Austin P. Riley

The defendant brought a motion for a declaration that the plaintiff did not sustain a permanent serious impairment of an important physical, mental or psychological function following a motor vehicle accident.

The court applied the three-part test from Meyer v. Bright and considered the plaintiff's evidence, including testimony from his doctor and family members.

The court found that the plaintiff's impairments were permanent, serious, and substantially interfered with his activities of daily living.

The defendant's motion was dismissed, as the plaintiff met his onus of establishing that his impairments met the statutory threshold.

The plaintiffs successfully resisted a motion brought by the defendant to the counterclaim's insurer to remove the plaintiffs' lawyer for an alleged conflict of interest.

The plaintiffs sought costs on a substantial indemnity scale against the insurer and the insurer's lawyer personally.

The court declined to award costs against the lawyer personally, finding his conduct was not unreasonable or derelict.

However, the court awarded substantial indemnity costs directly against the non-party insurer, finding the motion was unnecessary, speculative, and caused needless expense to the plaintiff in preserving her choice of counsel.

Costs were fixed at $13,400 net of setoffs.