Andrew Scott Kerr

This endorsement addresses the costs of a successful motion to transfer an action from the East Region (Ottawa) to the Toronto Region.

The Defendant, as the successful moving party, sought costs.

The court reviewed the submissions and bill of costs, considering factors under Rule 57.01(1) and the principle of proportionality under Rule 1:04(1) of the Rules of Civil Procedure.

The court found the time spent by the moving party's counsel, particularly on cross-examinations deemed unnecessary, was not proportional to the straightforward nature of the transfer motion.

The Plaintiff was ordered to pay the Defendant partial indemnity costs in the all-inclusive amount of $1,990.00, significantly less than the $8,107.50 sought.

The defendant brought a motion to transfer the action and all related enforcement proceedings from the East Region (Ottawa) to the Toronto Region.

The plaintiff had previously obtained default summary judgment in Ottawa for credit card debt and was seeking to enforce a writ of seizure and sale against the defendant's home in Toronto.

The court applied the factors under Rule 13.1.02 of the Rules of Civil Procedure holistically.

Finding that the defendant lived in Toronto, the subject property was in Toronto, and both parties had Toronto counsel, the court concluded that Toronto was a significantly better venue for the remaining post-judgment steps.

The motion to transfer was granted.

The appellant appealed an Arbitrator's order that denied an adjournment and dismissed the application for arbitration regarding catastrophic impairment benefits.

After filing the Notice of Appeal, the appellant failed to deliver written submissions or respond to multiple inquiries from the Director's Delegate.

The Director's Delegate concluded that the appellant had abandoned the appeal and dismissed it.

The insurer, having successfully defended an appeal regarding a catastrophic impairment determination under the Statutory Accident Benefits Schedule, sought its legal expenses of the appeal.

The insured's counsel did not provide written submissions for the appeal but submitted a bill of costs for comparison.

The Director's Delegate found the insurer was entitled to its expenses and, noting the complexity of the catastrophic impairment issue and the preparation required, fixed the costs payable by the insured to the insurer at $6,000 inclusive of disbursements and HST.

Following an arbitration where the insurer successfully defended all issues in dispute, the insurer requested an expense hearing.

The applicant failed to submit any materials or respond to the insurer's cost submissions.

The arbitrator found that the applicant's claim for income replacement benefits was improper and vexatious, as she was operating a business while claiming benefits.

The arbitrator awarded the insurer its full claimed expenses of $30,967.21, noting the amounts were within the maximum limits permitted under the Expense Regulation and billed at the Legal Aid rate.

The Applicant sought a determination that she was catastrophically impaired following a 2002 motor vehicle accident.

At the scheduled arbitration hearing, the Applicant requested an adjournment to obtain expert reports, as she had no medical evidence to rebut the Insurer's assessments.

The Arbitrator denied the adjournment, finding that a further delay was unreasonable and unfair to the Insurer.

As the Applicant acknowledged she had no evidence to support her claim, the Application for Arbitration was dismissed.

The Insurer was awarded $4,015.54 in expenses.

During a jury trial, the plaintiff brought a motion under Rule 52.10 of the Rules of Civil Procedure to allow the jury to determine if past and future care costs were warranted, despite having called no evidence on these issues.

The plaintiff proposed that if the jury found such costs warranted, the quantum could be determined later by a judge.

The court dismissed the motion, finding that the plaintiff failed to exercise reasonable diligence in obtaining the necessary expert evidence before trial.

The court also held that bifurcating the issue would improperly remove the determination of the extent and quantum of future care costs from the jury.

The appellant appealed an Arbitrator's decision that he did not suffer a catastrophic impairment following a 2009 motor vehicle accident.

The central issue was whether the appellant suffered a marked impairment in the adaptation domain, largely based on his post-accident cannabis dependence and psychological issues.

The Director's Delegate upheld the Arbitrator's findings that the appellant's pre-accident cannabis use and behavioural issues were similar to his post-accident state, and that his impairment was only moderate.

The appeal was dismissed as the Arbitrator correctly applied the law and her factual findings were not subject to review on appeal.

The plaintiff brought a motion for leave to file an income loss report served less than 90 days before trial, contrary to Rule 53.03 of the Rules of Civil Procedure.

The defendant opposed the motion, arguing that the plaintiff had ample time to prepare the report over the 8-year history of the action.

The court held that 'undue delay' under Rule 53.08 refers to delay in the conduct of the trial, not the time taken to bring the matter to trial.

Since the defendant did not request an adjournment and there was no prejudice, the court granted the plaintiff leave to file the report.

The applicant sought post-104 income replacement benefits following a motor vehicle accident, claiming a complete inability to work due to physical and psychological injuries.

The insurer denied the benefits and presented surveillance and social media evidence showing the applicant actively operating a holistic business, working as a life coach, and giving motivational speeches.

The arbitrator found the applicant lacked credibility and preferred the evidence of the insurer's neuropsychologist over the applicant's experts, who were unaware of her business activities.

The application for income replacement benefits, a special award, and interest was dismissed, with expenses awarded to the insurer.

The applicant, a migrant worker from Jamaica, was injured in a motor vehicle accident while being transported to work.

He initially received WSIB benefits but later sought to claim statutory accident benefits from the motor vehicle insurer.

The insurer argued the applicant was precluded from proceeding to arbitration because he failed to provide notice within the time limit under section 32(1) of the Schedule.

The arbitrator found that the applicant, who was illiterate and unfamiliar with the Ontario accident benefits system, provided a reasonable explanation for the delay, as he was navigating the complex interaction between WSIB, tort, and accident benefits systems and seeking legal advice.

The applicant was permitted to proceed to arbitration.

The respondent sought costs of $3,308.48 against the applicant after the applicant's counsel missed multiple filing deadlines and delayed notifying the Tribunal.

The applicant's counsel submitted that his non-compliance was due to a serious illness, which was corroborated by a medical note.

The Tribunal found that while the counsel's behaviour was unreasonable and inconvenienced the respondent, the medical reason justified the behaviour and did not demonstrate a blatant disregard for the process.

The respondent's request for costs was dismissed.

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

The respondent denied several treatment plans for physiotherapy and a psychological assessment, arguing the applicant's injuries fell within the Minor Injury Guideline (MIG).

The Tribunal found that the medical evidence, including the applicant's own orthopaedic assessment, established that the injuries were predominantly minor soft tissue injuries.

The applicant failed to provide compelling evidence of a pre-existing medical condition or psychological impairment that would remove him from the MIG.

Consequently, the disputed treatment plans were deemed not reasonable and necessary, and the application was dismissed.

In a personal injury claim arising from a motor vehicle accident, the jury awarded the plaintiff general damages.

The defendants subsequently brought a threshold motion, arguing that the plaintiff's claim for non-pecuniary loss was barred because she failed to establish a permanent, serious impairment of an important physical, mental, or psychological function under the Insurance Act.

The court, applying the three-part Meyer v. Bright inquiry, found that while the plaintiff experienced intermittent pain, her impairment did not substantially interfere with her regular employment or most usual daily activities, considering her age and pre-accident lifestyle.

The court granted the defendants' motion, dismissing the plaintiff's claim for non-pecuniary damages.

In a civil jury trial for damages from a motor vehicle accident, the court ruled on whether a proposed jury question concerning the plaintiff's lost earning capacity should be submitted.

The court found insufficient evidence to allow the jury to reasonably calculate or quantify this loss without speculation, as there was no adduced evidence of the plaintiff's annual income before or after the accident.

Citing established jurisprudence, the court determined that a question should only go to the jury if there is "reasonable evidence" to support a judicial finding.

Consequently, the question regarding loss of earning capacity was not put to the jury.

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

After failing to file submissions for scheduled written and hybrid hearings, the applicant's counsel requested an extension of time and an adjournment, citing severe illness.

The Tribunal granted the adjournment to ensure procedural fairness, noting the applicant would be severely disadvantaged if forced to proceed without submissions.

The Tribunal set new deadlines for submissions on the preliminary issues, including the respondent's request for costs due to the delay.

The plaintiff appealed a Master's order dismissing her action against the police defendants for delay.

The plaintiff argued the Master erred by failing to consider her alleged mental illness, her involvement in multiple other proceedings, an order for trial together with another action, and by refusing to consider evidence filed in a companion motion.

The Divisional Court dismissed the appeal, finding no error of law, exercise of discretion on wrong principles, or palpable and overriding error in the Master's decision.

The insurer brought a preliminary issue motion arguing that the applicant's claim for non-earner benefits was statute-barred because she failed to apply for arbitration within two years of a clear and unequivocal denial.

The arbitrator found that the insurer's initial denial was premature and rendered ambiguous by subsequent contradictory communications and requests for further medical information.

The limitation period did not begin to run until a later, unequivocal denial was issued.

The motion was dismissed, and the claim was allowed to proceed.

The applicant sought arbitration for a catastrophic impairment determination and medical benefits following a motor vehicle accident.

The insurer raised preliminary issues, arguing the applicant failed to attend and submit to a psychiatric insurer examination and that her claims were barred by issue estoppel due to a previous arbitral decision.

The arbitrator found the applicant's behaviour at the examination, while challenging, did not amount to a failure to attend and submit, as the examination was abruptly terminated by the assessor.

The arbitrator also declined to apply issue estoppel, noting catastrophic impairment was not decided in the previous proceeding.

The issue of res judicata for specific medical benefits was deferred to the hearing arbitrator.

The applicant was awarded her expenses for the preliminary hearing.

The insurer sought its legal expenses following the dismissal of the insured's appeal regarding statutory accident benefits.

The insured did not provide a written response to the Bill of Costs but disputed entitlement to a portion of the expenses at the teleconference.

The Director's Delegate found the insured's late objection unfairly surprised the insurer and declined to reduce the hours on that basis.

Conducting a global assessment of reasonable expenses, the Director's Delegate ordered the insured to pay the insurer $10,000 in legal expenses, inclusive of disbursements and HST.