Ashu Ismail

The applicant successfully challenged a contingency fee agreement with her former lawyers, resulting in the agreement being declared void and an order for the assessment of the lawyers' accounts.

The respondents' subsequent motion to reopen the application was dismissed.

In this costs decision, the court awarded the applicant costs of the application on a partial indemnity basis and costs of the motion on a substantial indemnity basis, noting the respondents' aggressive opposition and unfounded allegations of dishonesty.

The appellant sought to appeal an interlocutory decision of the Licence Appeal Tribunal (LAT) that denied her motion to remove the respondent insurer's lawyer for an alleged conflict of interest.

The Divisional Court dismissed the appeal for want of jurisdiction.

The Court held that section 11 of the Licence Appeal Tribunal Act, 1999 only permits appeals from final decisions, not interlocutory ones.

In doing so, the Court declined to follow recent Divisional Court decisions that suggested the Court had discretion to hear interlocutory appeals in exceptional circumstances, reaffirming older jurisprudence that statutory appeal rights must be strictly construed.

The applicant sought a determination of catastrophic impairment and entitlement to various medical and rehabilitation benefits following a motor vehicle accident.

The Tribunal found that the applicant was not catastrophically impaired, as he only demonstrated a moderate impairment in adaptation and a 37% whole person impairment, falling short of the required thresholds.

The Tribunal approved three treatment plans for chiropractic and massage therapy up to the non-catastrophic policy limits, but dismissed the remaining claims as the limits were exhausted.

The applicant's claim for an award under Regulation 664 was dismissed, as the insurer's reliance on its assessors did not constitute unreasonable conduct.

However, the Tribunal awarded $500 in costs against the respondent because its counsel unreasonably interfered with a summonsed witness, which delayed the hearing.

During a trial regarding an insurance claim denial, the plaintiff brought a mid-trial motion to exclude the testimony of two of the defendant's witnesses.

The plaintiff argued that the defendant's financial compensation of these witnesses for their preparation time and trial attendance constituted an abuse of process.

The court found that the witnesses, who were former employees and agents of the defendant, were 'professional' fact witnesses who required extensive preparation time to review voluminous documents.

The court held that compensating such witnesses for their preparation time is reasonable and does not automatically taint their evidence.

The motion to exclude the testimony was dismissed.

The applicant challenged contingency fees charged by her former personal injury lawyers in relation to a tort settlement and an accident benefits settlement arising from a motor vehicle accident.

The court found special circumstances under the Solicitors Act, including non-compliance with the statutory and regulatory requirements governing contingency fee agreements, material drafting errors, failure to provide the client with a copy of the agreement, and lack of clarity about when accident benefits fees would increase from 15% to 30%.

Applying the fairness and reasonableness analysis for contingency fee retainers, the court held the agreement was unenforceable and ordered an assessment of the lawyers' fees, charges, and disbursements.

Pending assessment, the court ordered immediate repayment of half of the fees charged on the accident benefits settlement, with HST and interest, but declined immediate repayment on the tort file.

The applicant, who sustained catastrophic injuries as a pedestrian struck by a truck, sought attendant care benefits of $6,000 per month and various treatment plans.

At the outset of the hearing, the applicant brought a motion seeking the adjudicator's recusal based on an alleged reasonable apprehension of bias, citing the adjudicator's past decision record.

The Tribunal dismissed the recusal motion, finding the statistical analysis unverified and insufficient to overcome the presumption of impartiality.

On the merits, the Tribunal found that the applicant failed to prove she had incurred attendant care expenses beyond what the insurer had already paid.

The Tribunal also declined to deem the expenses incurred under s. 3(8) of the Schedule, finding the insurer had not unreasonably withheld or delayed payments.

The applicant's claims were dismissed, and costs of $500 were awarded to the respondent for unreasonable motions brought by the applicant.

The applicant brought a motion seeking an order from the Tribunal to state a case to the Divisional Court for a contempt hearing, alleging that the respondent's counsel interfered with a summonsed witness and violated the Rules of Professional Conduct.

The Tribunal found that the respondent's counsel's conduct, while uncooperative, did not establish a prima facie case for contempt of court.

The motion was dismissed.

The defendants, Fowler Construction Company Limited and The Corporation of the City of Toronto, brought a motion under Rule 33.01 of the Rules of Civil Procedure to compel the plaintiff, Tennisha Pulford, to attend a defence neuropsychological examination.

The plaintiff opposed, arguing the motion lacked evidence and sought to corroborate a deficient prior expert opinion.

The court granted the motion, emphasizing the principle of "trial fairness" and the need for "matching reports" from experts in the same specialty, particularly given the plaintiff's assertion of cognitive and neurological damage.

Despite a noted deficiency in the defendants' supporting evidence, the court found the need for the examination outweighed this, and that it would not delay the trial.

No costs were awarded due to the evidence deficiency.

The applicant in a statutory accident benefits dispute sought to summons the respondent's insurance adjuster to testify regarding the handling of the claim, specifically concerning a potential award for unreasonable delay.

The respondent opposed the summons, arguing the adjuster should not have to testify, or alternatively, should only be subject to examination-in-chief after the applicant's case.

The Tribunal held that the adjuster's testimony was relevant and could be summonsed.

However, because the applicant called the adjuster, the questioning must begin as an examination-in-chief, subject to a potential request to cross-examine if the witness proves hostile.

The Tribunal also found the summons invalid because it was served via email rather than personally as required by the Statutory Powers Procedure Act, and declined to order substituted service without evidence of failed attempts at personal service.

The respondent was ordered to provide the adjuster's address to facilitate personal service.

The appellant appealed a Superior Court decision that dismissed her action for lack of subject matter jurisdiction and struck her pleadings as frivolous, scandalous, and vexatious.

The core of her claim concerned how her insurer handled her statutory accident benefits claims, alleging a conspiracy with healthcare practitioners to stage examinations and produce false reports, and breach of privacy.

The Court of Appeal affirmed the motion judge's finding that the Licence Appeal Tribunal has exclusive jurisdiction over disputes related to statutory accident benefits under s. 280 of the Insurance Act, regardless of how the claims are framed.

The Court also upheld the denial of leave to amend pleadings and dismissed the appeal regarding costs due to procedural non-compliance and lack of error in principle.

The applicant requested a reconsideration of a previous decision that dismissed her application for caregiver and non-earner benefits on the grounds of res judicata and being statute-barred.

The applicant argued that the Tribunal erred in fact and law and violated procedural fairness, specifically regarding the start date of the limitation period and the deemed receipt of the denial letter.

The Vice Chair found no errors of fact or law, noting that the applicant failed to provide evidence at the original hearing that the denial letter was mailed rather than given on its date.

The request for reconsideration was dismissed as the applicant was attempting to re-argue her case.

The appellant appealed the summary judgment dismissal of his action against the City of Toronto, which was based on his failure to provide timely notice under s. 42(6) of the City of Toronto Act, 2006, and the absence of a reasonable excuse for the delay.

The Court of Appeal affirmed the motion judge's decision, finding no palpable and overriding errors in her conclusion that the appellant failed to establish a reasonable excuse for the three-year delay in providing notice, despite having sufficient information to investigate earlier.

The applicant abandoned their application for judicial review.

The respondent sought costs of $35,000 on a substantial indemnity basis or $25,000 on a partial indemnity basis.

The Divisional Court found the requested amounts to be far in excess of what is normally awarded in such cases and fixed costs at $10,000 all-inclusive, payable by the applicant to the respondent.

The plaintiff appealed an Associate Judge's order requiring her to attend three independent medical examinations, re-attend discovery, and restricting her counsel from communicating with defence experts.

The defendants cross-appealed the denial of a pleading amendment alleging the plaintiff was a 'sophisticated litigant' who might exaggerate her claims.

The Superior Court upheld the denial of the pleading amendment, the discovery re-attendance, and the neuropsychological examination.

However, the court set aside the orders for orthopedic and vocational assessments due to insufficient evidence and lack of jurisdiction for the Associate Judge to order an assessment by a non-health practitioner.

The restriction on counsel communicating with defence experts was upheld but varied to expire once the expert report is completed.

The applicant brought a motion seeking an order to refer the matter to the Divisional Court for a contempt hearing after the respondent's occupational therapist failed to attend the hearing despite being served with a summons.

The respondent took no position.

The adjudicator found that the witness was properly served and failed to attend without providing reasons.

Given the importance of the witness's evidence to the catastrophic impairment determination, the motion was granted and the matter was referred to the Divisional Court.

The applicant, injured in a motor vehicle accident, sought interim benefits pending a hearing on whether he was catastrophically impaired.

The applicant argued that the Tribunal had jurisdiction to award interim benefits under the Statutory Powers Procedure Act and the Licence Appeal Tribunal Act.

The Tribunal dismissed the motion, finding that the Legislature deliberately removed provisions relating to interim orders from the Insurance Act and that no regulation currently grants the Tribunal jurisdiction to order interim benefits.

The appellants appealed a motion judge's decision striking their claims for breach of privacy, breach of confidence, and punitive damages against an insurer and its counsel.

The claims arose after the appellant's friend attended a Licence Appeal Tribunal case conference as a witness, and the insurer's counsel reported this to the insurer, who subsequently terminated the friend's employment.

The Court of Appeal dismissed the appeal, finding that the attendance at the tribunal and the provision of a witness list did not constitute private information, and that the insurer's counsel owed no duty to the appellants.

Furthermore, any claim regarding the insurer's bad faith handling of the accident benefits claim was barred by section 280 of the Insurance Act.

The applicant in a statutory accident benefits dispute brought a motion during the hearing to call two additional witnesses and to enter new documentary evidence.

The respondent opposed the addition of the witnesses but consented to the documentary evidence.

The Tribunal dismissed the request to add the witnesses, finding it would violate a prior disclosure order and cause unjustified delay, noting the evidence could be partially deduced from the admitted documents.

The request to enter the new documentary evidence was granted on consent.

The non-party insurer sought costs for two motions regarding summonses issued by the plaintiff, which were previously found to be an attempt to abuse the court's process.

The insurer claimed over $79,000 on a substantial indemnity basis.

The court declined to award substantial indemnity costs, finding that an abuse of process finding on a summons does not automatically justify an elevated scale.

Applying the principle of fairness and reasonableness, the court fixed costs at $18,930, noting that the two motions should have been heard together and the amount claimed was disproportionate for relatively straightforward motions.

The non-party insurer, Gore Mutual Insurance Company, brought a motion to quash four summonses issued by the plaintiff under Rule 39.03(5).

The plaintiff sought to examine four Gore employees in connection with an underlying motion brought by Gore to vary a Rule 30.10 production order.

The court granted the motion and quashed the summonses, finding that the intended examinations were unnecessary, would not enhance the record for the underlying motion, and appeared to be an abuse of process aimed at obtaining advance discovery for a separate insurer misconduct claim.