Andrew E. Franklin

The plaintiff Hollywood brought a motion for directions regarding the trial scheduling of two related actions arising from a motor vehicle collision.

The court considered the recent amendments to Rule 6.1.01 of the Rules of Civil Procedure regarding bifurcation.

To avoid inconsistent results, the court ordered that the issue of liability be heard in a joint trial.

However, considering the lack of common witnesses for damages, the potential savings in costs, and the practical challenges of scheduling a lengthy joint jury trial, the court directed that the issues of damages proceed in separate trials.

The applicant requested a reconsideration of a Licence Appeal Tribunal decision that denied entitlement to two treatment plans for chiropractic, massage, and physiotherapy services.

The applicant argued the Tribunal breached procedural fairness by declining to consider clinical notes and records, and erred in fact and law by finding the benefits of the therapy unclear.

The Tribunal dismissed the request, finding no breach of procedural fairness because the applicant failed to comply with a Case Conference Report and Order requiring pinpoint references to evidence.

The Tribunal also found no error of law or fact, noting that the hearing adjudicator properly weighed the medical evidence, including a section 44 physiatry assessment, and that reconsideration is not an opportunity to re-litigate the weight assigned to evidence.

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

The Licence Appeal Tribunal considered entitlement to multiple treatment plans for psychological, optometric, dietary, and physical rehabilitation services.

The Tribunal granted the plans for optometric services and a dietary assessment, finding them reasonable and necessary based on the medical evidence and the applicant's positive response to vision therapy.

The Tribunal denied the remaining plans, including psychological and physical therapy, finding that the applicant either failed to prove they were reasonable and necessary, failed to exhaust collateral benefits, or incurred expenses prior to submitting a plan.

The claim for a special award was dismissed, but interest was awarded on overdue benefits.

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

The adjudicator found that the applicant should be removed from the Minor Injury Guideline due to chronic pain with functional impairment.

However, the applicant was not entitled to a non-earner benefit because he did not suffer a complete inability to carry on a normal life, as he continued to work part-time and perform some daily activities.

The adjudicator approved several treatment plans for physiotherapy and an in-home assessment because the insurer failed to provide valid denial notices under s. 38(8) of the Schedule.

Claims for a chiropractic examination, an award, and costs were dismissed.

The applicant sought income replacement benefits (IRB) following a motor vehicle accident.

The Licence Appeal Tribunal found that the applicant failed to prove a substantial inability to perform the essential tasks of his employment.

Furthermore, the applicant failed to submit the required disability certificate and other necessary information in a timely manner.

The application for IRB, along with claims for interest and an award for unreasonable delay, was dismissed.

The applicant sought statutory accident benefits following a 2019 motor vehicle accident.

The respondent denied several treatment plans and income replacement benefits (IRBs), arguing the applicant's injuries fell within the Minor Injury Guideline (MIG).

The Tribunal found the applicant's chronic pain condition, supported by her family physician's records and a pain consultant's report, warranted removal from the MIG.

The Tribunal approved two physiotherapy treatment plans and one psychological assessment as reasonable and necessary.

However, the Tribunal denied a functional abilities assessment and a second psychological assessment due to a lack of submissions.

The Tribunal also denied post-104 IRBs, finding the applicant failed to demonstrate a complete inability to engage in any employment for which she was suited.

The applicant sought income replacement benefits and medical rehabilitation benefits following a motor vehicle accident.

The Licence Appeal Tribunal found that the applicant failed to prove a substantial inability to perform the essential tasks of his employment for the first 104 weeks, or a complete inability to engage in any employment thereafter.

The Tribunal also found the proposed treatment plans for physiotherapy and chiropractic services were not reasonable and necessary, as the medical evidence did not support continued intervention.

The application was dismissed.

The plaintiff sued her dentist for negligence and lack of informed consent following a wisdom tooth extraction that led to a severe facial space infection.

The plaintiff alleged the dentist failed to meet the standard of care by not taking updated X-rays, injecting local anesthetic near the infection, not referring her to a specialist, and not extracting an opposing tooth.

The court found that the plaintiff provided informed consent and that the dentist met the standard of care.

The court accepted expert evidence that the infection was brewing prior to the extraction and that the extraction likely mitigated its course.

The claim was dismissed.

The plaintiff brought a motion to set aside a 2017 order dismissing his action for delay, arguing he failed to appear due to accident, mistake, or insufficient notice, largely attributable to his prior counsel's failures.

The court considered the "forthwith" requirement for bringing such a motion, the lengthy delay and its reasons, the presence or absence of prejudice to the defendant, and the underlying merits of the plaintiff's case.

The court found that the plaintiff's previous lawyers were primarily responsible for the delay, that the defendant did not suffer actual, non-compensable prejudice, and that the plaintiff had a meritorious case.

The motion was granted, the dismissal order set aside, and costs were awarded to the plaintiff.

Following the settlement of two personal injury actions arising from a motor vehicle accident, the parties could not agree on the quantum of costs and pre-judgment interest (PJI).

The plaintiffs sought over $163,000 in costs, while the defendants argued for a lower amount based on the settlement value of $375,000.

The court rejected the plaintiffs' extensive bill of costs, finding it disproportionate and offensive to the principle of indemnity given likely contingency fee arrangements.

The court fixed costs at $84,750 (inclusive of HST), representing 20% of the net recovery, and awarded $14,354.75 in PJI, representing half of the plaintiffs' claim, due to the impossibility of apportioning the all-inclusive settlement funds.

The plaintiff brought a motion to strike the jury notices in two motor vehicle accident actions that were to be tried together.

The actions had already been set down for trial, requiring the plaintiff to seek leave under Rule 48.04(1).

The court denied leave, finding no evidence to explain the delay in bringing the motion and that the 'interests of justice' test was not met.

The court further held that even if leave were granted, it would not strike the jury notices, as the plaintiff failed to demonstrate that justice would be better served by a judge-alone trial.

The motion was dismissed with costs awarded to the defendants.

The applicant requested a reconsideration of a motion order that denied her request to adjourn a written hearing, refused to extend the time to deliver written submissions, and dismissed her application without a hearing.

The applicant argued that the Tribunal violated procedural fairness and made errors of law and fact.

The Tribunal dismissed the reconsideration request, finding that the applicant was afforded procedural fairness, had an opportunity to be heard, and that the original adjudicator properly exercised discretion in denying the adjournment and deeming the application abandoned after the applicant failed to comply with a Tribunal order to file submissions.

The plaintiff brought a motion to strike the defendants' jury notice on a provisional basis, arguing that the backlog of civil jury trials caused by the COVID-19 pandemic would result in prejudicial delay.

The defendants opposed the motion, arguing that a jury was best positioned to assess liability, credibility, and medical evidence regarding the plaintiff's alleged traumatic brain injury.

The court dismissed the motion, finding that there were no available dates for either jury or non-jury trials in 2023, making it speculative whether a non-jury trial would proceed substantially sooner.

The applicant sought statutory accident benefits following a 2016 motor vehicle accident.

The respondent determined the applicant's injuries fell within the Minor Injury Guideline (MIG) and denied claims for a non-earner benefit, chiropractic treatment beyond the MIG limit, and prescription medications.

The Tribunal found that the applicant failed to provide compelling evidence that pre-existing conditions prevented maximal recovery within the MIG, thus capping treatment at $3,500.

The Tribunal approved the disputed chiropractic treatment plan up to the remaining MIG limit, finding it reasonable and necessary for pain reduction.

The claim for a non-earner benefit was dismissed as the applicant did not suffer a complete inability to carry on a normal life, having resumed personal care and university studies shortly after the accident.

Claims for prescription medication reimbursement and a special award were also dismissed, though interest was awarded on the approved treatment plan.

The applicant requested a reconsideration of a Tribunal decision which found her accident-related injuries were predominantly minor and fell within the Minor Injury Guideline (MIG).

The applicant argued the adjudicator erred in fact and law by failing to properly consider psychological evidence and the context of the MIG.

The adjudicator denied the request, finding no significant error of law or fact that would have led to a different result, noting that the original decision appropriately weighed the conflicting medical evidence and the applicant's self-reporting.

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

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

The Tribunal found that the applicant sustained predominantly minor physical injuries and did not suffer from any accident-related psychological injuries that would remove her from the MIG.

As the $3,500 MIG limit had been exhausted, the applicant was not entitled to the claimed medical benefits and examination costs.

The application was dismissed.

The applicant was injured in a motor vehicle accident and sought an income replacement benefit (IRB) and various medical and rehabilitation benefits from the respondent insurer.

The insurer terminated the IRB and denied several treatment plans on the basis that the applicant no longer suffered a substantial inability to perform his pre-accident job tasks and that the treatments were not reasonable and necessary.

The Tribunal found that the applicant failed to prove a substantial inability to perform his employment tasks during the disputed period, relying on the insurer's expert assessments.

The Tribunal approved one chiropractic treatment plan as reasonable and necessary, noting the applicant's ongoing pain and the insurer's failure to conduct a timely examination, but denied the remaining plans for chiropractic, psychological, and occupational therapy services due to a lack of corroborating medical evidence.

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

The respondent insurer denied several treatment plans, arguing the applicant's injuries fell within the Minor Injury Guideline (MIG) and were subject to the $3,500 limit.

The Tribunal found that the applicant's physical injuries were soft tissue in nature and his psychological symptoms did not meet the criteria for a formal diagnosis that would remove him from the MIG.

The Tribunal also rejected the applicant's claim of chronic pain syndrome due to a lack of objective medical evidence and functional impairment.

The application was dismissed.

The applicant sought medical benefits for physiotherapy, chiropractic, and massage therapy services following a motor vehicle accident.

The respondent denied the treatment plan based on an insurer's examination.

The Licence Appeal Tribunal dismissed the application, finding that the applicant failed to prove the treatment was reasonable and necessary.

The Tribunal preferred the evidence of the respondent's orthopedic surgeon, who concluded the applicant had reached maximum medical recovery and would not benefit from further facility-based treatment, over the applicant's medical records which showed limited improvement.

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

The respondent denied the claims on the basis that the applicant's injuries fell within the Minor Injury Guideline (MIG) and the $3,500 limit had been exhausted.

The applicant argued they suffered from a psychological impairment and chronic pain taking them outside the MIG.

The Tribunal found insufficient evidence of a psychological impairment or chronic pain caused by the accident, preferring the respondent's physiatry assessment over the applicant's delayed psychological reporting.

The Tribunal concluded the injuries were predominantly minor, dismissing the application and denying the respondent's request for costs.