Alan L. Rachlin

The plaintiffs sought leave to appeal a decision setting aside a Master's order that refused to bifurcate a jury trial.

The Master had relied on appellate authority stating there is no jurisdiction to bifurcate a jury trial, but the motion judge found the Master erred and ordered severance.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's decision given existing binding appellate authority prohibiting the bifurcation of jury trials, and questioning whether the correct test for severance was applied.

In a medical malpractice action, the parties agreed to a bifurcated trial to determine the threshold factual issue of whether the defendant doctor advised the plaintiff to take a specific medication.

The trial judge decided the issue in favour of the plaintiffs, finding the doctor did not recommend the medication.

The defendants appealed to the Court of Appeal.

The plaintiffs moved to quash the appeal, arguing the order was interlocutory.

The Court of Appeal dismissed the motion to quash, holding that the order was final because it disposed of a defence and deprived the defendants of a substantive right that could be determinative of the entire action.

The plaintiff was injured in a motor vehicle accident and retained a paralegal to negotiate a settlement with the tortfeasors' insurer.

The plaintiff later sued the tortfeasors and the paralegal, alleging the paralegal was negligent and the settlement was invalid.

The paralegal cross-claimed against the tortfeasors, arguing their insurer owed a duty of care to the plaintiff not to negotiate with an unauthorized paralegal.

The Divisional Court allowed the tortfeasors' appeal and struck the cross-claim, holding that a liability insurer owes no duty of care to a plaintiff making a claim against its insured, as this would create an impossible conflict of interest.

The applicant's counsel brought a motion under Rule 10.3 of the Dispute Resolution Practice Code, asserting that the applicant lacked the capacity to instruct him and seeking the appointment of the Public Guardian and Trustee.

Counsel sought to exclude the insurer from the hearing to protect solicitor-client privilege and requested leave to appear on his own affidavit.

The arbitrator dismissed both requests, finding that the insurer had a direct interest in the capacity issue due to its limitation defence, and that the presence of medical evidence distinguished the case from precedents allowing counsel to rely on their own affidavit.

The arbitrator granted the insurer's request for an adjournment to obtain its own capacity assessment.

The appellant appealed the dismissal of his personal injury action following a jury trial.

The jury found the appellant sustained no injuries in a motor vehicle accident, despite the trial judge ruling that the appellant met the statutory threshold.

The appellant argued that defence counsel's closing address, which improperly focused on the appellant's immigrant status and speculated on how he would use a damages award, was inflammatory and prejudiced the jury.

The Divisional Court allowed the appeal and ordered a new trial, finding that the comments were irrelevant, offensive, and likely swayed the jury based on improper considerations, and that the trial judge's correcting instruction was inadequate.

The applicant was injured in a motor vehicle accident and received statutory accident benefits, including income replacement benefits.

The insurer sought to deduct 80 per cent of post-accident payments made to the applicant by his pre-accident business, arguing they were employment income disguised as a loan.

The arbitrator found that the payments were a genuine loan and that the applicant was not engaged in post-accident employment.

Furthermore, a shareholder benefit in the form of a loan is not considered employment income under the Schedule.

The insurer was precluded from deducting the payments from the applicant's income replacement benefits.

The appellants appealed an order permitting the respondents to amend their statement of claim to increase the prayer for relief, but denying the appellants the right to deliver a jury notice.

The Court of Appeal quashed the appeal, holding that the discretionary decision concerning terms imposed on the amendment of pleadings constitutes an interlocutory order, over which the court has no jurisdiction.

The moving parties (the Balsdons and their insurer) brought a motion for leave to appeal a decision dismissing their motion to strike a crossclaim.

The crossclaim alleged that the insureds were vicariously liable for the actions of their insurer in negotiating a settlement with the plaintiff.

The court granted leave to appeal under Rule 62.02(4)(b), finding that the issues of whether an insured is vicariously liable for its insurer's actions and whether an insurer owes an independent common law duty to third parties are of significant importance to the insurance industry.

The insurer applied to vary an arbitration order that awarded the insured 24-hour attendant care benefits, alleging a material change in circumstances based on surveillance evidence.

The insurer then sought to compel the insured to attend an Insurer's Examination under section 42 of the Statutory Accident Benefits Schedule prior to the variation hearing.

The Arbitrator held that the insured was not required to attend the examination, reasoning that an insurer must have sufficient evidence to support its claim before delivering an Application for Variation, rather than seeking to obtain such evidence after the application has been accepted.

The insured was injured in a motor vehicle accident and subsequently developed a crack cocaine addiction.

He applied for attendant care benefits to supervise him and prevent drug abuse, which the insurer denied on the basis that he was not catastrophically impaired.

An arbitrator later found the insured was catastrophically impaired and ordered the insurer to pay past attendant care benefits, even though the insured had not actually received or paid for the care during that period.

The Director's Delegate upheld this decision.

On judicial review, the Divisional Court dismissed the insurer's application, holding that it was not patently unreasonable to interpret 'incurred' as including reasonable and necessary expenses that would have been provided but for the insurer's improper denial of benefits.

The appellant appealed the trial judge's decision that he had not established a permanent and serious impairment of an important physical, mental or psychological function resulting from a motor vehicle accident under s. 267.5(5) of the Insurance Act.

The appellant argued the trial judge erred in her consideration of future events.

The Court of Appeal dismissed the appeal, finding that the trial judge did consider future events but properly concluded the evidence was mere conjecture, and her conclusion that the statutory threshold was not met was supported by the evidence.

The appellants appealed a trial judgment, arguing the trial judge erred in excluding the viva voce evidence of their medical expert because no report was filed.

The Court of Appeal held that even if this was an error, it would not have affected the trial judge's decision on the threshold question, as she had the expert's detailed notes and found the appellant lacked credibility.

However, the Court of Appeal allowed the appeal regarding pre-offer costs.

The trial judge had awarded no costs for proceedings prior to the defendants' settlement offer without providing reasons.

Applying Rule 76.13, the Court found it was reasonable for the plaintiffs to commence the action under the ordinary procedure and awarded them partial indemnity costs up to the date of the offer.

The insurer appealed an arbitrator's decision finding that the claimant was catastrophically impaired due to a crack cocaine addiction caused by a motor vehicle accident, and awarding ongoing income replacement and attendant care benefits.

The insurer argued that the arbitrator erred in finding catastrophic impairment under the mental/behavioural disorder criteria when the claimant failed the whole person impairment criteria, erred in finding causation, and erred in awarding attendant care benefits that were not actually incurred.

The Director's Delegate dismissed the appeal, holding that the catastrophic impairment definitions are alternative, that the addiction was a direct consequence of the accident injuries, and that an insurer cannot rely on a claimant's inability to incur expenses when the insurer has denied the claim.

The appellant appealed a trial judgment finding that the respondent suffered a 'serious impairment' under s. 267.5(5)(b) of the Insurance Act following a motor vehicle accident.

The appellant argued that the trial judge misapplied the threshold test by relying on a previous appellate endorsement that allegedly lowered the standard to only require an effect on the enjoyment of life.

The Court of Appeal clarified that its previous endorsement did not modify the established test, which requires a substantial interference with the ability to perform usual daily activities or regular employment.

Finding no error in the trial judge's application of the law or appreciation of the evidence, the appeal was dismissed.

The plaintiff in a personal injury action claimed her injuries interfered with her ability to care for her child.

During the jury trial, defence counsel asked about pre-accident discussions regarding the Children's Aid Society (CAS).

The trial judge discharged the jury, expressing concern that a juror employed by the CAS might make independent inquiries.

The defendants appealed.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge erred in principle by discharging the jury based on speculation rather than exploring less drastic remedies to cure any potential prejudice.

The appellants appealed a jury verdict finding no liability on the part of the respondents for personal injuries sustained when the appellant fell down stairs at a house under construction.

The appellants argued that the trial judge interfered excessively during the appellant's testimony, compromising trial fairness.

The Court of Appeal agreed, finding that the trial judge's extensive and leading questions on core issues of liability and credibility crossed the line into participation in the litigation.

The appeal was allowed, the trial judgment set aside, and a new trial ordered.

The applicant was injured in a motor vehicle accident and sought a rehabilitation benefit for a retraining course.

The insurer requested production of the applicant's income tax summaries from 1997 to 2002 to assess the reasonableness of the retraining by comparing potential earnings to pre-accident earnings.

The arbitrator held that the tax records were not relevant because the applicant's income replacement benefits had been calculated based on a prospective contract of employment rather than retrospective pre-accident earnings.

The insurer's request for production was denied.

The applicant was seriously injured in a motor vehicle accident and subsequently developed a severe addiction to crack cocaine.

He applied for catastrophic impairment status, attendant care benefits, and income replacement benefits.

The insurer argued the addiction pre-dated the accident and was not causally linked.

The arbitrator found that the applicant was a recreational user prior to the accident but the severe addiction was a direct result of the accident, likely due to a mild traumatic brain injury and an attempt to self-medicate.

The arbitrator concluded the applicant suffered a Class 4 marked impairment under the AMA Guides, meeting the definition of catastrophic impairment.

The applicant was awarded ongoing attendant care benefits of $5,056.80 per month and income replacement benefits of $256 per week.

The plaintiffs appealed a jury's assessment of damages arising from a motor vehicle accident, arguing the award was perverse and that the trial judge's threshold determination under the Insurance Act bound the jury on causation.

The Court of Appeal dismissed the appeal, finding the jury was entitled to reject the plaintiff's position on causation based on the evidence.

The Court also held that a trial judge's threshold determination does not constitute a binding finding of fact on causation for the jury.

The appellants appealed an order setting aside their third party claims against the plaintiff's employer and disability insurer.

The appellants argued that the third parties should be bound by the determination of issues in the main action to prevent inconsistent findings under Rule 29.01(c).

The Court of Appeal dismissed the appeal, finding that the appellants had no cause of action against the employer and that the possibility of inconsistent findings in subsequent litigation against the insurer was too speculative and contingent.