Ashu Ismail

The moving party, an insurance company, brought a motion for leave to appeal the unreported decisions of the motion judge dated January 4, 2021, and January 21, 2021.

The Divisional Court granted the motion for leave to appeal without costs.

The parties were directed to contact the court to schedule a case conference.

Following the successful dismissal of the plaintiff's action on a motion to strike, the defendants sought costs on a substantial indemnity basis and requested that the costs be paid personally by the plaintiff's lawyers.

The defendants argued that the plaintiff lacked the mental capacity to instruct her counsel to commence the action.

The court rejected the request for substantial indemnity and personal costs, noting that if the defendants genuinely believed the plaintiff was under a disability, they should have sought the appointment of a litigation guardian or challenged the lawyers' authority under the Rules of Civil Procedure.

Costs were awarded to the defendants on a partial indemnity basis.

The applicant sought judicial review of a preliminary decision by the Licence Appeal Tribunal (LAT) that stayed her application for statutory accident benefits until she consented to the release of insurer's examination reports.

The applicant had revoked her consent, arguing that the involvement of a third-party vendor compromised the independence of the assessments.

The Divisional Court dismissed the application for judicial review as premature, holding that absent exceptional circumstances, courts should not interfere with ongoing administrative processes until they are completed.

The court found no exceptional circumstances, noting that issues regarding the independence of medical assessments should be raised before the ultimate trier of fact.

The plaintiff brought a motion to strike the jury notice in a personal injury action arising from a motor vehicle accident, citing trial delays caused by the COVID-19 pandemic.

The plaintiff also sought an Order to Continue following the death of one of the defendants.

The court granted the Order to Continue but dismissed the motion to strike the jury notice, finding that the delay was partially attributable to the parties and that the anticipated delay in Toronto was not sufficient to deprive the defendants of their substantive right to a jury trial.

The plaintiff, Celia Yang, claimed $150 million in damages against her insurer and various service providers, alleging misconduct in the administration of her statutory accident benefits (SABs) claims.

The defendants brought a motion to strike the statement of claim, arguing it contravened pleading rules, the court lacked subject matter jurisdiction (as SABs disputes fall under the exclusive jurisdiction of the Licence Appeal Tribunal), and the claims failed to disclose a reasonable cause of action (including breach of Charter, PIPEDA, tort of bribery, spoliation, breach of contract, inducing breach of contract, fiduciary duty, and conspiracy).

The court dismissed the action, finding the statement of claim scandalous, the court lacked jurisdiction over SABs-related complaints, and the pleaded causes of action were untenable.

The defendants brought a motion to strike the plaintiffs' claims for intrusion upon seclusion and all claims against the individual defendant lawyer, Costantino.

The plaintiffs cross-moved to amend their Statement of Claim to add new defendants and causes of action for breach of confidence and Human Rights Code violations.

The court found that the plaintiffs failed to plead the necessary elements for the tort of intrusion upon seclusion, as the disclosure of a witness list in a quasi-judicial proceeding was legally justified and not highly offensive.

The court struck the privacy claims and dismissed the action against the lawyer, finding she owed no duty of care to the opposing party's witness and her actions were protected by absolute privilege.

The plaintiffs' motion to amend was dismissed as the proposed claims were doomed to fail.

The appellant insurer appealed a tribunal reconsideration decision that found its counsel was in a conflict of interest for acting in both a priority dispute and a benefits dispute against the same insured.

The tribunal also excluded examination under oath transcripts obtained in the priority dispute from being used in the benefits dispute.

The Divisional Court dismissed the appeal, holding that the tribunal's findings on conflict of interest and the circumvention of procedural protections under section 33 of the Statutory Accident Benefits Schedule were reasonable.

The applicant was injured in a motor vehicle accident and initially placed in the Minor Injury Guideline (MIG) by the respondent insurer, which precluded her from receiving attendant care benefits.

The applicant filed an appeal with the Tribunal and delivered a Notice of Constitutional Question challenging the constitutionality of the MIG and section 14 of the Schedule.

Subsequently, the insurer removed the applicant from the MIG and the parties resolved all substantive issues in dispute, including a claim for a section 10 award.

The insurer then raised a preliminary issue arguing that the constitutional challenge was moot.

The Tribunal agreed, finding that there was no longer a live controversy between the parties.

Furthermore, the Tribunal held that it lacked jurisdiction to decide the constitutional question because its statutory mandate had been exhausted by the resolution of the underlying accident benefits claim.

The application was dismissed.

The applicant sought a non-earner benefit following a motor vehicle accident, which the respondent insurer denied.

The applicant filed an appeal with the Licence Appeal Tribunal more than two years after the denial.

The respondent raised a preliminary issue that the claim was statute-barred under section 56 of the Statutory Accident Benefits Schedule.

The applicant requested an extension of time under section 7 of the Licence Appeal Tribunal Act.

The Tribunal found the application was filed at least two months late and the applicant failed to provide sufficient evidence or argument to satisfy the four-part test for an extension of time.

The claim for the non-earner benefit was dismissed as statute-barred.

The plaintiff brought a motion to exclude the defendant's testimony at trial or, alternatively, for a jury instruction regarding improper inferences.

The plaintiff raised concerns about photographs of vehicle damage and alleged racial bias in jury selection and defence strategy.

The court dismissed the motion to exclude the defendant's testimony, finding it relevant to causation and damages.

However, the court excluded the vehicle photographs due to lack of probative value (cropped images).

The court also addressed the racial bias concerns, finding no evidentiary basis for exclusion of testimony on that ground, but affirmed the importance of jury instructions on cultural backgrounds and cautioned against prohibited reasoning regarding accident impact and injury severity.

The client, Hui Yu, brought a motion seeking the production of his entire file and his daughter's entire file from his former lawyers, Gluckstein Personal Injury Lawyers P.C. The motion was brought in the context of an upcoming motion regarding the sufficiency of the lawyers' retainer and appropriate fees.

The client argued he needed the files to assess potential double billing and an extra fee charged on his daughter's file.

The lawyers opposed the request, arguing it was disproportionate, irrelevant, and an abuse of process.

The court granted the motion, finding that the files belonged to the client and that he was entitled to review them to determine relevancy and assess the fees charged.

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

The insurer denied income replacement benefits and medical benefits for chiropractic services, arguing the applicant missed the two-year limitation period.

The Tribunal held that the limitation period for income replacement benefits starts when the applicant receives or is deemed to receive the denial letter, and the insurer failed to prove when this occurred, allowing the claim to proceed.

However, the applicant conceded missing the limitation period for the medical benefits.

The Tribunal found it lacked jurisdiction under s. 7 of the Licence Appeal Tribunal Act to extend the limitation period, as it is fixed under a regulation rather than an Act, barring the medical benefits claims.

The appellant appealed the dismissal of her claim for statutory accident benefits by the Licence Appeal Tribunal.

The Divisional Court allowed the appeal, finding that the adjudicator erred by excluding opinion evidence from the appellant's treating family physician and by failing to properly assess the issue of causation.

The court held that the adjudicator's erroneous evidentiary ruling infected the fact-finding process and that the failure to state the proper test for causation rendered the reasons insufficient.

The decisions below were set aside and the matter was remitted to the LAT for a new hearing before a different adjudicator.

Following the dismissal of the insurer's appeal regarding a catastrophic impairment determination, the insured sought her legal appeal expenses in the amount of $23,052.00.

The insurer submitted that $3,699.44 was reasonable.

The Director's Delegate found the issues were of average complexity and the appeal was conducted in one morning.

Based on reasonableness and average awards in similar cases, the Delegate ordered the insurer to pay $3,750.00 for appeal legal expenses, inclusive of HST and disbursements.

The applicant requested a reconsideration of a Tribunal decision that dismissed her application for income replacement benefits and medical benefits under the Statutory Accident Benefits Schedule following a motor vehicle accident.

The applicant argued that the adjudicator displayed an apprehension of bias, improperly weighed medical evidence, and failed to apply the correct legal tests.

The Tribunal dismissed the reconsideration request, finding no reasonable apprehension of bias and concluding that the adjudicator made no significant errors of law or fact.

The Tribunal also rejected the applicant's attempt to introduce new evidence that could have been obtained prior to the original hearing.

The respondent's request for costs was also dismissed.

The insurer appealed an arbitrator's decision finding the respondent catastrophically impaired following a motor vehicle accident.

The insurer argued the arbitrator erred in law by allowing the respondent to file expert reports after the hearing commenced and by misapplying the AMA Guides in assessing whole person impairment and mental/behavioral disorders.

The Director's Delegate dismissed the appeal, finding no error of law in the arbitrator's procedural rulings under Rule 39 of the Dispute Resolution Practice Code, as the insurer had first filed late reports.

The Delegate also upheld the arbitrator's substantive findings, concluding they were based on reasonable assessments of expert credibility and evidence.

The applicants requested a reconsideration of a preliminary motion decision that allowed the insurer's counsel to act in the LAT proceeding despite also acting in a related priority dispute, and admitted Examination Under Oath (EUO) transcripts from that priority dispute.

The Vice-Chair granted the reconsideration, finding the Tribunal erred in law.

The priority dispute created an adversarial relationship, and the insurer failed to maintain a firewall to protect confidential information, resulting in a disqualifying conflict of interest.

Furthermore, admitting the EUO transcripts circumvented the mandatory notice requirements under section 33 of the Schedule.

Counsel was removed and the transcripts were excluded.

The respondent insurer requested reconsideration of a Tribunal order denying its request for the applicant to produce clinical notes and records from 29 doctors seen post-accident.

The Tribunal originally denied the request on the basis of proportionality, assuming most records would be in the hospital file.

On reconsideration, the Tribunal granted the request, noting that relevance was undisputed and that 18 of the 29 physicians' records were not included in the hospital file.

The applicant was ordered to produce the records of those 18 physicians, with the respondent undertaking to pay the associated invoices.

The applicant sought statutory accident benefits following a motor vehicle accident, claiming entitlement to two treatment plans for chronic pain and physiotherapy that were denied by the insurer.

Following a reconsideration order, the Licence Appeal Tribunal reheard the matter and found that the applicant suffered from chronic pain syndrome, supported by credible self-reporting and medical evidence.

The Tribunal concluded that both treatment plans were reasonable and necessary to treat the applicant's chronic pain and functional impairments.

The insurer was ordered to pay the disputed amounts of $9,464.40 and $1,312.63, along with interest on the overdue benefits.

Following an arbitration where the applicant was successfully designated as catastrophically impaired, the parties could not agree on expenses.

The arbitrator assessed the applicant's bill of costs globally, applying the Legal Aid Ontario tariff maximum of $150 per hour for counsel due to the complexity of the catastrophic impairment issue.

The arbitrator allowed the claimed hours in full but reduced certain disbursements that lacked supporting documentation or exceeded the maximums allowed under the Expense Regulation.

The insurer was ordered to pay $39,972.51 in expenses.