitor’s negligence claim based on improvident settlement in a personal injury action was not discoverable until new counsel advised the plaintiff of it after obtaining an expert medical-legal opinion.
Advertising that is misleading or deceptive in nature will generally be met with a short suspension.
In motions to exclude one party from another party’s discovery, the onus is on the party seeking the exclusion order to demonstrate that there is a risk that evidence will be tailored.
The decision of Lee v. Castro et al. serves as an important reminder on the strict application of limitation periods, particularly when it comes to the discoverability doctrine.
Examining whether former employees may be designated as professional witnesses and paid to prepare for and attend trial.
This was a medical negligence claim against a general surgeon following a Hartmann’s procedure and colostomy reversal. Failure to secure informed consent, and failure of surgical and post-operative standard of care were at issue.
The Divisional Court provides an analysis on the law on spoliation and the relevance of medical records more than 5 years pre-accident.
In this case, the decision of the Divisional Court stems from the defendants’ appeal on a motion to dismiss their request to remove counsel for the plaintiff. The defendants’ asserted that plaintiff’s counsel was in a conflict of interest or, alternatively, a witness at trial…
Court of Appeal reverses 1 year limitation imposed by SCJ for some Occupier’s Liability claims
Released September 1, 2015 | CanLII This action arose out of a recreational hockey incident in which the plaintiff, Robbie Levita, suffered a fractured right tibia and fibula after being checked by the defendant, Alan Crew, while playing in a league operated by True North Hockey Canada. Levita claimed that Crew checked him into the boards from behind, either intentionally or recklessly, in contravention of the rules …
Interest rate on litigation loans reduced due to failure by loan company to comply with Consumer Protection legislation.
Released July 29, 2015 | CanLII The Plaintiff commenced an action against the Defendants after sustaining injuries in a motor vehicle accident. State Farm Mutual Insurance Company (“State Farm”) denied coverage to the Defendants and had itself added as a statutory third party in the action, but refused to provide detailed information as to why it denied coverage. The Plaintiff sought an order requiring State …
The COVID-19 pandemic has triggered a proliferation of motions, generally by plaintiffs, to strike jury notices in personal injury cases so that trials can proceed virtually and on schedule. While decisions on such motions have gone both ways, depending on the facts and location of each case, timely access to justice is a recurring theme in each one. However, a recent decision out of Belleville may prompt a different kind of motion to strike a jury notice, one that targets cost effective access to justice…
Denied motion for summary judgment about tavern liability.
Released November 19, 2015 | Decision It was an unusual situation. Einarsen parked her vehicle on a slope and engaged the emergency brake. She entered the pub. About ten minutes later, her unoccupied automobile rolled down the slope of the parking lot. The Plaintiff, Little, was struck from behind by the rolling car as he walked across the parking lot. The vehicle continued to roll …
Barrie jury returns $7 million verdict for young plaintiff in an action against school bus company.
Appeal from Trial Decision (Jury) Regarding Findings of Contributory Negligence.
Full Decision Counsel for the Appellant Linda Sue Pearce: Jeffrey R. LeRoyCounsel for the Respondent Shayne Berwick: Brian Cameron Counsel for the Respondent The Personal: Louis Covens Counsel for the Respondent Ruo Hang Liu: Luke Hamer Heard by: Justice David H. Doherty Justice Janet M. Simmons Justice Gladys I. Pardu This was an appeal from the Order of Justice Phillip …
This is a motion to withdraw an admission made during oral submissions at a previous summary judgment motion and to amend certain paragraphs of that summary judgment decision.
A municipality will only be liable for failing to salt and clear road of snow where it had actual or constructive knowledge that road conditions create unreasonable risk of harm to users of a highway, and where the municipality unreasonably neglected that risk. Furthermore, in determining the proper reasonable response, municipalities should not be limited in their response by the minimum maintenance standards. Municipalities should consider the circumstances and determine if the condition of the road poses an unreasonable risk of harm to reasonable drivers. Whether municipality’s actions are reasonable or not depends in part on resources that were available to the municipality.
In this case the Ontario Court of Appeal granted the Plaintiffs’ request to stay the Divisional Court’s order reinstating the Defendants’ jury notices.
The Plaintiffs brought a motion to strike the jury notice after their ten-week trial was adjourned indefinitely as a result of the COVID-19 pandemic.
This Divisional Court appeal decision serves as a cautionary tale and provides some guidance on the type of evidence that should be advanced on a motion for an order to strike the jury in light of the unprecedented COVID-19 pandemic, as well as the sufficiency of reasons for such a determination.
In a groundbreaking decision, the Court of Appeal for Ontario in Louis v. Poitras, 2021 ONCA 49, set aside the Divisional Court judgment and restored the motion judge’s order to strike the jury by reason of delay arising from the COVID-19 pandemic.
Loye v. Bowers is a ruling on costs by Justice J. R. H. Turnball in which the defendant was seeking costs from plaintiff’s counsel personally following the trial of a personal injury action.
Recent decision about the right to commence actions and arbitrations post-April 1, 2016
Court of Appeal Upholds Liability in Complicated Causation Occupiers’ Liability Case
Justice Corthorn dismissed the defendant doctor’s motion for leave to bring a motion for summary judgment at the beginning of the second week of trial.
A recent LAT decision was overturned and the law regarding compliance with the notice requirement under section 44 (for insurers’ examinations) was clarified.
Court of Appeal Denies OTLA Intervention in Historic Abuse Case and Misses Opportunity to Rectify Injustice
A marginal expansion of the upper limit of damages for loss of care, guidance, and companionship for the loss of an adult sibling.
Recent Court of Appeal decision looking at limitation periods for CAT benefits under the SABS.
The Court of Appeal upheld the trial judge’s ruling that Starbucks was an occupier of a municipal sidewalk leading into a Starbucks patio. The Court noted that in order for an adjacent property owner to be an occupier, the adjacent property owner’s actions must constitute more than “merely clearing adjacent public sidewalks of snow and ice, whether in compliance with municipal by-laws or otherwise.”
This action arose from a serious back injury suffered by the Plaintiff, George MacPherson, on May 15, 2012, when he fell off the roof of the home of one of the Defendants, Sylvia Marie-Louise Samuel.
This matter is related to an appeal brought before the Divisional Court regarding a Licence Appeal Tribunal (LAT) decision denying Mr. Madore eligibility for benefits under the SABS
Pierringer Agreement does not release third parties.
This ruling involves a motion brought by the defendant for leave to call more than three experts at trial, and more specifically, a physiatrist and an orthopaedic surgeon.
Released January 8, 2015 | CanLII This case contains a good refresher on the principles which will be considered in threshold motions. Justice Firestone set out the following principles: the trial judge is not bound by the jury’s verdict, but is a factor he or she can consider in determining the threshold motion; “permanent” does not necessarily mean forever until death; a permanent impairment is a weakened …
The appellant argued that the requested amendments to the statement of claim should not be allowed because they constitute a new statutory cause of action and are sought after the applicable two-year limitation period had expired.
At the conclusion of trial, the defendant brought a threshold motion and called two expert witnesses in support of the motion: Dr. Soric and Dr. Reznek. The Court found that the evidence from both witnesses contained serious flaws and expressed concern regarding how the majority of their income was derived from conducting medical-legal work for defendants. The motion was denied.
This was a threshold motion brought by plaintiff’s counsel during jury deliberations. The question before the court was whether the question was rendered moot as a result of the jury’s nominal award.
Mandel v. Fakhim[1] involves an appeal from a trial decision, heard before the Divisional Court. The action related to injuries resulting from a motor vehicle collision, which occurred on July 4, 2009. The jury verdict at trial was delivered on November 18, 2016, where the jury awarded $3,000 in damages to the plaintiff, for pain and suffering, and nothing for past or future lost income, future care expenses or housekeeping services.
The Superior Court holds that evidence concerning post-accident loans taken by the Plaintiff to pay medical, rehabilitation, or other expenses of any kind is NOT admissible since those losses are too remote, not reasonably foreseeable to the Defendants at the time of the accident, and therefore, not recoverable as damages.
Arbitrator finds alleged ‘staged accident’ to have occurred without misrepresentation.
This was a decision involving two motions brought by the defendants Durham Children’s Aid Society (“Durham CAS”) and Hawk Residential Care and Treatment Homes Inc. (“Hawk Homes”) pursuant to Rule 21.01(1)(b) to strike the plaintiff’s Statement of Claim as failing to disclose a reasonable cause of action
After The Event Insurance Premium Not A Compensable Disbursement and New Prejudgment Interest Rate Not Retroactive
In this case, the discovery principles with respect to medical malpractice cases apply equally to solicitor’s negligence cases. Master Sugunasiri’s endorsement addresses a refusals motion brought within the context of a solicitor’s negligence case. The plaintiffs alleged, inter alia, that the defendant solicitor negligently drafted a will for an elderly testator who was incompetent and subjected to undue influence.
This is an appeal from the decision of Di Luca J., of the ONSC dated January 17, 2017 dismissing this Plaintiffs claim for an injury suffered at the Barrie Winterfest snow slide.
Court of Appeal substitutes its own finding on liability in 2001 MVA case.
This is a helpful case about how to succeed on motions for default judgment in the context of personal injury actions.
Judge holds that, in some circumstances, LTD benefits are deductible from past and future income loss in a medical malpractice claim.
Mazzucco v. Herer Signals a “New Era in the Private Insurance Exception”
In this case, the 52-year-old plaintiff broke his ankle when he slipped on an icy sidewalk in from of a post office in Huntsville on December 20, 2017. He observed a broken eavestrough on the nearby Canada Post building causing water to run onto the sidewalk where he fell. He mentioned the eavestrough to his counsel eleven months after contacting them…
The plaintiff brought a motion to have counsel for the defendant removed due to a potential conflict of interest. The plaintiff was a personal injury lawyer who had had discussions about his case with lawyers from an insurance defence firm. This insurance defence firm was subsequently hired by the defendant’s insurer in the plaintiff’s personal injury action. The plaintiff sought defence counsel’s removal from the action, owing to the aforementioned discussions.
The Defendant brought a motion to compel the Plaintiff to undergo a neuropsychology medical-legal examination in Mississauga. The Plaintiff resided in Ottawa, and objected to the required travel to attend this examination.
Court of Appeal finds no vicarious liability on driver and owner of vehicle when front seat passenger seizes the steering wheel and causes a collision.
The plaintiff/appellant broke his arm when he was five years old and the defendant/respondent was an orthopaedic surgeon whose negligence in the treatment of the plaintiff’s arm resulted in permanent deformity
In Part I of my reporting on this case, which can be found here, I looked at the court’s decision regarding the award of damages for loss of future earning capacity. The same decision also addressed the circumstances of when an award of damages for loss of housekeeping capacity should be awarded and how.
In this appeal of a personal injury action, the respondent plaintiff was awarded substantial damages as a result of a relatively minor motor vehicle accident that resulted in chronic pain, anxiety and depression.
In this case, the Court of Appeal for Ontario issued an important warning about the importance of responding to production orders in a timely manner…
Discoverability principle extends limitation period when Plaintiff not advised of serious condition by doctor
the Plaintiffs had expert evidence from an occupational therapist as to necessity, cost and duration of different and additional treatments they each required, but that were not the subject of dispute in this ruling.
Date Heard: May 1, 2018 | Full Decision [PDF] The appellants are two former employees of the respondent MD. They were hired in 2003 and 2005 respectfully to provide financial services to MD’s clients. Each signed identical non-solicitation clauses as follows: Non-Solicitation: The Employee agrees that the Employee shall not solicit during the Employee’s employment with the Employer and for the period ending two (2) years …
In this case, the defendant moved for an order excluding all evidence referring to a brain SPECT scan (“single-photon emission computed tomography”) undergone by the plaintiff in order to detect brain injury. The plaintiff opposed the motion…
The Plaintiff was catastrophically injured when she was hit by a car on September 12, 2002. The driver of the car and his wife, were joint owners of the car which was ostensibly insured by the Defendant ING Insurance. But, almost two months earlier, ING had purported to unilaterally terminate the insurance contract, based on non-disclosure of a driving record…
In this unanimous Court of Appeal for Ontario decision, a three-judge panel consisting of Justices R.G Juriansz J.A., D. Brown J.A., and G. Huscroft J.A. considered whether it was appropriate for the Trial Judge to recognize a new freestanding tort of harassment and found that the lower court erred in doing so.
The Divisional Court allowance of an appeal of an interlocutory order for productions from the Licence Appeal Tribunal.
The Licence Appeal Tribunal has determined that an injury at a privately-organized motocross competition is an “accident” and that the injured party is, therefore, entitled to accident benefits from his insurer.
The Arbitrator determined that the Applicant’s post-denial treatment history was a key consideration in determining that the treatment plan was reasonable and necessary.
Consent to operate a vehicle will not be found absent an actual understanding between owner and driver.
The Court of Appeal affirmed that the term “authorized by law” applies only to licencing and restrictions imposed by the Ministry of Transportation. A driver who operates a vehicle with alcohol in his system, in breach of his probation order, is not in violation of statutory conditions.
In this decision, despite the climbing numbers of infected individuals and the great risks posed to individuals (and particularly those with complex medical pictures), Master Jolley ordered that it was necessary that the Plaintiff attend two assessments in-person, during the height of the pandemic…
Accident Benefits Settlement Deducted from Tort Award as a Result of Itemized Settlement Disclosure Notice
The Divisional Court concludes that accident benefit settlements encompassing both past and future benefits are deductible against global damages awards without regard to apportionment between past and future amounts.
Counsel for Respondent: Antonio Meringolo (Plaintiff)Counsel for Applicant: Gloria Shu (Defendant) Case Name: Mills ats. Spring Decision date: February 20, 2019 Full Decision Section. 31 WSIA ‘Right to Sue’ Application – Fails to Knock Out MVA Claim CONTEXTUAL HISTORY On November 29, 2013, the Respondent was injured in a motor vehicle accident at 10:20 am while travelling W/B on County Road 21 in Innisfil, ON. …
In a recent decision, the Licence Appeal Tribunal (the “LAT”) held that the applicant’s concussion removed him from the Minor Injury Guideline (the “MIG”) despite the effective resolution of his concussion symptoms.
This decision arises from a 2019 motor vehicle collision in which the plaintiff alleged that the defendant lost control of his vehicle and crossed over the centre line, colliding with the plaintiff’s vehicle. The plaintiff alleged that she suffered injuries including a concussion, whiplash, other soft tissue injuries, chronic pain and psychological injuries including depression.
The courts will compel a plaintiff to attend a defence medical examination for a “matching” report where failure to do so would result in unfairness to the defendant.
In Moore v. 7595611 Canada Corp, a jury awarded two parents $250,000, each, for the loss of their daughter. The defendants appealed the jury’s award and the Ontario Court of Appeal had to decide whether to intervene…
FSCO preliminary issue hearing decision about limitation periods for minors under the SABS.
Moran v. Fabrizi arises from a motor vehicle collision that occurred when the defendant, Ottavio Fabrizi, ran a red light and collided with a minivan that the plaintiff was a passenger in. Just before the collision, Fabrizi was the victim of a road rage incident precipitated by the third party, Dennis Chu.
Court applies principles of jurisprudence regarding multiple defence medical assessments
An example of successfully excluding evidence of a biased defence life care expert at trial.
This is an Appeal from a Motion where Sun Life moves to dismiss the Plaintiff’s LTD Action on the ground that the Court does not have jurisdiction and that the proper forum is arbitration (LRBO) under the collective agreement.
In this Superior Court decision, the court removed a litigation guardian for a party under disability.
This case serves as an important reminder of the real (and potentially substantial) costs consequences for Plaintiffs, even when they are covered by adverse costs insurance policies.
In Musa v Carleton Condominium Corporation No. 255 et al., the issue was whether the Defendant contractor applied the road salt to the driveway and parking areas of the condominium in a sufficiently timely way to avoid or mitigate the formation of icy conditions that would put the residents at risk of injury through slipping or falling.
Defendants successfully added 6 years after action commenced; claim for delayed treatment was not discovered until counsel reviewed the Plaintiff’s medical records.
The plaintiff brought a contested motion to amend the Statement of Claim to add particulars to the facts that have already been pled, and add two additional defendants. The existing defendant physician also brought a cross-motion to have the action dismissed asserting no genuine cause of action and delay…
OPCF44R coverage deemed to act as excess coverage to home insurance policy following pedestrian MVA
In this case, the Respondent insurer, Western Assurance Company, denied a treatment and assessment plan for an in-home re-assessment of attendant care benefits and housekeeping benefits. The Adjudicator found in favour of the Applicant…
Mohammad did not rebut the presumption of consent and he was held vicariously liable for the damages caused by Vahid’s operation of the rented vehicle
Ontario Court of Appeal holds that the limitation period after a property loss starts to run on the date the loss was discovered and not on the date of denial of coverage by the insurance company.
In this case, the Plaintiff was attempting to access a business, but the snowbank created by the city blocked her route to the sidewalk. She decided to cross the snowbank and seriously injured her leg…
This recent appeal decision provides further guidance on the use of surveillance and Facebook posts since the seminal case of Iannarella v. Corbett, [2015] ONCA 110, which dealt primarily with disclosure obligations associated with surveillance on which a party later intended to rely.
Plaintiff’s attempt to pre-screen jurors for “connection” to insurers refused.
On the threshold motion, the trial Judge found that Dr. Richard Hershberg was not a credible witness and gave his evidence much less weight than the evidence of the Plaintiffs’ psychiatrists.
Denied request by defendant to conduct a physiatry IME.
The LAT reversed its decision which would have barred the applicant from proceeding with a claim for benefits.
Heard April 25, 2015 | Document Bank The Applicant had been receiving CPP disability benefits since 1994. Approximately sixteen years later on March 1, 2010, the Applicant was injured in a motor vehicle accident. Following this accident, the Applicant continued to receive CPP disability benefits. She also applied to her automobile insurer for non-earner benefits. A preliminary issue arose as to whether the Insurer was entitled to …
Letter of instruction to defence medical/legal expert not ordered produced until defendant decides to call that expert at trial.
This reconsideration decision helps shed some more light on the level of behaviour that will attract costs at the Licence Appeal Tribunal (“LAT”).
In this case, the appellant was moving out of the respondent’s home after their relationship ended. He tripped on the sidewalk while carrying his freezer out of the home and injured his ankle. He sued for damages under the Occupier’s Liability Act. The respondent moved for summary judgement and was successful in dismissing the claim…
Court refuses plaintiff’s motion seeking to inform the jury about the statutory deductible which applies to general damages awards.
Full Decision Material Facts: This case revolved around a plaintiff, Barry O’Brien, who brought an action for damages as a result of a motor vehicle accident which occurred on October 14, 2010. At the conclusion of trial, a jury awarded Mr. O’Brien general damages in the amount of $50,000, damages for past loss of income in the amount of $30,000 and damages for future care …
This is a Summary Judgment brought by the Defendant employee, dismissing the Plaintiffs’ claim that she solicited her former employers’ clients.
The Court of Appeal determines whether the insurer properly terminated the policy of insurance on the vehicle at issue where the owner of the vehicle is not the named insured under the policy
This decision confirmed benefits coverage was available to an operator of an uninsured vehicle involved in a non-accident incident with another, insured vehicle.
Ms. Adi Perets was involved in a motor vehicle collision while she was driving a rental vehicle from the Appellant in this case, Enterprise Rental Car (Enterprise).
In this case, the Superior Court of Justice provided guidance on determining where to start a lawsuit when an injury occurs outside of Ontario…
Ilaz Osmani and Fakete Osmani, the plaintiffs were involved in a motor vehicle collision (MVC). They claimed damages for injuries they allegedly sustained from the incident. After a nine-day jury trial, the verdict was that the subject MVC did not cause or contribute to any ongoing pain and impairments suffered by the plaintiffs.
In this case, Justice Bell struck the jury after seven weeks of trial, and the plaintiff’s counsel’s closing address to the jury…
In this case, the Licence Appeal Tribunal decided in favour of the Applicant, who was injured when she fell through a gap in between her house and her backyard patio after the ladder had been detached as a result of a motor vehicle that struck it moments before her fall.
On reconsideration, the executive chair found that attendant care benefits were payable on an ongoing basis
In what is believed to be the first LAT decision on catastrophic impairment, Vice-Chair Flude held that the applicant, who had been intubated and sedated before having GCS scores of 9 or less recorded, had suffered a catastrophic impairment.
In this recent Ontario Court of Appeal decision, the Court overturned the lower court’s findings relating to allegations of historic physical abuse, and ordered a new trial…
OPCF 44R Claim Dismissed on Summary Judgment Motion, OAP Claim Survives
Released Octiober 8, 2015 | Full Decision [OTLA Document Bank] This action in medical negligence was brought following an incident where the plaintiff, Rosetta Parasiliti, injured her hand while walking a friend’s dog. She suffered three comminuted fractures to three left fingers. The attending physician, Dr. Lee performed a closed reduction and casted the hand on August 31, 2008. On September 4, 2008, Ms. Parasiliti …
The Plaintiff commenced an action for payment of disability benefits from the Defendant. The Defendant brought a motion for summary judgment, arguing the action was barred by the policy and/or the Limitations Act. The Court granted the Defendant’s motion for summary judgment.
Recent decision of the Superior Court of Justice on a threshold motion in a chronic pain case.
After being released from the action, the defendants were unsuccessful on their motion for costs of the action.
Plaintiff’s motion to add winter maintenance company after the two year limitation period refused due to lack of reasonable due diligence.
In dismissing a motion for a mistrial based on the jury conducting internet research, the court held that mistrials should be granted only as a last resort and the corrective charge was sufficient to ensure a fair trial.
This is a decision about default judgment between crossclaiming defendants.
In a recent costs endorsement against Aviva, the Court held that insurers who took positions on modest claims that necessitated a trial should not be allowed to rely on a strict application of the proportionality principle in determining costs. The Court held that as Aviva had made a tactical decision to reject a Rule 49 offer that the Plaintiff beat at trial, it should bear the full magnitude of the consequences of that strategy. Although the Plaintiff was ultimately awarded only $20,414.83 for her damages, the court ordered a costs award of $237,017.50 payable to the Plaintiff.
Pursuant to s. 7(3)(b) of the SABS, post-accident business income is deductible from the claimant’s IRBs.
This medical malpractice case was largely resolved by way of a settlement. However, the parties required determination of several issues in relation to management fee and tax gross-up awards and calculations.
An interesting decision on the entitlement to insurance proceeds from an After-the-Event insurance policy and dealing with a client who is under a disability.
In this case, entitlement to After-The-Event Legal Protection Insurance Policy funds Awarded to the Insurer.
This is a trial decision dealing with maternity, return to work, accommodation and constructive dismissal issues in the realm of the ESA and OHRC.
The courts will apply the standard of care of a careful and prudent parent in cases of school board negligence. The application of that standard depends on the nature of the activity and students.
The defendants failed to overturn the trial judgment awarding damages over failings in pre-natal maternal monitoring.
This action arose from a 2015 rear end motor vehicle collision. Liability was admitted. The issues at trial were threshold and damages. The defendant took the position that the plaintiff sustained minor soft tissue injuries which resolved within six months of the accident and she had returned to most, if not all of her pre-accident activities…
This hearing before the Licence Appeal Tribunal dealt primarily with the issue of whether the Applicant’s injuries were predominantly minor within the meaning of the SABS. The Applicant submitted a number of medical and rehabilitation treatment plans above the $3,500.00 available under the MIG for claimants with predominantly minor injuries…
The Plaintiff was injured in a motor vehicle accident. The matter proceeded to trial. Liability and damages were in dispute. Questions were presented to the Jury. Defence counsel took the position that the Jury should be asked to particularize the Defendant’s negligence, and to also particularize which of the Plaintiff’s injuries were caused by the crash.
Despite the accident occurring in Brampton, and the Plaintiff and the Defendant both residing in Brampton, the Court dismissed the Defendant’s motion to have the action transferred from Toronto to Brampton.
Heard: By written submissions. | Full Decision [PDF] In Prabaharan v. RBC General Insurance Company, 2018 ONSC 1186, Justice Stinson ordered the defendant to pay $2,600 in costs as the result of the defendant’s “flagrant disregard” for the Rules of Civil Procedure in failing to adequately prepare for a pre-trial conference (“PTC”). Defence counsel had failed to request defence medical assessments until one week before the …
The plaintiff, Breanne Pridmore, was severely injured riding as a passenger on an all-terrain vehicle (“ATV”) driven by her friend, Tyler Drenth, in March 2014. They were riding along the shoulder of Bird Road, a rural highway road, when she was thrown from the ATV. She suffered complete paraplegia.
Aviva denied costs after successful trial because of hardball approach.
The Plaintiff sought a declaration of catastrophic impairment and continued entitlement to Income Replacement Benefits after the Post 104 week mark of the accident.
The jury awarded $150,000 for pain and suffering damages where the Plaintiff suffered from chronic pain and had returned to work. After the jury delivered its verdict, defence counsel brought a threshold motion which was dismissed by the court
In this appeal, the Court of Appeal found that even if the plaintiff’s offer to settle does not specifically provide for the inclusion of costs, the plaintiff would be entitled to it pursuant to rule 49.07(5)(b). Further, even if words in the offer are believed to be ambiguous or unambiguous, the meaning of those words can only be properly ascertained by considering the entire context in which the offer was made.
Must quantify pre-morbid activity time commitments to successfully claim an NEB at the LAT
A must read for anyone arguing non-earner benefit entitlement before the LAT Date Case Heard: Written Hearing: May 15, 2017 | Full Decision [PDF] This is a recent non-earner benefit eligibility case from the LAT. It provides a helpful guide on how to argue a non-earner benefit case before the LAT. At the outset, the adjudicator addressed a number of preliminary procedural issues. It allowed …
A decision has been released by the Licence Appeal Tribunal, further narrowing the definition of an accident…
The plaintiff was injured in a trip-and-fall incident while visiting a house located in North York and, as a result, she suffered injuries. She was attending a scheduled dental appointment with the defendant Anna Shifrin, who runs a dental practice from the premises. A one day undefended trial took place on November 3, 2022.
Justice Di Luca disallows “specious” disbursements.
Discoverability is triggered when the plaintiff knows that some damage has occurred and she has identified the specific tortfeasor who caused the damage. Knowledge of the damage alone does not trigger the limitation period.
This is a summary for OTLA members with trials fast approaching in Central West – specifically Milton and Peel (Brampton). There are three recent decisions from late February and early March. These cases may be of assistance to OTLA members who are currently considering bringing motions to strike jury notices in these jurisdictions…
Ladies and Gentlemen, start your engines….and your Statement of Claims. This recent summary judgement dismissal suggests that an insurer’s delay in paying a benefit will trigger the commencement of the limitation clock, even where there has not been a “clear and unequivocal denial” of the disability claim.
The limitation period for disability benefits does not require a clear and unequivocal denial according to Justice Bale in his fact-specific decision on Summary Judgment motion.
In an action for disability benefits, a plaintiff does not get the benefit of a rolling limitation period because the material facts upon which the action rests will have arisen at the time the plaintiff alleges that he or she first became entitled to periodic payments and it would be unfair to require the insurer to litigate those facts for a potentially unlimited period of time.
This application addressed the priority of coverage between a Long-Term Disability Carrier and an Accident Benefits Carrier. The Respondent, BC Life & Casualty Company, took the position that it was entitled to deduct Income Replacement Benefits from their calculation of the Applicant’s Long-Term Disability Benefits. The Applicant brought an application for a declaration that this was inappropriate. As per both the Insurance Act and the …
FSCO Arbitration decision reviewing the definition of “accident” under the SABS.
The Defendant brought a Motion in this product liability case seeking to commence a Third-Party Claim against the manufacturer nearly two years after the Statement of Claim was issued.
Robinson v. AIG Insurance involves an appeal and judicial review before the Divisional Court, regarding a decision made by the Licence Appeal Tribunal (LAT).
Corporate restructuring results in constructive dismissal of employee.
This action proceeded as a judge-alone damage assessment. The impaired Defendant entered the intersection on a red light, striking the driver side of the Plaintiffs’ vehicle, containing 5 family members. The driver mother sustained lumbar fractures. The 5 month old son sustained fatal injuries.
The Appellant, Mr. Purtill is the Defendant in this matter who drove his motor vehicle while impaired and struck the Plaintiff vehicle, causing the death of a young child and serious injuries to other family members.
Counsel must be aware of the severe consequences of failing to accurately estimate the time required for Trial.
Released September 8, 2014 | CanLII The insureds, Victor Romanko and Teareasa Romanko, were Ontario residents were injured in a motor-vehicle accident while driving in New York State. The insureds brought an action in Ontario against the driver and owner of the other vehicle involved in the accident, Dennis Nettina, a resident of New York State, and the Romanko’s automobile insurer, the Co-operators General Insurance …
The mother pregnant with the deceased’s child is entitled to claim pursuant to section 61 of the Family Law Act.
Unidentified carrier added to claim Five Years Post-Accident.
In this case, the Court of Appeal for Ontario confirmed that a claim against an insurer for indemnification under s. 265 of the Insurance Act does not start to run until the insurer fails to satisfy a demand for indemnification…
In this case, the trial began in March but it was brought to a halt due to COVID-19. It continued in May and became the first trial conducted electronically with witnesses and cross-examinations in the Federal Court.
The respondent brought a motion to quash the summons and change the format of the LAT hearing. The tribunal denied the motion to quash the summons and ordered the hearing to proceed in-person with attendance of the adjuster to be examined on the claim of Special Award.
A plaintiff is obliged to exercise reasonable diligence to secure the name of a doctor who may have participated in negligent care to satisfy the requirements of the Limitations Act.
Plaintiff not entitled to particulars of surveillance before her examination for discovery where the Defendant was first to serve sworn affidavits of document and notice of examination in accordance with rule 31.04.
The Divisional Court provides guidance on the interpretation of s. 61 of the SABS.
A refusal to pay a benefit that stems from a period of non-compliance pursuant to section 33 of the SABS can trigger a section 56 limitation period.
The bar for special awards at the LAT may have just been lowered in the wake of this recent LAT decision holding “there was a failure on the part of Unica or its agents to ask the relevant questions”…
LAT upheld the limitation period for denied CAT Benefits. It held that a catastrophically impaired Applicant missed the two year limitation period to dispute the Insurer’s refusal to pay housekeeping and attendant care benefits.
The Supreme Court of Canada held that an expert’s diagnosis of a psychological injury was not required for the Plaintiff to succeed in recovering damages for same.
In this case, after a series of early successes by Plaintiffs seeking to strike the jury, the recent decision of Justice Kimmel in Saadi v. Silva, is another in a growing list of cases where such requests have been denied.
Full Decision Counsel for the Applicant: Gregory Gilhooly Counsel for the Respondent State Farm: Todd McCarthy Counsel for the Respondent FSCO: Martina Aswani Heard by: Justice Julie A. Thorburn Justice Katherine E. Swinton Justice Jill M. Copeland Justice Jill M. Copeland This was a judicial review of the decision of Director’s Delegate Evans with respect to an entitlement to Income Replacement Benefits. The …
In this case, the Plaintiffs are individuals who were injured after a Greyhound bus they were riding in as passengers ploughed into the rear of a tanker truck and became entangled in a multi-vehicle collision on highway 417, in the Province of Ontario, on January 27, 2014. The litigation involved as much as twenty-six (26) defendants at one time.
An insurer cannot rely on its specialized knowledge of jurisprudence to advance an interpretation of the policy that goes beyond the clear words of the policy as understood by an average person.
Hearing loss results in two marked impairments and entitlement to non-earner benefits despite return to work.
The court outlines the legal test that must be met before counsel can obtain disclosure of the communications between counsel and their experts.
Released June 8, 2015 | CanLII This eight-day motor vehicle injury trial proceeded before the Honourable Mr. Justice F.L. Myers and a jury in Toronto in January and February 2015. Liability was admitted. The jury awarded the plaintiff $30,000 for general damages but nothing for his claims for past and future loss of income or for future care. Justice Myers subsequently granted the defendant’s threshold …
This is a decision about the credibility of interested witnesses, the standard of care to be applied to children, and generally accepted inferences.
The life-altering impact of a mild traumatic brain injury, despite the Plaintiff’s return to work and surveillance evidence at trial showing the Plaintiff carrying on a normal life.
This appeal to set aside a dismissal granted at a summary judgment motion was allowed on the basis that the respondents failed to present evidence going to the merits of their defence but instead attempted to compel the appellant to deliver an expert report and show that she has not done so.
A successful motion to add an FLA plaintiff to the action more than 4 years after the motor vehicle accident.
Released June 5, 2015 | CanLII In this most recent installment in the Scarlett saga, the Divisional Court reviewed the decision of Director’s Delegate Evans from November 28, 2013. That decision had overturned the original Arbitration decision of March 26, 2013. The Director’s Delegate had remitted the matter to be heard in full by a different arbitrator. Mr. Scarlett sought to reinstate the Order of …
This was a summary judgment motion in which the defendant sought to have the motor vehicle action dismissed for a missed limitation period.
Appeals from the Orders of Tzimas J., and Mccarthy J., Ordering that liability waivers offended s. 7(1) and 9(3) of the Consumer Protection Act.
In Schroeder v. Co-operators General Insurance Company, the Ontario Court of Appeal reaffirms that the limitation clock for underinsurance claims does not start to run until a demand for indemnification is made and goes unsatisfied.
In Security National Insurance Co v. Thomas, the insurer paid income replacement benefits to the insured, Aklilu Thomas, following a collision that occurred on June 1, 2018. Partial repayment of benefits was subsequently sought by the insurer and the dispute went to the Licence Appeal Tribunal (the “LAT”).
City of Toronto ordered to produce, inter alia, GPS records post-incident, details about prior lawsuits and when field inspectors were trained.
The defendant brought a motion pursuant to Rule 26.02(c) of the Rules of Civil Procedure for an order granting the defendants leave to amend their statements of defence to plead the legal doctrine of spoliation. Justice Turnbull J. adjourned the motion so that the defendant could return with a proper evidentiary basis to support the motion.
Litigation Cost Protection will not suffice as ‘Security for Costs’
Insured not catastrophically impaired due to pre-existing mental health issues
Plaintiff’s Claim Dismissed due to Insufficient Evidence on Summary Judgment Motion
In this recent decision, the Divisional Court overturned a previous Preliminary Issue Decision and Reconsideration Decision of the Licence Appeal Tribunal (“LAT”) that stated that an applicant was statute-barred from adjudicating entitlements to Non-Earner Benefits (“NEB”) due to the two-year limitation period…
There is no common law duty on a group disability insurer to inform an insured of each potential claim for benefits.
The limitation period does not begin to run when the Office of the Public Guardian and Trustee becomes a mentally incapable person’s statutory guardian of property. The limitation period begins to run when the guardian of property has determined that there is a basis for exercising their authority as litigation guardian and thereby becomes the mentally incapable person’s litigation guardian.
This is a threshold motion in which the plaintiff had pre-existing osteoarthritis in his left knee. The plaintiff was successful in establishing the subject car accident caused his asymptomatic left knee to become symptomatic and thus his injuries met threshold.
Released December 30, 2014 | CanLII The plaintiff, Misty Shawnoo, suffered a catastrophic brain injury following a motor vehicle collision that occurred on December 12, 2010. As a result of the collision, she suffered from ongoing issues with impulsiveness and risk-taking behavior sufficient to warrant constant monitoring and supervision. Ms. Shawnoo applied for attendant care benefits under the SABS from the defendant, Certas, for care provided …
This case deals exclusively with whether non-earner benefits (“NEBs”) are deductible from a tort award for loss of income (“LOI”).
Ms. Shuttleworth’s counsel received an anonymous letter claiming that before the decision was released, it was reviewed and changed by the executive chair of SLASTO.
Court finds that the limitation period in a minor’s claim runs from the date a litigation guardian is appointed and not when the litigation guardian’s identity is declared in a notice letter.
Released June 15, 2014 | CanLII Ms. Silvera – who had worked at Olympia Jewellery Corporation as a receptionist/administrative assistant – was fired after a two week absence from work due to dental surgery. At the time, she earned $28,000 a year, and had worked for the employer for a year and a half. She brought an action against Olympia for wrongful termination and against …
Master refuses security for costs to the defendants Released October 5, 2015 | Full Decision [Document Bank] The defendants brought a motion seeking security for costs from the plaintiffs in the motor vehicle accident action. The accident took place on April 7, 2006. The defendant rear-ended the plaintiff’s vehicle. The plaintiff suffered injuries. The plaintiff’s husband and two daughters were added to the action under s. 61 of …
Lawyers are permitted to write expert reports (and/or expert’s affidavits) for their litigation experts without piercing litigation privilege.
Sinclair v. Amex Canada Inc., 2023 ONCA 142 (“Sinclair”),involves an appeal by three Italian companies, Venezia Turismo, Venice Limousine S.R.L and Narduzzi e Solemar S.L.R (the “Italian Companies”), who sought to dismiss or stay an action brought by the respondents, a Canadian family, in the Superior Court.
This recent Superior Court decision highlights the underlying rules of ethical duties that counsel must uphold in the course of litigation.
Post Trial Costs Motion – Plaintiff and Defendant Costs are Set-Off – Mixed Results at Trial
A recent decision that speaks to the conduct of counsel with regard to discoveries…
No uninsured automobile coverage if injured in a vehicle owned by either the Plaintiff or its spouse.
Defendant insurer brings summary judgment motion on UMC coverage for car taken without consent. Owner of car’s husband injured as a passenger in the stolen car. Justice Newton finds person who took vehicle without consent is an “inadequately insured motorist” under OPCF 44. Defendant’s motion dismissed.
The defendant’s Anti-SLAPP motion to dismiss the defendant’s defamation lawsuit was dismissed. The defendant, and former wife of the plaintiff, publicly shared a post on Facebook alleging sexual, physical and emotional assault. While the statement was found to be a matter of public interest, the plaintiff successfully established that the claim had substantial merit and the defendant had no valid defence…
A Thorough Review of the Law Surrounding the Admissibility of Expert Evidence and Testimony.
Opening the door to FLA damages for mental anguish or sorrow?
Full Decision In Varriano v. Allstate Insurance Company of Canada, the Ontario Court of Appeal (ONCA) addressed whether a medical reason must be included in every denial of statutory accident benefits. The applicant, Nunzio Varriano, was injured in a motor vehicle collision in September 2015. He successfully applied to his auto insurer, Allstate, for income replacement benefits (IRBs). He returned to work two months later, …
This was a motion and cross-motion for summary judgment. The defendant driver sought to have the claim dismissed as against him and his numbered company. The Plaintiff’s insurer sought its release from the action under its unidentified coverage. In the alternative, it sought a ruling that the OPCF 44R was not triggered in the circumstances of this claim.
Although the Defendant succeeded on its summary judgment motion to dismiss a property loss action, Morgan J. comments on the inequity of the exclusion clause and awarded no costs.
In this case, the Ontario Superior Court recently considered whether two Plaintiffs sustained permanent and serious impairments of important physical, mental or psychological functions caused by a motor vehicle accident in accordance with the Insurance Act…
Despite the benefits and efficiency of using video conferencing for hearings, it is not appropriate in every case.
Can a statement of claim be adjusted to add a defendant to the action more than two years after the events giving rise to the claim occurs?
In this case, the plaintiff suffered soft tissue injuries that led to chronic pain and prevented him from working in the construction industry. The trial judge found in his favour and awarded $205,662 in damages plus costs and disbursements…
An April 13, 2016 decision by Justice Hackland in Ottawa has provided further guidance on the notice requirements before an insurer can perform a section 33 Examination Under Oath. A generic statement that the insurer requires an examination under oath to determine the insured’s entitled to statutory accident benefits will not suffice.
Court strikes Plaintiff’s Statement of Claim alleging bad faith and punitive damages by her insurer in the administration of her statutory accident benefits. The License Appeal Tribunal has exclusive jurisdiction at first instance.
Court of Appeal closes the door on independent bad faith claims arising from an insurer’s conduct in handling a claim for accident benefits.
In this medical malpractice appeal, the ONCA upheld a trial judge’s decision of joint liability where the physician “supported” the negligent decision of the main doctor.
This cost endorsement follows the settlement of a personal injury action ten days before the start of a scheduled three week trial. The parties agreed on the Plaintiffs’ damages of $75,000 and that the issue of costs and disbursements would be assessed by the Court.
Court orders production of expert’s and assessment centre’s records despite defence’s claim of litigation privilege.
In Stewart, the plaintiff’s motion seeking to compel production of an expert assessment company’s records dealt with the issue of whether an opposing party’s expert communications and drafts are protected by litigation privilege.
No duty of care on taxi driver to ensure inebriated passenger is wearing seat belt.
In this case, the Ontario Court of Appeal clarifies the law on causation when there has been a breach of a fiduciary duty – well, kind of.
Master restores matter to trial list notwithstanding a lack of explanation for delay
The limitation for pursuing unidentified motorist coverage does not begin to run until a demand to indemnify has been made and the responding insurer has failed to satisfy the claim.
This was an appeal of a decision by FSCO Director’s Delegate David Evans regarding the deductibility of post-collision income from the applicant’s income replacement benefits.
The Court of Appeal clarifies the causation question to be put to the jury in medical malpractice trials (and lots more). Released January 18, 2017 | Full Decision [CanLII] This action was brought by the surviving spouse of a 36-year-old woman, Rossana Surujdeo, who presented to hospital with flu like symptoms and died approximately 9 hours later. The cause of her death was a rare …
This is a decision about the admissibility of a 911 call after a motor vehicle accident for the truth of its contents.
The decision of Syed v. Petrie, 2020 ONSC 664 serves as an important refresher on the law of admissibility of surveillance at Trial for both Plaintiff and Defence counsel, particularly in relation to the late delivery of such reports.
The Licence Appeal Tribunal (“the LAT”) has determined that it does not have the power nor jurisdiction to award interim benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the ”Schedule”).
This arbitration was to determine whether monies received for providing attendant care to a child/family member constitute post-accident income that is deductible from the amount of the applicant’s income replacement benefits.
In this decision, the Divisional Court overturned the decision of the Licence Appeal Tribunal (LAT) and held that the Court of Appeal for Ontario’s decision
Superior Court rules Plaintiff will not be compelled to attend neuropsychological assessment by defence as a result of the Plaintiff’s impairments and inability to complete the assessment.
In this case, the Plaintiff had undergone a jaw surgery in 2004, and alleged that the surgery was performed negligently and without her consent. She commenced a personal injury action in relation to this procedure in February 2020. The Defendants brought a Motion for Summary Judgment seeking to dismiss the proceeding on the basis that it was not issued within the time periods as prescribed by the Limitations Act.
If you have other insurance which applies to a loss or claim, or would have applied if this policy did not exist, this policy will be considered excess insurance and we will not pay any loss or claim until the amount of such other insurance is used up.
The applicant, Vinh Thanh Du, was injured in an automobile collision on February 14, 2020. He sought benefits from his car insurer, Economical Insurance. Economical denied treatment plans for physiotherapy and massage therapy on the basis that the applicant’s injuries fall within the Minor Injury Guideline (“MIG”). A claimant is confined to the MIG if they sustain primarily minor injuries in the subject accident.
Duty to defend and indemnify after 10 months of representation and no new material facts coming to light.
The use of average wait-times as a defence to causation in a case involving a GP’s failure to refer.
Causation evidence in a medical negligence action – the admissibility of a cardiologist’s evidence on the average wait time for a stress test once a non-urgent referral is received.
Reimbursement of legal costs following the Defendants’ failure to mediate at an earlier stage, which unnecessarily lengthened the duration of the proceeding contrary to rule 57.01(1)(e).
In this case, the Divisional Court has weighed in on the applicability of the material contribution test for causation in the context of the Statutory Accident Benefits Schedule…
Trial win by plaintiffs in fatality arising from the delayed diagnosis of an internal hernia.
Released August 16, 2016 | Full Decision [CanLII] This is one of the first AABS decisions from the LAT. The applicant brought an AABS application to determine entitlement to a denied treatment plan. Prior to the hearing, Intact agreed to fund the treatment plan. Despite the settlement, the applicant sought to recoup its costs of preparing for the hearing. The LAT was forced to decide …
Insurers cannot delay scheduling mediations until the completion of a specific event in the litigation process, such as examinations for discovery.
In cases with multijurisdictional facts, the choice of law analysis depends on the specific tort alleged. In Thorne, the claims were mainly based on the tort of negligent misrepresentation, which occurs where the misinformation is received or relied upon.
Applicants successful in demonstrating economic loss for care provider who was a student at the time of the MVA and subsequently had to accept a lower paying position than anticipated due to the requirement for flexible time and proximity to provide AC services.
In this case, the Applicant sought judicial review of a Licence Appeal Tribunal decision and reconsideration barring him from proceeding with an appeal to the LAT due to his failure to attend insurer examinations for catastrophic impairment. The issue before the Divisional Court was whether the Applicant could proceed to judicial review given he had not exhausted his right to appeal…
This decision concerns a motion for leave to appeal an order permitting the plaintiff to amend his statement of claim by adding named third parties as defendants after the expiry of the limitation period. The third parties were municipal entities. Leave was not granted.
Div. Ct. Appeal from LAT re: AC and HK Limitation Period.
In Tomec v. Economical Mutual Insurance Company, a decision of the Ontario Court of Appeal, the issue was whether or not discoverability applies to the two year limitation period under s. 281.1(1) of the Insurance Act and s. 51(1) of the Statutory Accident Benefits Schedule (SABS).
Released June 19, 2015 | CanLII This was a motion brought by Desjardins as intervener to have a coverage issue determined prior to trial regarding an excluded driver under one of its policies. The excluded driver had signed an OPCF 28A Excluded Driver form in 2007. The form had not been approved by the FSCO Superintendent, was not witnessed, and did not specify which automobiles …
Full Decision This is a case where a minor plaintiff tripped and fell over a raised concrete edge of a buried metal transformer box on municipal property. The following defendants were named: Kitchener-Wilmot Hydro (“KW Hydro”) as the owner of the transformer box; the Corporation of the City of Kitchener (the “City”) as the owner of the apron of a driveway on the road allowance …
In a unanimous decision, the Ontario Court of Appeal ruled that mere presence of an office in Ontario does not itself make Ontario’s Insurance Act the governing legislation for all auto insurance policies that an insurer underwrites…
This decision arises after the Defendant brought a motion for summary judgment seeking the dismissal of the Plaintiff’s action as a result of a motor vehicle accident on August 7, 2013.
This recent Court of Appeal decision addresses issues related to underinsured automobile coverage, joint liability and subrogation under the OPCF 44R (Ontario Policy Change Form 44R — Family Protection Coverage endorsement).
Released June 11, 2015 | OntarioCourts.ca The Court of Appeal has allowed Unifund’s appeal and overturned the lower court decision. The Court held that an insurer does not have a duty to defend and indemnify its insureds under a homeowner’s policy, with respect to claims they failed to investigate, remedy and prevent their daughter from bullying. In the original ruling, (previously summarized here) Justice Stinson held that …
Court dismisses long-term disability lawsuit commenced three years after denial due to statute of limitations
An Insurer Does Not Have a Good Faith Duty to Advise Insured of a Limitation Period
The plaintiff was injured in a car accident on September 30, 2015. He applied for accident benefits and received income replacement benefits (IRBs) until Dec 2, 2015 when he returned to work full time.
The applicant, Vanessa Vasudevan, was injured in a motor vehicle collision on February 20, 2017. She was 15 years old at the time.
The applicant applied to her automobile insurer, Economical Insurance, for accident benefits. She applied to the Licence Appeal Tribunal (the “LAT”) when a number of treatment plans and her claim for Non-Earner Benefits (“NEBs”) were denied.
After the close of the plaintiff’s case, during which the plaintiff filed the reports of two radiologists, the trial judge denied the defendant’s request for a ruling permitting it to cross-examine the radiologists.
Late disclosure of surveillance evidence, in breach of the defendant’s continuing disclosure obligations, led the trial judge to exclude surveillance evidence both as substantive evidence and for the purpose of impeachment.
Township not liable to injured plaintiffs for failing to enforce taxi insurance bylaw.
In Wabie, the court was faced with deciding whether the results of a single-photon emission computerized tomography (“SPECT”) scan can be used as a secondary tool to diagnose traumatic brain injury (“TBI”).
Facts
On August 20, 2014, the plaintiff, Elaine Wabie, was involved in a motor vehicle collision when her vehicle was struck from behind while she was stopped. Upon being struck, the plaintiff’s body jerked forward and then backward causing her head to hit the headrest of her car seat.
In 2015, the plaintiff’s family physician, Dr. Thomas Quigg, noted that she was exhibiting classic symptoms of a concussion. Subsequently, Dr. Quigg diagnosed the plaintiff with post-concussion syndrome and ordered that the plaintiff to undergo an MRI. While the results of the MRI were normal, Dr. Quigg noted that the effects of a concussion often take time to present. Nevertheless, Dr. Quigg cleared the plaintiff to return to work.
In 2018, after the plaintiff’s attempt to return to work was unsuccessful, Dr. Quigg ordered that the plaintiff undergo what is known as a SPECT scan. SPECT scans measure blood flow in the brain and look at brain function rather than brain structure, like an MRI or CAT scan. Therefore, SPECT scans can indicate whether a part of the brain is functioning abnormally by depicting how blood flows to organs and tissues and demonstrates the level of blood perfusion in any given area. The results of the plaintiff’s SPECT scan indicated that she was suffering from a TBI, thereby confirming Dr. Quigg’s original diagnosis.
At trial, after the evidence from the SPECT scan was presented to form a part of the evidentiary record, the defendant objected to its use. As a result, the issue before the court was whether the evidence obtained from the SPECT scan should be disregarded as evidence of the plaintiff’s TBI.
Arguments Before the Court
The defendant argued that the evidence obtained from the SPECT scan should be disregarded. The defendant relied on the decision in Meade v Hussein, 2021 ONSC 7850 to form the basis of their argument. Meade was a personal injury case where there was a claim for damages for an alleged TBI from a motor vehicle collision. At the outset of trial in Meade, the defendant moved for an order excluding all the evidence obtained from a SPECT scan administered to the plaintiff. The court found that the use of SPECT scans to prove a patient has suffered a TBI, particularly where it is necessary to differentiate the existence of a TBI from anxiety or depression, was a novel concept. As a result, the court found that SPECT scan evidence is not reliable, especially as it was not presented with any evidence that SPECT scans can be used to distinguish TBIs from anxiety or depression. Ultimately, the court in Meade disregarded the evidence from the SPECT scan in its entirety.
The plaintiff argued that this case is distinguishable from Meade. Specifically, the plaintiff argued that, unlike in Meade, the scan was not used to diagnose the plaintiff with a TBI, but rather was used to support a finding made by Dr. Quigg that she had suffered a TBI. The plaintiff also emphasized that, unlike in Meade, she was not advancing a claim for depression or anxiety.
The Court’s Analysis
The court found that SPECT scans cannot be used as a primary diagnostic tool. Instead, the court concluded that SPECT scans can be used as a secondary diagnostic tool and can be used to support a TBI diagnosis.
The court then looked at the use and purpose of the SPECT scan in this case. The Court noted that in this situation, the SPECT scan evidence was obtained after a TBI diagnosis was made by Dr. Quigg and was used to support Dr. Quigg’s diagnosis. In addition, the Court found that the SPECT scan was not used to distinguish the existence of a TBI from anxiety or depression. The Court therefore accepted the SPECT scan evidence as a secondary diagnostic tool.
Why This Matters
This case clarifies when SPECT scan evidence can be used to demonstrate a plaintiff is suffering from a TBI. Since the court found that SPECT scans are not primary tools for diagnosis, SPECT scan evidence can be used in concert with other medical techniques and observational tools to support a plaintiff’s TBI diagnosis. Finally, it is important to note that SPECT scan evidence is less likely to be admitted when a claim for depression or anxiety has been advanced or is at issue.
In this case, the appellant employee brought an action for wrongful dismissal and moved for summary judgment seeking common law enhanced pay in lieu of notice. The core issue was the interpretation and application of the employment contract. In particular, a termination style clause which restricted pay in lieu of notice to ESA minimum entitlements…
Plaintiff’s 30.10 Wagg motion found to be premature where pleadings still open.
Defendant’s summary judgment motion dismissed in this occupiers’ liability action where the Defendant did not live in the home where the Plaintiff fell. There were genuine issues for trial regarding the existence of a duty of care and if that duty was breached.
Court of Appeal dismisses appeal regarding finding of liability on Crown for assault at a provincial jail
This is a motion for summary judgment to dismiss the Plaintiffs’ action in a social host liability case.
Warlow v. Dr. Sadeghi is a case where the Plaintiff was unsuccessful at an informed consent trial. The modified objective test was applied.
On a winter night, 18-year-old Melinda Wasylyk was driving home from her first night of nursing college when she lost control of her vehicle twice on CR88 – one of the busiest roads in Simcoe County (“Simcoe”) connecting Hwy 400 to Bradford.
This case, an appeal from a decision of the LAT, involves the interpretation of the provisions surrounding IRBs under the SABS.
Accident Benefits Insurer’s failure to provide an Explanation of Benefits to a dependent of a policyholder who may have been entitled to accident benefits does not stop the time requirement of that dependant to apply for accident benefits within the statutory timelines and commence an action within the two-year limitation period
Watts is an illustrative case dealing with implied consent. Watts restates the current test for whether implied consent has been granted.
In order to determine whether a driver of a vehicle has the implied consent of the owner of the vehicle to drive it, the court has to ascertain what he or she actually did under the circumstances, not what he or she would have done under different circumstances. The court cannot speculate on whether or not an owner would consent to allow a vehicle to be driven if the driver had requested the permission.
The following is a summary of the FSCO Decision of Weaver v. Aviva, an Arbitration that was heard August 9, 2017.
The Appellant, Mr. White, suffered a pinhole bowel leak after routine bowel surgery. Mr. White claimed damages based on a breach of the standard of care with respect to his post-op care and follow-up.
The Court of Appeal held that the term “owner” in the Dog Owners’ Liability Act is more expansive than the colloquial meaning and refers to a person who has some measure of control and physical possession of the dog immediately prior to the injury. The Court furthered clarified the application of negligence to cases of injury by animals, holding that there must be “special circumstances” in which the owner could reasonably foresee that a specific animal was dangerous in specific circumstances.
Court of Appeal distinguishes case from Childs v. Desormeaux and sets aside motion judge’s order dismissing the Plaintiffs’ claims on summary judgment. The door to a finding of social host liability is left open
This action arose from a 2014 fatality of a 51-year-old man following a splenic rupture. The plaintiffs were the spouse and sons of a patient who was cleared to return to work in rural Ontario after having been admitted to hospital for abdominal trauma, including a broken rib, from falling at home while doing renovations. The defendants at trial were the general surgeon who saw the patient in hospital and the family physician who saw the patient in follow-up after he was discharged. The patient died of a splenic rupture 14 days after the fall that brought him into the hospital.
The Court of Appeal held that the tort of battery against police officers was not discoverable until the plaintiff was acquitted of criminal charges of assault of the officers and resisting arrest, thereby extending the “appropriate means” aspect of discoverability until the date of his acquittal.
The limitation period against a security firm contracted to perform winter maintenance at a condominium property did not begin to run before the plaintiff had actual knowledge of the security firm’s responsibility. Plaintiff’s counsel’s property searches, notice letters and reliance on information obtained from the property owner constituted due diligence.
Where a service provider relies on the waiver clause of a consumer agreement, and the consumer agreement contains terms that are void by operation of the Consumer Protection Act, the service provider bears the onus to persuade the court that it would be inequitable not to bind the Plaintiff to all or some portions of the consumer agreement, including its waiver clause.
In this case, the respondent was 27 weeks pregnant with twins when she saw the appellant for an unscheduled appointment, complaining of severe abdominal pain and excessive weight gain. The appellant sent her home to rest. 2 days later, twins were delivered by emergency C-section, and as a result of the birth, one of the twins sustained brain damage due to Twin-to-Twin Transfusion Syndrome.
Read Full Decision This case involved an motor vehicle accident with an uninsured defendant. The plaintiff pursued the uninsured provisions of her own automobile policy, TD Insurance. TD retained in-house counsel to act on the AB matter. TD thereafter retained the same in-house counsel to act on the uninsured claim. Plaintiff’s counsel advised TD that it was in a position of conflict and that it …
Where an expert has retained separate legal counsel to assist with the preparation of a report or affidavit, the expert will not be required to produce drafts or copies of communications between the expert and his or her counsel. However, the expert will be required to produce drafts and correspondence if there is a factual basis for the reasonable suspicion that counsel has improperly influenced the expert.
Court of Appeal confirms judicial review available only in rare cases or SABS disputes.
In this case that went before the Licence Appeal Tribunal (“LAT”) following a seven-day hearing held in-person over the months of October and December 2019, the LAT determined that the Applicant had sustained a Catastrophic Impairment as a result of his motor vehicle accident of June 6, 2014…
This case serves as a good reminder of the law surrounding the enforceability of waivers. The Plaintiff had attended the Defendant indoor trampoline park. While attempting to land a backflip on a trampoline, he landed on his head and suffered serious injuries including a C7 vertebra fracture that required surgery.
A good refresher on the test for Gross Negligence
Summary Judgment not granted where the inconsistencies of several witnesses and conflicting material evidence required an evaluation of credibility.
In this case, a formal diagnosis of chronic pain was not required for removal from the MIG.
Improper notice denying treatment prevents insurer from relying on MIG until defect corrected.
Released June 24, 2015 | CanLII In this decision, the Court of Appeal considered the inherent jurisdiction of the court to order a party to undergo a defence medical examination by someone who is not a “health practitioner” as defined by s. 105 of the Courts of Justice Act. The Court acknowledged at the outset that there was conflicting case law on the issue. The …
