Alexa Duggan

The appellant appealed a Licence Appeal Tribunal decision finding he did not suffer a 'catastrophic impairment' under the Statutory Accident Benefits Schedule.

The appellant argued the tribunal applied the wrong legal test and violated procedural fairness in assessing his functional impairments.

The Divisional Court dismissed the appeal, finding the tribunal applied the correct legal standards and the appellant's arguments were impermissible attempts to re-weigh factual evidence on an appeal limited to questions of law.

Following a successful 12-day jury trial where the plaintiffs were awarded $2,170,188 in damages (net $1,749,690.54), the court addressed the parties' dispute over costs.

The plaintiffs sought partial indemnity costs until their offer to settle and substantial indemnity thereafter, arguing they "beat" their offer.

The defendants sought reductions for costs related to statutory accident benefits (SABS) litigation, an interlocutory motion to add a party, and a Workplace Safety and Insurance Appeals Tribunal (WSIAT) hearing, as well as certain disbursements.

The court, applying Rule 57.01 factors, fixed the plaintiffs' costs at $478,750.00 (inclusive of HST and disbursements) and allowed the defendants a $5,000 deduction for the collateral benefits motion, resulting in a net award of $473,750.00 to the plaintiffs.

The decision disallowed costs for the WSIAT hearing, the interlocutory motion, and certain disbursements (meals, courier, copying, adverse costs insurance), while partially allowing SABS-related costs due to the benefit derived by the defendants.

This addendum clarifies and corrects the court's previous Reasons released on December 5, 2023, regarding the application of a statutory deductible to a Family Law Act award.

Following a jury trial, the court had initially misunderstood the parties' agreement, stating no deductible applied to Sandra McCurdy's $65,000 award.

This addendum rectifies that, confirming the award is subject to the statutory deductible of $22,183.63, resulting in a revised total net judgment for the plaintiffs.

Following a jury trial for damages arising from a motor vehicle accident, the court determined whether long-term disability benefits received by the plaintiff from a private Manulife policy were deductible from the jury's award for past and future income loss.

The court held that the Manulife benefits met the criteria under s. 3(7)(d) of Ontario Regulation 34/10, as they were offered to employed persons and the maximum benefit was calculated with reference to employment income.

Consequently, the benefits were deemed payments under an income continuation benefit plan, making them deductible from the income loss award and subject to assignment under s. 267.8 of the Insurance Act.

The applicant was involved in a 2019 rear-end motor vehicle accident and sought statutory accident benefits, including a non-earner benefit and various treatment plans.

The respondent denied the benefits, arguing the applicant's injuries fell within the Minor Injury Guideline (MIG) and that her ongoing symptoms were attributable to a prior 2014 accident.

The Tribunal found that the applicant failed to provide compelling medical evidence that her pre-existing chronic pain prevented her from achieving maximal recovery within the MIG.

The Tribunal also found the applicant did not meet the rigorous test for a non-earner benefit, as she could not establish a complete inability to carry on a normal life caused by the 2019 accident rather than her pre-existing condition.

The application was dismissed.

This endorsement resolves two costs issues.

First, the plaintiffs' successful motion to amend their claim to $200,000, bringing it within the simplified procedure due to the death of a plaintiff.

The court awarded the plaintiffs $5,000 in partial indemnity costs for this motion, finding it was not an "indulgence" and that the defendants' opposition was unsuccessful.

Second, the defendants' claim for costs under Rule 76.13, which applies when a claim is amended to simplified procedure.

The court found the plaintiffs' delay in bringing the amendment relevant to these costs.

While acknowledging some costs were unnecessarily incurred by the defendants in preparing for an ordinary trial, the court significantly reduced the defendants' claimed amount for witness preparation, deeming it excessive and disproportionate.

Ultimately, the court awarded the defendants $8,000 under Rule 76.13, resulting in a net award of $3,000 to the defendants, payable within 90 days.

The plaintiffs brought a motion to amend their Statement of Claim to reduce the damages claimed from $950,000 to $200,000 and to continue the action under the simplified procedure, following the death of the primary plaintiff which eliminated the claim for future care costs.

Because the trial record had already been filed, leave was required under Rule 48.04(1).

The court granted leave, finding the plaintiff's death constituted a substantial and unexpected change of circumstances.

The court also granted the amendment under Rule 26.01, finding it was in the interests of justice to proceed with a 5-day simplified trial and that the defendants would suffer no prejudice that could not be compensated by costs or an adjournment.

The applicant sought statutory accident benefits following a 2015 motor vehicle accident.

The Tribunal found the applicant was not entitled to an income replacement benefit because she failed to comply with section 57(2) of the Schedule by not engaging in recommended psychological treatment for her psychological impairments.

The Tribunal granted the claims for medical cannabis and occupational therapy services because the respondent failed to provide proper denial notices under section 38(8) of the Schedule.

The request for an electric mattress and elongated toilet was dismissed as the devices were found to be reasonable but not necessary.

A claim for chiropractic services was found payable directly to the treatment provider.

The applicant sought statutory accident benefits after slipping and falling while clearing snow off his parked vehicle.

The respondent insurer denied the claim, arguing the incident did not meet the definition of an 'accident' under the Statutory Accident Benefits Schedule.

The Tribunal held that the applicant was engaged in the ordinary use and operation of the vehicle at the time of the fall, satisfying both the purpose and causation tests.

The Tribunal found no intervening act and concluded the vehicle was the dominant feature of the incident.

The preliminary issue was resolved in favour of the applicant, entitling him to claim accident benefits.