Ashley A. Shmukler

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

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

The applicant argued for removal from the MIG due to pre-existing conditions, a meniscal tear, chronic pain, and psychological impairments.

The Tribunal found that the applicant failed to prove on a balance of probabilities that his injuries warranted removal from the MIG.

As the $3,500 MIG limit was already exhausted, the claims for additional physiotherapy, psychological services, and a social work assessment were dismissed.

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

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

The applicant argued she should be removed from the MIG due to chronic pain and psychological impairments.

The Tribunal found the applicant's evidence regarding chronic pain to be inconsistent and preferred the respondent's psychological expert over the applicant's.

The Tribunal concluded the applicant's injuries were predominantly minor and she was not removed from the MIG.

As the $3,500 MIG limit was exhausted, the treatment plans were not payable.

The respondent's request for costs was denied.

The appellant insurance company sought its legal expenses following a successful appeal where it was determined that the respondents had staged an accident and were required to repay accident benefits.

The respondents did not participate in the proceedings.

The Director's Delegate reviewed the appellant's Bill of Costs and found the claimed legal fees, based on the legal aid rate, and disbursements to be reasonable.

The respondents were ordered to pay the appellant $2,010 for its legal appeal expenses.

The applicant was injured in a motor vehicle accident and sought payment for a $2,200 chronic pain assessment.

The insurer denied the benefit, arguing the applicant's ongoing pain was related to her pre-existing Crohn's disease rather than the accident.

The Tribunal found the assessment was reasonable and necessary, noting the applicant had no history of such pain prior to the accident and had consistently sought treatment for over a year.

The Tribunal ordered the insurer to pay the cost of the assessment plus interest.

The applicant brought a motion to amend their witness list and request summonses for two witnesses, Christopher Lun and Douglas Young, ahead of an upcoming hearing.

The Tribunal allowed the applicant to replace one witness and add a psychologist on consent.

The Tribunal ordered that a summons be issued for Mr. Lun, the respondent's adjuster, upon the applicant complying with Rule 8.2.

However, the Tribunal refused to add Mr. Young, the adjuster's manager, as a witness, finding the applicant failed to provide sufficient evidence that he was a necessary or relevant witness regarding the issue of a special award.

The applicant's legal counsel brought a motion to be removed from the record due to an inability to contact the applicant.

The insurer brought a motion to dismiss the application for arbitration and sought costs.

The arbitrator granted the motion to remove counsel from the record, finding that due diligence was exercised.

The arbitrator also dismissed the application for arbitration as frivolous, vexatious, or commenced in bad faith because the applicant failed to participate in any of the proceedings.

The insurer was awarded $500 in expenses for unnecessarily prolonging the arbitration process.

The defendant driver brought a motion for summary judgment seeking dismissal of the action against him following a motor vehicle collision involving an unidentified vehicle that turned left across his path.

The plaintiff was a passenger and also sued his insurer under unidentified automobile coverage.

The insurer brought a cross-motion arguing that the driver was at least partially negligent, which would negate the insurer’s liability.

Applying Rule 20 of the Rules of Civil Procedure, the court found no genuine issue requiring a trial and concluded that the driver failed to exercise reasonable care in poor visibility and slippery winter road conditions.

The court held the driver was at least 1% liable for the collision and dismissed the claim against the insurer.

The applicant applied for statutory accident benefits following a motor vehicle accident.

After failing to attend two pre-hearing conferences and the scheduled arbitration hearing, the applicant's counsel was permitted to withdraw from the proceeding.

As no one appeared on behalf of the applicant to tender evidence, the arbitrator dismissed the claims for non-earner and medical benefits.

The applicant was ordered to pay $1,500 for the insurer's arbitration expenses.

The plaintiff brought a motion to amend the statement of claim to substitute a named individual for a previously unidentified “John Doe” defendant and to add another individual as a new defendant after the limitation period had expired.

The court considered Rules 5.04 and 26.01 of the Rules of Civil Procedure together with the discoverability principle under the Limitations Act, 2002.

The evidentiary record showed only minimal efforts by the plaintiff to identify the additional proposed defendant prior to the expiry of the limitation period.

The court held that the plaintiff failed to demonstrate due diligence in attempting to discover the proposed defendant’s identity and that the amendment could not be justified on the basis of discoverability or misnomer.

The request to add the additional defendant was dismissed, while the substitution of the identified individual for “John Doe” was permitted on consent.

The plaintiff brought a motion under Rule 26.01 of the Rules of Civil Procedure seeking leave to amend the statement of claim arising from a motor vehicle accident to advance an uninsured/underinsured claim against the insurer under her husband’s policy.

The defendants opposed the amendment, arguing that it constituted a new cause of action outside the limitation period and that the doctrine of misnomer did not apply.

The court held that although the misnomer doctrine was not satisfied, the evidence did not establish that the limitation period had expired and the proposed amendments were legally tenable.

The court emphasized that amendments must be granted unless non-compensable prejudice is demonstrated and that the merits of the proposed claim should not be determined on the motion.

Finding no prejudice that could not be compensated by costs or adjournment, the court granted leave to amend.