Adam J. Aldersley

The plaintiff, an insured person, brought an action against a medical assessment firm and its assessors, alleging they fraudulently or negligently altered medical reports to minimize her statutory accident benefits.

The defendants moved to strike the statement of claim, arguing the Licence Appeal Tribunal had exclusive jurisdiction, the pleadings disclosed no reasonable cause of action, and the action was an abuse of process.

The court held it had jurisdiction over tort claims against non-insurer third parties.

The court struck the direct claims for fraudulent and negligent misrepresentation due to lack of proximity, but allowed the claims for the tort of unlawful means, inducing breach of contract, and negligence to proceed, finding that the application of expert witness immunity should be determined at trial.

The defendants brought a motion seeking a ruling that serving a subpoena on a doctor would allow them to receive the doctor's entire clinical notes and records without the doctor being sworn or called as a witness.

The plaintiffs opposed this.

The court dismissed the defendants' motion, holding that Rule 53.04(1) of the Rules of Civil Procedure requires a witness's attendance and testimony at trial, and that a subpoena cannot be used to bypass established discovery processes or to obtain documentary disclosure without the witness being subject to cross-examination.

The court emphasized that such a practice would lead to "trial by ambush" and discourage early settlement.

The defendants brought a motion for leave to admit an expert report from Dr. Armstrong concerning the plaintiff's life expectancy in a personal injury action.

The court found that while the defendants provided a reasonable explanation for the late delivery of the report and that the plaintiffs were not prejudiced by the delay, the report itself was inadmissible.

The report failed to comply with Rule 53.03(2.1)6 by not providing a methodology or listing all relied-upon documents.

Furthermore, its probative value was deemed very low due to the expert's inappropriate analytical approach (life insurance vs. annuity) and use of general population statistics without proper explanation.

Finally, Dr. Armstrong was not qualified to provide a medical diagnosis as he had not been a member of the College of Physicians and Surgeons since 2010.

The motion for leave was dismissed, and the report was ruled inadmissible.

The applicant sought reimbursement for massage therapy services provided by an unlicensed service provider who was not registered with HCAI.

The respondent denied the OCF-6 expense claims because the invoices were not submitted through HCAI via an OCF-21, as required by s. 49.1 of the Schedule.

The Tribunal found that the applicant failed to comply with s. 49.1 and the applicable Guideline, which require an OCF-21 to be submitted by a Participating Facility even when services are provided by an unlicensed provider.

The application for benefits, interest, and an award was dismissed.

The plaintiff was struck on the head by a bocce ball thrown by the defendant Goulet while seated on the outdoor patio of the defendant restaurant (Local).

The plaintiff suffered a mild traumatic brain injury resulting in chronic headaches, fatigue, and cognitive deficits.

The plaintiff settled with the restaurant via a Pierringer Agreement prior to trial.

At trial, Goulet argued the restaurant was contributorily liable for failing to erect a barrier or post warning signs.

The court found Goulet 100% liable, concluding that while the restaurant failed to post a warning sign, this breach did not cause the injury as Goulet knew throwing the ball was dangerous.

The court awarded the plaintiff general damages of $125,000, plus past and future loss of income, future care costs, and out-of-pocket expenses.

The plaintiff was awarded over $1.1 million in damages following a personal injury trial.

The parties appeared before the court to determine the costs of the trial and the calculation of a management fee.

The court found that the plaintiff had made reasonable offers to settle that were more favourable than the judgment, entitling her to elevated costs.

The court awarded the plaintiff $852,528.03 in costs and disbursements, and fixed the management fee at $125,000 based on an annualized sliding scale rather than a fixed percentage.

The plaintiff was injured in a motor vehicle accident when the defendant driver ran a red light and t-boned the vehicle in which the plaintiff was a passenger.

The court found the defendants 100% liable.

The plaintiff, a self-employed jewelry designer, suffered a mild traumatic brain injury, chronic pain, PTSD, and post-concussion syndrome.

The court awarded $1,101,568.55 in total damages, including $225,000 for general damages, $328,402.20 for past and future economic loss, and $489,300 for future care costs, plus a management fee and tax gross-up.

The defendant doctors brought a motion to compel the plaintiff to produce settlement documents and a pre-trial conference brief from two prior actions (a tort action and a statutory accident benefits action).

The plaintiff refused on the basis of settlement privilege.

The defendants argued that disclosure was necessary to prevent double recovery regarding a litigation loan that was claimed as damages in all three actions.

The court granted the motion, finding that the public interest in preventing overcompensation and facilitating meaningful settlement discussions in the current action outweighed the public interest in protecting the prior settlements, distinguishing the Supreme Court's decision in Sable Offshore.

The plaintiff brought a motion seeking an extension of time to complete the examination for discovery of the representative of the defendant insurance company.

The defendants opposed the motion, arguing the plaintiff had exceeded the seven-hour limit under Rule 31.05.1 and sought to strike the affidavit sworn by a staff member of the plaintiff's counsel.

The court declined to strike the affidavit, finding it appropriate for a procedural motion.

The court granted the plaintiff an additional 1.5 hours for discovery, noting the complexity of the 17-year business relationship and the conduct of defence counsel, but declined to award costs due to the plaintiff's failure to address time limits in the discovery plan.

At the outset of a motor vehicle accident trial, the parties sought a ruling on whether section 12 of the Evidence Act, which limits a party to calling three expert witnesses without leave, applies to participant experts and non-party experts.

The plaintiff intended to call four litigation experts and two participating experts, and file numerous medical reports under section 52.

After reviewing the jurisprudence, including Westerhof v. Gee Estate, and the Osborne Report, the court ruled that section 12 applies only to litigation experts retained for the purpose of the proceeding, and not to participant or non-party experts.

Following a jury trial in a personal injury action where the plaintiff was awarded $698,112.58 in damages, the court determined the plaintiff's entitlement to costs.

The parties agreed on most rates and disbursements but disputed the senior counsel's hourly rate for 2017 and 2018, and whether the costs should reflect the net recovery after an assignment of collateral benefits.

The court fixed senior counsel's rate at $375 per hour, declined to reduce costs based on the uncertain future of collateral benefits, and awarded the plaintiff partial indemnity costs totaling $466,185.76.

The applicant filed a request for reconsideration of an adjudicator's decision that found the applicant was limitation-barred from obtaining Income Replacement Benefits.

The Associate Chair dismissed the request for reconsideration, noting that under the amended Rule 18.1 of the Common Rules of Practice and Procedure, requests for reconsideration are only accepted for decisions that finally dispose of an appeal.

Because the issue of catastrophic determination remained scheduled for a future hearing, the underlying decision did not finally dispose of the appeal.

In a post-trial ruling following a motor vehicle accident trial, the court determined the terms of an assignment of the plaintiff's long-term disability (LTD) benefits to the defendant's insurer.

The court held that the defendant is entitled to a credit for the gross amount of the LTD benefits, regardless of the tax deducted at source by the LTD insurer.

The court also ruled that the effective date of the assignment is the date of the jury's verdict, not the date the judgment is paid, and ordered the defendant to reimburse the plaintiff for reasonable costs incurred in preserving her right to the LTD benefits.

The applicant was injured in a motor vehicle accident and received income replacement benefits (IRBs) from the respondent.

The respondent later denied post-104-week IRBs based on several Insurer's Examinations.

The applicant applied to the Tribunal but withdrew the claim pending a catastrophic assessment, and the parties agreed to toll the limitation period.

The applicant failed to recommence the application before the tolling period expired.

The applicant argued the initial denial was invalid because the respondent failed to provide all examination reports to her treating practitioner under section 37(5) of the Schedule.

The Tribunal found the denial was clear and unequivocal, triggering the limitation period.

The Tribunal declined to extend the limitation period under section 7 of the LAT Act, finding the applicant was statute-barred from proceeding.

This endorsement addresses two motions in a personal injury action arising from a 2009 motor vehicle accident.

The plaintiffs, who commenced their action eight years post-accident, claim damages against the County of Renfrew for alleged road maintenance failures.

The County brought an omnibus motion, including for summary judgment against municipal employees and for documentary production related to the plaintiffs' limitation defence.

The plaintiffs brought a cross-motion regarding undertakings and refusals.

The court granted summary judgment against the municipal employees on consent, lifted the deemed undertaking rule for previous litigation files, and ordered production of those files subject to privilege.

The court also provided guidance on the form of affidavits of documents and ordered answers to some discovery questions while denying others.

During jury deliberations in a motor vehicle personal injury trial, the jury foreman conducted internet research and found the Fault Determination Rules under the Insurance Act.

The jury asked a question about the regulation, prompting the trial judge to give a correcting charge instructing them to disregard it.

The jury subsequently returned a verdict finding the plaintiff 73% contributorily negligent.

The plaintiffs moved for a mistrial, arguing the jury was contaminated and failed to follow the correcting charge.

The court dismissed the motion, finding the correcting charge was sufficient, the jury's prompt disclosure of the research indicated a willingness to follow instructions, and the verdict was supported by the evidence.

The plaintiff was injured in a car accident and awarded damages by a jury, including $125,000 for non-pecuniary damages and $600,000 for future income loss, subject to a 10% reduction for contributory negligence.

In this post-trial ruling, the court determined the applicable prejudgment interest rate for non-pecuniary damages and whether the defendant was entitled to an assignment of the plaintiff's long-term disability (LTD) benefits.

The court declined to exercise its discretion to depart from the default 1.3% prejudgment interest rate.

The court also granted the defendant's request for an assignment of the plaintiff's LTD benefits until age 65 or until the future income loss award is exhausted, to prevent double recovery.

Following a jury verdict, the plaintiff brought a motion for judgment to determine the pre-judgment interest (PJI) rate applicable to general non-pecuniary damages.

The plaintiff argued for a 5% PJI rate, asserting that amendments to the Insurance Act effective January 1, 2015, were not retroactive as PJI is a matter of substantive law, relying on the Divisional Court's decision in Carr v. Modi.

The defendant conceded the court was bound by Carr, despite believing the case law was wrongly decided, given a pending Court of Appeal decision in El-Khodr v. Lackie.

The parties agreed to issue judgment with a 5% PJI rate, with a mechanism to revisit the calculation if the El-Khodr appeal decision impacted it.

The court ordered judgment for the plaintiff in the agreed amount.

The defendant brought a threshold motion under section 267.5 of the Insurance Act, seeking a declaration that the plaintiff had not suffered a permanent and serious impairment of an important physical, mental, or psychological function as a result of a motor vehicle collision.

The plaintiff opposed the motion, arguing that her injuries, including PTSD and major depression, met the threshold criteria.

The court dismissed the defendant's motion, finding that the plaintiff had, on a balance of probabilities, suffered a permanent, serious impairment of an important physical, mental, or psychological function caused by the collision.

The court also made findings on the credibility and reliability of the defence medical expert.

The plaintiff in a motor vehicle collision action brought a motion to include the names of the parties' respective motor vehicle insurers (Belair Direct and Aviva) in the jury pre-screening process.

The plaintiff argued that public awareness of mandatory insurance mitigated prejudice and that broader "connections" beyond employment should be screened.

The defendant opposed, citing potential prejudice and increased complexity.

The court dismissed the motion, affirming that civil jury selection in Ontario does not permit challenges for cause based on unspecified partiality and that the presumption of juror impartiality is strong.

The court held that identifying insurers at the outset could mischaracterize the dispute as one between insurers rather than individuals and potentially mislead the jury regarding a defendant's personal exposure.