A. Mancuso

The appellant insurer appealed a License Appeal Tribunal reconsideration decision that ordered it to pay for a psychological assessment treatment plan because it failed to provide a timely denial notice under s. 38(8) of the Statutory Accident Benefits Schedule.

The Divisional Court allowed the appeal, holding that s. 38(11)2 only requires an insurer to pay for goods and services that are actually incurred during the period before a proper notice is given.

The court found that requiring payment for non-incurred expenses would result in a consumer windfall contrary to the purpose of the legislation.

The reconsideration decision was set aside and the decision of first instance was reinstated.

At a civil case conference requested by the defendant, counsel sought substantive orders regarding unanswered correspondence, undertakings, and a WAGG motion.

The court declined to make the requested orders, emphasizing that case conferences are for procedural matters and timetabling, not for obtaining substantive relief or enforcing civility between counsel.

The court directed the parties to bring formal motions if substantive relief was required.

Following the release of an endorsement, the defendants sought clarification regarding the admission of the plaintiff's solicitor's affidavit as fresh evidence on an appeal from a Master's decision.

The court clarified that even if the defendants had not consented, the affidavit would be admitted.

The court found that the failure to meet the due diligence requirement was due to the plaintiff's solicitor's negligence and inadvertence.

It was appropriate to admit the evidence, as the interests of the innocent defendants regarding a fair trial and costs could be protected.

The plaintiff appealed an order of the Master dismissing a motion to set aside the Registrar's dismissal of the action for delay under Rule 77.08.

The Divisional Court admitted fresh evidence in the form of an affidavit from the plaintiff's solicitor, which demonstrated that the delay was entirely due to the solicitor's negligence and inadvertence, not the plaintiff's fault.

Finding no intentional or contumelious default and no serious prejudice to the defendants that would threaten a fair trial, the court allowed the appeal, set aside the dismissal, and ordered the plaintiff to pay costs thrown away.