Alden M. Dychtenberg

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

The respondent stopped IRB payments in August 2022 due to a potential overpayment related to the applicant's receipt of long-term disability benefits.

The parties resolved the quantum of IRBs prior to the hearing.

The Tribunal found that the respondent unreasonably delayed the payment of IRBs by failing to reinstate payments despite having sufficient information and previously agreeing to do so.

The Tribunal ordered the respondent to pay a special award of 20% on the IRB payments withheld between August 2022 and January 2024, plus interest.

The applicant sought statutory accident benefits following a motor vehicle accident.

The respondent denied the claims for physiotherapy and massage therapy on the basis that the applicant's injuries fell within the Minor Injury Guideline (MIG).

The Tribunal found that the applicant's concussion diagnosis took him out of the MIG.

Furthermore, the Tribunal held that the respondent failed to provide proper medical reasons for denying the treatment plans under s. 38(8) of the Schedule.

As a result, the respondent was ordered to pay for the incurred expenses from the 11th business day after receiving the plans until a proper denial is provided, excluding a period of non-compliance with a s. 33 request.

The claims for the treatment plans being reasonable and necessary on their merits were dismissed, as was the claim for a special award.

The applicant sought statutory accident benefits following a motor vehicle accident.

The insurer denied benefits and requested the applicant attend insurer's examinations (IEs) to assess her ongoing entitlement to income replacement benefits.

The applicant failed to attend the IEs, arguing they were not reasonably necessary as her primary injuries were neurological, not physical.

The Tribunal found the IEs were reasonably necessary given the applicant's physical injuries and the physical nature of her pre-accident employment.

As the applicant failed to provide a reasonable explanation for her non-attendance, she was barred from proceeding with her application before the Tribunal.

The defendant brought three motions regarding trial consolidation, undertakings, refusals, and production from non-parties in two related motor vehicle accident actions.

The court declined to consolidate the actions but ordered them to be tried together.

The court also ordered the plaintiffs to submit to further examination for discovery regarding a post-discovery photograph and deleted social media/website content related to a potential business.

Additionally, the court ordered the production of a property damage file from a prior accident due to overlapping injuries.

Costs of $3,500 per action were awarded to the defendant.

The defendant Aviva General Insurance Company brought a motion seeking to amend its Statement of Defence and compel the plaintiffs, Johanna Van Dijk-Alac and John Alac, to attend various defence medical examinations.

The plaintiffs claimed psychiatric, neuropsychological, and physical injuries from a motor vehicle accident, and Mr. Alac claimed for lost guidance, care, and companionship.

The court granted Aviva leave to amend its Statement of Defence.

It ordered Ms. Van Dijk-Alac to attend psychiatric and neuropsychological examinations, and Mr. Alac to be available to the psychiatrist for collateral information, but denied Aviva the discretion to unilaterally change experts or pre-determine the number of examination sessions.

The court also denied Aviva's request to be relieved of its obligation to serve expert reports prior to the pre-trial.

The defendants moved for a stay of the plaintiffs' action until the plaintiff, Tan Duc Ngo, completed a neuropsychological assessment.

This assessment had been previously attempted but terminated due to the plaintiff's health issues, leading to a prior motion before Di Luca J. to compel re-attendance, which was denied without prejudice to renew if new evidence of improved health emerged.

The current motion for a stay was dismissed by Edwards J., who found it an attempt to circumvent Di Luca J.'s order without presenting the required new evidence.

However, the court, acting as case management judge, ordered the plaintiff's counsel to obtain a medical report addressing the plaintiff's current ability to undergo the assessment and to testify at trial, and to explain any discrepancies.

Costs were to be resolved by the parties or through written submissions.

The plaintiff, Edward Sobie, as executor of Stanley Sobie's estate, brought a motion for a status hearing, a timetable, and an extension of time to set the action down for trial, and to reconstitute the action.

The defendants opposed and brought cross-motions to dismiss the action for delay, failure to properly constitute the action, and failure to obtain an order to continue.

The court found that the plaintiff failed to provide an acceptable explanation for the significant delay and did not establish that the defendants would suffer no non-compensable prejudice.

The court also found that the action was not properly constituted from its inception and that the plaintiff failed to obtain an order to continue after the property's transfer.

Consequently, the plaintiff's action was dismissed with costs.

The applicant was injured in a motor vehicle accident and applied for a non-earner benefit, which the insurer denied due to his failure to attend four requested section 44 insurer examinations.

The insurer brought a preliminary issue motion to stay the arbitration until the applicant attended the examinations.

The arbitrator found that three of the four requested examinations (orthopedic, neurologist, and psychiatric) were reasonably necessary to evaluate the applicant's condition, but a neuropsychological assessment was not.

The arbitration was stayed pending the applicant's attendance at the three approved assessments.

In a personal injury action arising from a motor vehicle accident, the plaintiff moved for an order compelling the defendant to provide detailed particulars of surveillance conducted on the plaintiff.

The defendant agreed to disclose limited information but refused to provide full particulars where it did not intend to rely on the surveillance at trial.

The court held that the disclosure obligations under the Rules of Civil Procedure and the discovery process require full disclosure of surveillance particulars even if the defendant does not intend to use the evidence at trial.

Such disclosure assists parties in evaluating the strength of their cases and encourages settlement by preventing tactical surprise.

The motion was granted and the defendant was ordered to provide the requested surveillance particulars.

The appellant appealed the order of the trial judge.

The Court of Appeal found the trial judge's reasons to be exemplary and agreed with her analysis and conclusion.

The appeal was dismissed with costs fixed at $7,000.

The insurer brought a motion to adjourn the arbitration hearing pending the outcome of its application for judicial review of a prior appeal decision regarding the deductibility of a pension plan.

The arbitrator dismissed the request for a lengthy adjournment, noting the absence of an automatic stay and the need for an expeditious process.

However, the arbitrator granted a short adjournment to allow the insurer time to review and respond to an accountant's report that the applicant had served late.

The appellant, a declared vexatious litigant, sought to appeal an order denying him leave to continue an action.

The Court of Appeal quashed the appeal, noting that section 140(4)(e) of the Courts of Justice Act explicitly prohibits appeals from the refusal of leave.

The Court also rejected the appellant's argument that section 140(4)(e) contravenes section 15(1) of the Charter, finding it is not discriminatory.

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

The insurer sought to compel the applicant to attend four insurer's examinations (neurological, physiatry, psychological, and functional abilities) pursuant to section 42 of the Statutory Accident Benefits Schedule.

The arbitrator found that the neurological and psychological evaluations were reasonably necessary due to new medical information provided by the applicant's experts.

However, the physiatry and functional abilities evaluations were deemed unreasonable as they were either duplicative of previous Designated Assessment Centre (DAC) assessments or lacked sufficient justification.

In a dispute over statutory accident benefits, the insurer requested production of examination for discovery transcripts from a related tort action arising from the same motor vehicle accident.

The applicant objected, relying on the deemed undertaking rule in Rule 30 of the Rules of Civil Procedure.

The arbitrator held that under sections 20 and 22 of the Insurance Act, arbitrators have the jurisdiction to grant relief from the deemed undertaking rule pursuant to Rule 30.1.01(8).

Finding the transcripts relevant to credibility issues regarding pre-accident employment and earnings, and noting that the applicant waived privacy rights by disclosing the transcripts in the tort action involving the same insurer, the arbitrator ordered the applicant to produce the transcripts.

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

The applicant applied for arbitration.

At a pre-hearing, the insurer requested that the applicant attend independent medical examinations by a psychiatrist and a physiatrist under section 23(2) of the Schedule.

The applicant refused, arguing the requests were unreasonable given previous examinations.

The arbitrator found the requests reasonable because the insurer had little current medical information, the applicant's condition was evolving, and over a year and a half had passed since her last insurer examinations.

The applicant was ordered to attend, and the insurer was ordered to provide the resulting reports at least four weeks before the arbitration hearing.