Barbara Legate

The appellants appealed the dismissal of their medical malpractice action against the respondent surgeon.

The trial judge found the surgeon negligent for failing to obtain informed consent by not disclosing alternatives to surgery, but dismissed the action on causation, finding a reasonable person in the patient's circumstances would have proceeded with the surgery anyway.

The Court of Appeal upheld the trial judge's causation analysis, noting the surgeon had no legal obligation to make a specific recommendation for or against elective surgery, and the evidence supported the finding that the patient was 'surgery ready' and would have accepted the procedure.

The appellant appealed a jury verdict arising from a motor vehicle accident, arguing the verdict was unreasonable and that the respondent's counsel made a prejudicial jury address.

The Court of Appeal held that it was open to the jury to conclude the respondent steered into the oncoming lane to avoid an unidentified vehicle.

The court also found that a factual error in the respondent's jury address did not prejudice the appellant.

The appeal was dismissed with costs.

The appellant surgeon appealed a trial judgment finding him negligent in the performance of a mediastinoscopy, during which he unintentionally biopsied the respondent's oesophagus.

The trial judge had rejected the negligence theories advanced by the respondent's expert but found negligence on two unpleaded grounds: failure to take a smaller biopsy and failure to differentiate the oesophagus from the lymph node.

The Court of Appeal allowed the appeal, finding that the trial judge's conclusions were based on a manifestly incorrect finding of fact regarding biopsy size and inferences unsupported by the expert evidence.

The action was dismissed.

The appellants appealed a jury verdict, arguing that evidence regarding a walkway's failure to meet Building Code fire safety requirements was improperly admitted.

The Court of Appeal agreed the evidence was irrelevant but dismissed the appeal, finding its admission caused no substantial wrong or miscarriage of justice.

The trial judge had questioned the value of the evidence in his charge, and the defence's position at trial was that a retaining wall provided safe access, making the walkway a marginal factor.

The applicant, who was injured in a motor vehicle accident, sought an order for interim benefits pending her arbitration hearing.

The insurer had reduced her weekly benefits to recover an alleged overpayment.

The arbitrator dismissed the application for interim benefits, finding that the applicant failed to establish that her need was urgent and could not await a full hearing.

The evidence of financial hardship provided in her affidavit was deemed too vague and incomplete to justify an interim order.

The plaintiffs were injured in a motor vehicle accident caused by an intoxicated off-duty employee of the defendant employer.

The employee had consumed alcohol before, during, and after his shift, but the employer was unaware of his intoxication on the night in question.

The plaintiffs argued the employer owed them a duty of care because the employee was enrolled in an Employee Assistance Program for alcoholism.

The Court of Appeal held that the employer did not owe a duty of care to the plaintiffs, as the duty to provide a safe workplace does not extend to protecting the public from an employee's off-duty conduct.

The court also held that non-protected defendants are entitled to deduct collateral benefits from damage awards under section 267(1) of the Insurance Act.

The appellant was injured in a bicycle-motor vehicle collision and notified the respondents' insurer of her intent to sue.

The insurer scheduled independent medical examinations under s. 258.3(1)(d) of the Insurance Act.

The appellant refused to attend.

The respondents obtained a court order compelling her attendance.

On appeal, the Court of Appeal held that the statutory scheme does not confer jurisdiction on the court to compel a plaintiff to undergo a medical examination before an action is commenced.

The only penalty for non-compliance provided by the legislature is that the court may consider it when awarding costs under s. 258.3(9).

The appeal was allowed and the order compelling the examination was set aside.

The applicant sought ongoing weekly income benefits, rehabilitation assessments, and payment for psychological treatments following a 1993 motor vehicle accident.

The insurer had terminated weekly benefits and sought repayment of psychological treatment costs paid pending dispute resolution.

The arbitrator found that while the accident materially contributed to the applicant's psychological and physical condition, she was not continuously prevented from engaging in any occupation for which she was reasonably suited after July 1997.

The arbitrator also found that while ongoing psychological support was reasonable, the frequency of three times a week was excessive and induced iatrogenic dependency.

The applicant was ordered to repay $21,752.50 to the insurer for overpaid psychological treatments.

Claims for home assessments and a special award were dismissed.

The appellant insurer sought to appeal an interim arbitration order that refused to order the respondent to produce his farm ledgers for 1997 and 1998.

The Director's Delegate rejected the appeal, noting that appeals from interim orders are generally not allowed under the Dispute Resolution Practice Code to avoid delay and minimize complexity.

The Delegate found that allowing the appeal would be an undue intrusion into the ongoing arbitration process, as the arbitrator was in a better position to evaluate the relative merits of the parties' positions regarding the necessity of the documents.

The applicant was injured in a motor vehicle accident and received statutory accident benefits until they were terminated by the insurer.

The applicant alleged that an application for arbitration was mailed within the two-year limitation period but was lost by the postal service or the Commission.

The arbitrator found that the applicant failed to provide documentation proving the Commission received the application before the limitation period expired.

As arbitrators have no jurisdiction to extend the limitation period, the application was dismissed as out of time.

The insurer appealed an arbitration decision finding that the insured, a high school student injured in a motor vehicle accident, continued to qualify for Education Disability Benefits (EDBs) and was entitled to an offer for Loss of Earning Capacity Benefits (LECBs).

The Director's Delegate upheld the arbitrator's finding that the insured was substantially unable to continue his education, noting that the test involves an individualized inquiry and that mere attendance at school is not sufficient.

However, the Director's Delegate allowed the appeal regarding LECBs, concluding that the insurer's obligation to make an LECB offer is not triggered if it stops paying weekly benefits before the 104-week mark, pending the resolution of the dispute over entitlement.

The applicant, who sustained a severe brain injury in a motor vehicle accident, sought Education Disability Benefits (EDBs) for the period of July 12 to July 15, 1996, which marked 104 weeks post-accident.

The insurer had terminated EDBs just prior to this date.

The arbitrator found that the applicant suffered a substantial inability to continue his specific pre-accident educational path, despite his efforts to attend university part-time with accommodations.

The arbitrator also found that the applicant suffered a partial inability to carry on a normal life.

Furthermore, the arbitrator ruled that under the Statutory Accident Benefits Schedule, an insured only needs to demonstrate a partial inability to carry on a normal life at the exact 104-week mark to be entitled to a Loss of Earning Capacity (LEC) benefits offer, rejecting the insurer's argument that complete inability was required.

The appellant insurer appealed an interim arbitration decision, arguing that the arbitrator should not continue to conduct the hearing due to a reasonable apprehension of bias.

The Director's Delegate allowed the appeal to proceed solely on the issue of whether the arbitrator could continue.

The Director's Delegate found that the combination of procedural confusion, the rulings made by the arbitrator, and the contentious nature of the preliminary hearing established a reasonable apprehension of bias.

The appeal was allowed, and it was ordered that the arbitration hearing must be conducted by a different arbitrator.

The applicant was injured in a motor vehicle accident and received statutory accident benefits until the insurer terminated them.

The applicant brought a motion for interim weekly income benefits, and the insurer brought a cross-motion for the production of the clinical notes of the applicant's treating psychologist.

The arbitrator granted the motion for interim benefits, finding the applicant had established a prima facie case for entitlement and demonstrated financial need.

The arbitrator dismissed the insurer's motion for production of the clinical notes, finding the potential harm to the applicant's treatment outweighed the probative value of the notes, but ordered the production of raw testing data to the insurer's psychologist.

The insurer appealed an arbitration decision that found the insured met the post-156 week test for weekly income benefits and ordered the insurer to pay ongoing benefits and certain medical and rehabilitation accounts.

The insurer argued the arbitrator failed to properly analyze surveillance evidence and conflicting medical opinions regarding the insured's pain-based limitations.

The Director's Delegate dismissed the appeal, finding that the arbitrator provided an adequate explanation for her conclusions, properly considered the surveillance evidence, and reasonably determined that the disputed accounts were necessary expenses.

The insurer appealed an arbitrator's decision awarding the respondent ongoing weekly income benefits beyond the 156-week mark.

The respondent, a student at the time of the accident, suffered from chronic pain syndrome and post-traumatic headaches.

The Director's Delegate upheld the arbitrator's refusal to grant an adjournment for late-requested medical assessments, finding the request untimely.

The Delegate also upheld the finding that the respondent was continuously prevented from engaging in any suitable occupation or employment, noting the uncontradicted medical evidence supporting her severe limitations.

The appeal was dismissed.

The applicant was injured in a motor vehicle accident and received weekly income benefits for 156 weeks.

The insurer terminated benefits, arguing she was capable of returning to work.

The arbitrator found that while the applicant suffered from chronic pain and was disabled from full-time work commensurate with her background, she was capable of part-time employment.

The arbitrator ordered the resumption of weekly income benefits but allowed the insurer to deduct 80% of the income available from part-time employment under section 15 of the Schedule.

The applicant was also awarded certain rehabilitation expenses, but her claim for a special award was dismissed.

The Applicant was injured when he rode his bicycle into a pothole after being distracted by the sound of a car engine starting.

He applied for statutory accident benefits.

The preliminary issue was whether the incident constituted an 'accident' under section 2 of the Statutory Accident Benefits Schedule.

The Arbitrator found that the starting of a car engine constitutes the 'use or operation' of an automobile, and that this use indirectly caused the Applicant's injuries by distracting him and causing him to hit the pothole.

The Arbitrator concluded the Applicant was injured as a result of an accident.

The Applicant was injured in a motor vehicle accident and received weekly income benefits until the Insurer terminated them after 156 weeks.

The Applicant, who was a prospective university student at the time of the accident, claimed ongoing entitlement under section 12 of the Statutory Accident Benefits Schedule.

The arbitrator found that the Applicant's essential occupational tasks included those of an undergraduate student.

Accepting the medical evidence that the Applicant suffered from chronic pain and post-traumatic headaches, the arbitrator concluded that she was continuously prevented from engaging in full-time post-secondary studies or any comparable employment.

The Applicant was awarded ongoing weekly income benefits and her arbitration expenses, but her claim for a special award was dismissed.

The applicant was injured in a motor vehicle accident and claimed statutory accident benefits for university residence fees, arguing her injuries prevented her from commuting from home as originally planned.

The insurer paid for the first two years but disputed entitlement for subsequent years, alternatively arguing for a deduction of hypothetical commuting and meal costs.

The arbitrator found that the applicant's physical and psychological injuries, including whiplash and post-traumatic stress disorder, rendered her unable to commute daily.

The residence fees were deemed a reasonable rehabilitation expense under section 6 of the Statutory Accident Benefits Schedule.

The arbitrator also rejected the insurer's request to deduct hypothetical commuting costs, finding them speculative.