Brian J. Smith

The appellant, who suffered a catastrophic brain injury in a 1999 motor vehicle accident, appealed and sought judicial review of a Licence Appeal Tribunal decision regarding his entitlement to attendant care benefits.

The LAT had awarded a minimal monthly amount, focusing on the care actually provided by his family rather than his need for supervisory care due to his inability to respond to emergencies.

The Divisional Court allowed the appeal and granted the judicial review, finding that the adjudicator erred in law by failing to apply the correct legal test under the 1996 SABS and that the decision was unreasonable.

The matter was remitted for a new hearing before a different adjudicator.

The applicant, who suffered a catastrophic brain injury, sought quantification of attendant care benefits and interest owed following a previous Tribunal decision.

The respondent had paid a lesser amount, unilaterally deducting alleged overpayments without proper notice or explanation.

The respondent argued the application was barred by res judicata and abuse of process due to a previously dismissed motion for clarification.

The Tribunal found it had jurisdiction and that res judicata did not apply as the quantification dispute was a new issue.

The Tribunal ordered the respondent to pay the differential calculated by the applicant's accountant, less an agreed top-up.

Furthermore, the Tribunal granted a 15% special award under s. 10 of Reg. 664, finding the respondent's failure to communicate its rationale for the deductions was unreasonable and inflexible.

The appellant father appealed an interim order allowing the respondent mother to relocate with their two children from Toronto to Winnipeg.

The mother sought the move after obtaining a higher-paying job in Winnipeg, where she also had extended family support.

The father argued the motion judge erred in finding a material change in circumstances, applying a summary judgment test, and failing to assess the impact on his relationship with the children.

The Divisional Court dismissed the appeal, finding no error of law or palpable and overriding error of fact in the motion judge's application of the Gordon v. Goertz and Barendregt frameworks, and noting the motion judge had appropriately considered the children's best interests under the Divorce Act.

The court denied the defendants' motion to adjourn a scheduled trial pending the outcome of a Workplace Safety and Insurance Appeals Tribunal (WSIAT) application.

The court found that the defendants delayed bringing the application and that the interests of justice, including the plaintiff's need for timely resolution and access to treatment, outweighed the defendants' arguments.

The court ordered the trial to proceed as scheduled and awarded costs to the plaintiff.

The applicant suffered a catastrophic brain injury in a 1999 motor vehicle accident.

The respondent insurer initially paid attendant care benefits (ACB) but reduced and then suspended them in November 2000 without proper notice.

The applicant sought retroactive and ongoing ACB at 24-hour care levels.

The Tribunal found that 24-hour care was not medically necessary, as the applicant had achieved a level of independent living with family support.

The Tribunal upheld the $120.40 monthly rate but ordered a top-up for two six-month periods following changes in living arrangements.

The Tribunal also awarded a 10% penalty under section 10 of Regulation 664 due to the insurer's 20-year delay in reinstating the suspended benefits, along with 2% monthly interest under the 1996 Schedule.

Jevco Insurance Company sought reconsideration of a Tribunal decision awarding C.W. retroactive Attendant Care Benefits with interest.

Jevco argued the Tribunal made errors of law and fact regarding the award of interest, the imposition of a fiduciary duty, findings on Jevco's coverage denial, and the application of the pay-first provisions under O. Reg. 283/95.

The Tribunal dismissed the reconsideration request, finding that Jevco's non-coverage position in the related tort proceeding justified C.W.'s delay in applying for benefits, and that the unique circumstances of the case meant the pay-first provisions did not apply.

The original decision was upheld.

Following a successful motion by the defendant to compel the plaintiff to attend a neuropsychological assessment, which necessitated a trial adjournment, the parties made written submissions on costs.

The court awarded the defendant partial indemnity costs of $4,868.71 for the motion.

However, because the defendant delayed in arranging the assessment and notifying the plaintiff, the court awarded the plaintiff $3,762.90 for costs thrown away on wasted trial preparation.

The net costs award of $1,106.71 was ordered payable by the plaintiff to the defendant in any event of the cause.

The defendant, Diane Marie Daniher, brought a motion seeking leave to compel the plaintiff, Ryan Nelson, to attend an independent neuropsychological examination.

The motion was brought after the action had been placed on a trial list, requiring leave under Rule 48.04(1).

The court found that a recently served neuropsychological report by the plaintiff's expert, Dr. Cancelliere, presented an unexpected and substantial change in evidence regarding the severity and etiology of the plaintiff's traumatic brain injury, differing from a previous expert's opinion.

The court granted leave and ordered the examination, concluding that the prejudice to the defendant in proceeding to trial without an opportunity to respond to the new expert evidence outweighed the prejudice to the plaintiff from an inevitable trial adjournment.

The applicant, a pedestrian who sustained catastrophic injuries when struck by a vehicle, sought retroactive attendant care benefits from the date of the accident in 2007 until she formally applied in 2015.

The respondent insurer had denied coverage in a related tort action for years before finally admitting it insured the vehicle.

The Tribunal found that it was initially impossible, and later impractical, for the applicant to submit her application earlier due to the insurer's non-coverage position and failure to notify her of her rights.

The Tribunal awarded retroactive attendant care benefits of $6,000 per month with interest accruing from the date of her hospital discharge in 2007.

The appellant insurance company appealed a summary judgment order that found the respondents (an adult son, his wife, and their daughter) were covered under the homeowner's policy of the named insured (their mother/mother-in-law) as relatives "living in the same household." The named insured owned a house that served as her primary residence until she entered a nursing home, after which the respondents used it as a cottage.

The Court of Appeal allowed the appeal, holding that "household" in insurance law refers to a type of community requiring intimacy, unity, and permanence, not merely physical residence.

The respondents maintained separate lives in the city and did not share a common life with the named insured meeting these requirements.

Appeal of summary judgment dismissal in a negligence action arising from a fatal motor vehicle accident.

The plaintiff's estate and family sued social hosts for damages, alleging the hosts owed a duty of care when the intoxicated guest drove home and subsequently drove his children and their babysitter, resulting in a fatal collision.

The motion judge dismissed the claims, finding no duty of care existed and alternatively that any duty ended when the guest arrived home safely.

The Court of Appeal allowed the appeal, finding genuine issues of fact regarding foreseeability and proximity that required trial, and rejecting the proposition that a social host's duty of care automatically expires upon an intoxicated guest's safe arrival home.

The Court dismissed the appeal and upheld decisions finding that complaints challenging Indian Act registration provisions were bare attacks on legislation, not discrimination in the provision of services under s. 5 of the Canadian Human Rights Act.

The Tribunal’s dismissal was upheld because legislation itself is not a service under that provision.

The applicant insurer sought a declaration that the respondent insurer had a duty to defend their mutual insured in an underlying environmental contamination action.

The underlying action alleged that fuel oil migrated from the insured's property to a neighbouring property.

The respondent denied coverage based on an environmental liability exclusion clause.

The court found that the respondent had a duty to defend because the pleadings left open the possibility that the initial escape of contaminants was 'sudden and accidental', which would trigger an exception to the exclusion clause.

The court ordered the insurers to share the defence costs equally based on equitable principles.

The plaintiff commenced an action arising from a 2006 motor vehicle accident but failed to serve the Statement of Claim within the required time.

The defendant argued the action was deemed dismissed under the revoked Rule 48.15(6) because no step was taken between 2010 and 2012.

The court held that an unsuccessful attempt to serve the claim in 2011 constituted a 'step' in the proceeding, preventing the deemed dismissal.

Alternatively, the court exercised its discretion to order that the rule did not apply.

Finding no prejudice to the defendant, the court granted the plaintiff's motion to extend the time for service and validated the late service.

The defendant dentist brought a motion for partial summary judgment in a dental malpractice action, arguing that claims relating to treatment before a specified date were statute‑barred under the Limitations Act, 2002.

The plaintiffs had originally commenced an action concerning later dental treatment but later amended the pleading to include earlier procedures and alleged failures to treat additional teeth.

The court held that the amendments asserted new causes of action rather than merely providing further particulars of the original claim.

Applying the discoverability principles under ss. 4 and 5 of the Limitations Act, the court found the plaintiffs knew or ought to have known of the potential negligence years earlier based on communications with subsequent dental specialists.

The claims relating to treatment before the specified date were therefore outside the limitation period.

In a costs endorsement following motions brought by co-defendants, the court held that a responding defendant was entitled to recover costs from the unsuccessful moving defendants because her participation was reasonable and directly engaged her vital interests.

The court declined to award costs against an insurer whose stay motion concerned only the contractual claim between it and the plaintiff.

Applying the principles that costs generally follow the event and must remain fair, reasonable, and proportionate, the court reduced the hours claimed and fixed costs on a partial indemnity basis.

Costs of $1,921.00 inclusive of HST were awarded against the moving co-defendants only.

On a summary judgment motion by a commercial alcohol vendor added years after a motor vehicle accident, the court considered both a limitations defence and the substantive negligence claim.

Applying the post-amendment Rule 20 framework, the court held the discoverability issue under the Limitations Act, 2002 could not fairly be resolved summarily because the record left genuine issues requiring trial concerning diligence and when the vendor's alleged involvement ought to have been known.

However, the court concluded there was no genuine issue requiring trial on breach of the standard of care.

On the evidentiary record, the plaintiff could not prove that the vendor knowingly sold to a minor, sold to someone who appeared underage, or had apparent reason to doubt the authenticity of the identification presented.

The applicant, who sustained a serious brain injury after being struck by a dump truck as a pedestrian, brought a motion for interim benefits pending arbitration.

The insurer agreed to pay ongoing attendant care, housing, and assistive devices.

The arbitrator declined to order interim benefits for past attendant care, finding that the applicant had not demonstrated a compelling case or urgency, as there was no evidence that anyone was waiting to be paid for past care.

The complainant, a nurse with clinical depression and fibromyalgia, filed a human rights complaint alleging the College of Nurses of Ontario discriminated against her by placing conditions on her certificates of registration.

The College brought a request to dismiss the complaint under section 45.1 of the Human Rights Code, arguing that the Health Professions Appeal and Review Board (HPARB) had already appropriately dealt with the substance of the complaint, and that the complaint was an abuse of process.

The Tribunal denied the request to dismiss, finding that HPARB failed to appropriately apply human rights principles, specifically the duty to accommodate to the point of undue hardship as set out in Meiorin, and failed to address the issue of adverse impact discrimination.

The Tribunal also rejected the College's arguments regarding adjudicative immunity, deliberative secrecy, collateral attack, and lack of jurisdiction, allowing the complaint to proceed on its merits.

The Chief of Police and respondent officers sought to vary a previous Tribunal order requiring the production of documents related to previous race-based complaints against the officers, proposing to redact complainant identities.

They also sought a stay of proceedings pending judicial review.

The Tribunal declined to vary the order, finding the proposed redaction and contact method inappropriate and unnecessary.

The Tribunal also denied the stay, finding no exceptional circumstances and that the balance of convenience did not favour a stay, as delaying production would prejudice the complainant and the Commission.