Adam Keith Wagman

This appeal addressed whether persistent feelings of frustration and anger, without evidence of impairment, constitute a compensable mental injury under the principles established in Saadati v. Moorhead.

The Court of Appeal found that the trial judge erred in law by failing to apply the "Saadati factors" (cognitive impairment, impact on daily activities, and treatment) when assessing mental injury.

The Court concluded that the plaintiff's reported feelings, absent evidence of functional impairment or treatment, did not meet the legal threshold for a compensable mental injury.

The appeal was allowed, and the action dismissed.

The applicant was severely injured when the ATV he was driving collided with a dirt bike on private property.

He sought statutory accident benefits from the respondent insurer, who denied the claim on the basis that the incident did not meet the definition of an "accident" under the Schedule because neither vehicle was an "automobile".

The Tribunal found that the owner of the ATV was not an occupier of the private property where the collision occurred.

Consequently, the ATV was required to be insured under section 15 of the Off-Road Vehicles Act, bringing it within the definition of an "automobile" under the Insurance Act.

The Tribunal concluded that the incident was an "accident" and the applicant was entitled to claim benefits.

The court determined pre-judgment interest and costs following a jury verdict in a personal injury action.

Pre-judgment interest on general damages was reduced from 14 to 10 years due to plaintiff-occasioned delays.

The applicable rate for past loss of income was confirmed at 2.8%.

Plaintiffs were awarded partial indemnity costs to December 8, 2015, and substantial indemnity costs thereafter, totaling $727,290.00.

The defendant Upright, having made a better offer than the jury verdict, was awarded partial indemnity costs of $210,000.00 from the defendant Janandee.

The plaintiffs' costs were apportioned between the defendants based on their respective liability findings (Janandee 94%, Upright 6%).

The insurer brought a motion for partial summary judgment seeking a declaration that its liability under the OPCF 44R Family Protection Coverage was limited because there was no corroborative “other material evidence” of an unidentified vehicle involved in the accident.

The plaintiffs alleged the driver took evasive action to avoid an unidentified vehicle, causing a rollover collision and catastrophic injuries.

The court reviewed physical evidence including tire marks, sensor diagnostic data, police notes, and an accident reconstruction expert report.

The court held that this evidence, if accepted at trial, could constitute physical evidence indicating the involvement of an unidentified automobile within the meaning of the OPCF 44R endorsement.

As a result, a genuine issue requiring a trial existed and summary judgment was inappropriate.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them.

An arbitrator initially found the termination improper under section 37 of the SABS and ordered interim benefits paid until proper notice was given.

After the insurer complied, the arbitrator found the applicant did not meet the substantive test for disability and dismissed her claim for ongoing benefits, but also ruled she was not required to repay the interim benefits paid prior to the proper termination notice.

Both parties appealed.

The Director's Delegate dismissed both appeals, finding the arbitrator was not functus officio after the interim order, did not err in rejecting the applicant's medical evidence, and correctly concluded that requiring repayment of benefits paid before a proper termination notice would render the stoppage provisions meaningless.

The insurer brought a motion for the production of Ontario Provincial Police (OPP) records relating to the applicant's ATV accident.

The applicant consented to the release, but the OPP refused to produce the records without a court order, citing the Freedom of Information and Protection of Privacy Act.

The arbitrator held that under section 22(1) of the Insurance Act and the Statutory Powers Procedure Act, an arbitrator has the jurisdiction to order third-party production.

Finding the records relevant and necessary, the arbitrator ordered the OPP to produce the records subject to agreed redactions.

The appellant insurer appealed a decision finding that the respondents were entitled to recover under the Family Protection Coverage (FPC) Endorsement of an automobile insurance policy.

The respondents were injured in a collision caused entirely by an uninsured motorist.

The appellant argued that because it was obliged to pay $1,000,000 under the liability coverage to one of the injured family members (due to the mother's contributory negligence), its maximum liability under the FPC Endorsement to the other family members was zero.

The Court of Appeal dismissed the appeal, holding that the mother was not jointly liable with the uninsured motorist for the damages suffered by the respondents, and therefore the liability coverage available to her did not reduce the insurer's maximum liability under the FPC Endorsement.

The insurer terminated the applicant's income replacement benefits without complying with the stoppage provisions in section 37 of the Statutory Accident Benefits Schedule.

The arbitrator previously ordered the insurer to pay benefits until it complied with section 37, subject to a potential repayment obligation.

After the insurer complied and benefits were properly terminated, the arbitrator determined that the applicant did not meet the disability test after the initial termination date.

However, the arbitrator held that requiring the applicant to repay benefits paid before the insurer issued a compliant notice of stoppage would render the consumer protection provisions of section 37 meaningless.

The applicant was not required to repay the benefits.

The applicant was injured in a rear-end motor vehicle collision and claimed income replacement benefits for fibromyalgia and psychological impairments.

The insurer terminated benefits after June 24, 2003.

The arbitrator found that the applicant's physical complaints were not objectively verifiable and preferred the insurer's psychological assessment, which concluded she was not substantially disabled from performing the essential tasks of her employment as a computer sales representative.

The application for arbitration was dismissed.

The applicant was injured in a rear-end motor vehicle accident and received income replacement benefits.

The insurer terminated the benefits but failed to comply with the statutory notice requirements under section 37 of the Statutory Accident Benefits Schedule.

The arbitrator held that the applicant was entitled to ongoing income replacement benefits until the insurer properly complied with the stoppage provisions.

The arbitrator denied the claim for chiropractic and physiotherapy treatments, finding them unreasonable and unnecessary, but allowed the cost of an orthopaedic mattress cover.

A special award of $1,000 was granted against the insurer for unreasonably delaying the payment of benefits.

The applicant was injured in a motor vehicle accident and received income replacement benefits until they were terminated by the insurer.

An arbitration was scheduled to determine ongoing entitlement.

Shortly before the 104-week mark and the arbitration, the insurer requested four additional insurer's examinations.

The applicant refused to attend.

The arbitrator held that the insurer failed to prove the examinations were reasonably necessary to determine benefit entitlement or to ensure fairness, as the insurer had already determined the applicant was not entitled to benefits and had sufficient prior opportunity to request examinations.

The applicant was permitted to proceed to arbitration without attending the examinations.

The appellant, who suffered a severe brain injury in a motor vehicle accident, appealed an arbitration decision dismissing his claim for payment of 'non-legal' rehabilitative services provided by a law clerk at his legal counsel's firm.

The arbitrator had found that the claim was not proven because the law clerk's dockets did not reliably distinguish between legal and non-legal services, and that the services were redundant given the extensive support provided by the appellant's professional case manager.

The Director's Delegate dismissed the appeal, finding no error in the arbitrator's assessment of the evidence and concluding that the arbitrator reasonably found the expense to be unproven and unnecessary.

The applicant sought expenses following an arbitration decision where he was unsuccessful in claiming rehabilitation benefits for the non-legal services of a law clerk.

The insurer opposed the request and sought reimbursement of its assessment fee under subsection 282(11.2) of the Insurance Act.

The arbitrator found that the applicant's claim, while unsuccessful, raised a novel issue and was not manifestly unfounded, frivolous, or vexatious.

The arbitrator awarded the applicant his reasonable expenses and dismissed the insurer's claim for reimbursement of its assessment fee.

The applicant was injured in a motor vehicle accident and received statutory accident benefits.

The insurer terminated his income replacement benefits after he returned to work in a modified capacity.

The applicant applied for arbitration almost four years after the initial notice of termination.

The insurer argued the application was barred by the two-year limitation period under subsection 281(5) of the Insurance Act.

The arbitrator found that the insurer failed to comply with the mandatory notice requirements under sections 64 and 71 of the Statutory Accident Benefits Schedule when it stopped paying benefits.

Because the insurer did not provide proper notice of the right to dispute, the limitation period did not begin to run.

The applicant was not precluded from proceeding to arbitration.

The appellant employer appealed an order holding that it was not relieved from liability under the no-fault provisions of the Insurance Act after its employee, driving a leased vehicle in the course of employment, was involved in a motor vehicle accident.

The Court of Appeal held that an employer is not a person 'present at the incident' under s. 267.1(1) merely because its employee was involved.

However, the employer qualified as an 'other person' under s. 267.1(7), with the result that it was protected from vicarious liability for pecuniary loss caused by the employee and remained liable only for pecuniary loss arising from its own independent negligence.

The appeal was allowed and the order below was set aside.

The applicant, who sustained a closed head injury in a motor vehicle accident, sought accident benefits for 'non-legal' support services provided by a law clerk at his counsel's firm.

The law clerk spent significant time providing emotional support and dealing with the applicant's personal problems.

The arbitrator dismissed the claim, finding that while the expense was incurred as a result of the accident, it was not reasonable because the law clerk's services duplicated and overlapped with the services already provided by the applicant's funded case manager.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits.

He previously commenced a court action to enforce a settlement agreement regarding medical rehabilitation benefits.

He subsequently applied for arbitration for new medical and rehabilitation benefits arising from later surgeries.

The insurer brought a preliminary motion to dismiss the arbitration, arguing the applicant was bound to the court forum under s. 282(3) of the Insurance Act.

The arbitrator dismissed the motion, finding that the issue in the arbitration was distinct from the court claim, and the applicant was entitled to proceed with the arbitration.

The applicant, who suffered paraplegia in a motor vehicle accident, applied for statutory accident benefits.

The arbitrator found that the applicant was entitled to weekly income benefits post-156 weeks because her injuries continuously prevented her from engaging in substantially all of her pre-accident activities.

The arbitrator also awarded care benefits of $250 per week, finding that her husband reasonably lost this gross income in caring for her.

Claims for a new wheelchair, shower modifications, and counselling were granted as reasonable and necessary rehabilitation expenses, while claims for a new home, a modified van, and a power scooter were denied.

The applicant's request for a special award was dismissed as the insurer's conduct was not found to be unreasonable.

The applicant, a heavy equipment mechanic, was injured in a 1993 motor vehicle accident and received statutory accident benefits until the insurer terminated them in June 1996.

The applicant sought ongoing weekly income benefits and medical/rehabilitation benefits, claiming disability due to a tremor, chronic pain, dizziness, and psychological issues.

The arbitrator found that while the applicant was disabled from his pre-accident employment, his ongoing disability was caused by significant pre-existing degenerative conditions and an essential tremor unrelated to the accident.

The claim for ongoing weekly income benefits was dismissed.

The arbitrator awarded $1,129.75 for medical and rehabilitation expenses incurred prior to the termination date, plus a $100 special award for the insurer's unreasonable withholding of pay-pending-dispute benefits.

The applicant, on behalf of her minor daughter who suffered a spinal cord injury in a motor vehicle accident, sought statutory accident benefits for the purchase of a new home.

The insurer argued its obligation was limited under subsection 41(1) of the 1994 Schedule to the cost of renovating the daughter's 'existing home', which was a townhouse owned by her mother's estranged husband.

The arbitrator held that the townhouse was the 'existing home' despite the lack of ownership by the insured, and that the insurer's present obligation towards a new home was restricted to the value of the renovations that would have been required for the townhouse.