Brian Sherman

The appellants appealed a judgment of the Superior Court of Justice.

On consent of the parties, the Court of Appeal varied the judgment to remove the Banyan defendants, leaving the judgment solely against the remaining corporate defendant.

Costs of the appeal were awarded to the respondent in the amount of $2,000.

The appellant appealed an order striking his pleadings in a family law proceeding for persistent failure to comply with court orders requiring financial disclosure.

The Court of Appeal dismissed the appeal, emphasizing that financial disclosure is the most basic obligation in family law and is automatic.

The Court held that the appellant's conduct in ignoring three court orders put him in the exceptional category of cases where the motion judge's discretion to strike pleadings was reasonably exercised.

The plaintiff sold shares of a real estate brokerage to the defendant purchaser under a share purchase agreement and promissory note for $490,000.

After making several instalment payments, the purchaser stopped paying and alleged numerous misrepresentations and breaches of warranty relating to financial statements, agent rosters, liabilities, and business operations, seeking damages and repayment through a counterclaim.

The court found that the purchaser was a sophisticated businessperson who conducted limited due diligence and knowingly proceeded without contractual protections or price adjustments.

Alleged misrepresentations regarding financial statements, agent numbers, liabilities, and business practices were unsupported, and the purchaser did not rely on them when entering the agreement.

Although the vendor breached the agreement by failing to provide audited financial statements, the breach caused no damage and was effectively waived.

The vendor was therefore entitled to recover the outstanding balance under the promissory note and the counterclaim was dismissed.

The plaintiff objected to the admissibility of a proposed accounting expert retained by the defendants in a commercial dispute involving alleged irregularities in corporate financial records and the valuation of shares.

The objection was based on allegations that the expert lacked independence due to a professional relationship with a trustee in bankruptcy connected to the underlying corporation and that the expert lacked sufficient expertise in industry standards.

The court considered the effect of Rules 4.1 and 53.03 of the Rules of Civil Procedure and whether those provisions impose a higher duty of independence than at common law.

The court held that alleged institutional bias arising from professional connections generally affects the weight of expert evidence rather than its admissibility.

Finding the expert met the Mohan admissibility criteria and possessed sufficient expertise, the court permitted the expert to testify.

The applicant applied for statutory accident benefits following a motor vehicle accident.

At a pre-hearing discussion, the applicant's representative sought to be removed from the record due to a breakdown in the relationship, as the applicant failed to respond to numerous attempts at contact.

The arbitrator granted the representative's motion to withdraw without conditions.

Additionally, as the applicant appeared to have abandoned the arbitration, the arbitrator gave notice of the intention to dismiss the arbitration without a hearing on the grounds that the proceeding is frivolous, vexatious, or commenced in bad faith.

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

The Insurer terminated benefits, initially alleging the Applicant was charged with a criminal offence, and later alleging he was not a passenger in the vehicle.

The Insurer also scheduled multiple insurer's examinations which the Applicant did not attend.

On preliminary issues, the Arbitrator found credible evidence that the Applicant was a passenger in the vehicle.

The Arbitrator also held that the Applicant was not precluded from proceeding to arbitration, as the insurer's examinations were not reasonably necessary given the lack of corresponding benefit claims and the Insurer's unjustified adversarial conduct.

The applicant was injured in a motor vehicle accident and sought payment for medical benefits and assessment costs from his insurer, related to treatments at a clinic.

The insurer disputed the amounts billed, arguing they were excessive and did not reflect the actual treatments provided.

The arbitrator found the applicant's evidence unreliable and noted the clinic's failure to produce key documents.

The arbitrator largely accepted the insurer's position on the appropriate fees for the services rendered, awarding a reduced amount for massage therapy, adhesive pads, and one reassessment, while denying the costs of an in-home assessment and other reports.

Both parties' claims for arbitration expenses were dismissed.

The applicant was injured in a rear-end motor vehicle accident and sought payment for 99 active rehabilitation treatment sessions and four treatment plans.

The insurer denied the treatment plans, arguing the duration and cost were excessive.

The arbitrator found that the applicant required supervised active rehabilitation to return to his pre-accident heavy labour job and that the duration of the program was reasonable.

However, the arbitrator reduced the hourly rate from the claimed $150 to $60 per session, noting the treatment was provided in a group setting rather than one-on-one.

The arbitrator also awarded interest on overdue payments and a $1,000 special award, finding the insurer unreasonably withheld payments by unilaterally reducing the rate for approved treatment without a valid basis.

Following an arbitration where the insured was unsuccessful in claiming a medical benefit, the insurer sought its expenses.

The arbitrator considered the criteria under the Dispute Resolution Practice Code, including the insurer's offer to settle and the insured's lack of success and credibility issues.

Balancing these factors with the need to maintain accessibility to the dispute resolution system for individuals of modest means, the arbitrator awarded the insurer one-third of its assessed expenses, totaling $3,179.55 plus GST.

Allstate appealed an arbitration order awarding the respondent $3,655.41 for rehabilitation expenses at a clinic.

Allstate argued the arbitrator erred in law by classifying the kinesiology treatment as 'one-to-one' and allowing an $80 hourly rate, and by finding the clinic's assessment fees were not recoverable from OHIP.

The Director's Delegate dismissed the appeal, finding no error of law in the arbitrator's conclusion that the $80 hourly fee was a reasonable and necessary expense given the respondent's age and complex medical history.

The Delegate also upheld the finding that the specific assessment fees were payable by the insurer, as the arbitrator was entitled to accept evidence that the clinic could not bill OHIP for them.

The applicant was struck by a vehicle and sustained a fractured tibia.

She sought statutory accident benefits for chiropractic and active rehabilitation therapy.

The insurer disputed the reasonableness of the treatment and the fees charged by the clinics.

The arbitrator found that the treatment was reasonable and necessary to assist in the applicant's recovery, but determined that the frequency and duration of the treatments, as well as the fees charged by the clinics, were excessive.

The arbitrator reduced the compensable sessions and the hourly rates, awarding $1,080.50 for chiropractic expenses and $635 for rehabilitation expenses, plus interest.

The applicant claimed medical and rehabilitation benefits following a motor vehicle accident.

The insurer denied the treatment plans without scheduling a medical and rehabilitation designated assessment centre (DAC) as required by section 38 of the Statutory Accident Benefits Schedule.

The applicant brought a preliminary motion arguing the insurer was deemed to have admitted entitlement due to this procedural breach.

The arbitrator found the insurer failed to comply with the denial provisions, but held that based on existing case law, the breach raised an evidentiary rather than a jurisdictional question.

The arbitrator declined to decide the consequences of the breach on a preliminary basis, ordering the matter to proceed to a full hearing.

The applicant was injured in a motor vehicle accident and sought payment for exercise therapy under the Statutory Accident Benefits Schedule.

The insurer denied the claim, arguing the treatment was not reasonable and necessary.

The arbitrator found that the applicant had pre-existing shoulder issues and lacked credibility regarding his medical history.

Relying on expert medical assessments, the arbitrator concluded the applicant had regained almost full mobility prior to the disputed therapy and did not have an impairment requiring the treatment.

The claims for medical benefits and a special award were dismissed.

The Insurer requested the dismissal of the arbitration proceeding because the Applicant failed to meet undertakings.

The Applicant, having retained a new representative just days before the hearing, requested an adjournment.

The Arbitrator declined to dismiss the proceeding, finding it too drastic a remedy, but granted the adjournment peremptory to the Applicant.

The Arbitrator awarded the Insurer $1,000 in costs thrown away due to the late adjournment request and the Applicant's failure to comply with productions, and imposed strict timelines for future productions and expert reports.

The applicant sought to re-open the arbitration hearing to admit new evidence regarding whether medical assessments could be billed to OHIP.

The arbitrator treated the request as a motion.

Applying the Palmer test for the admission of new evidence, the arbitrator found that the applicant failed to meet the due diligence requirement, as the representative conceded the evidence could have been obtained prior to the hearing with greater diligence.

The motion to re-open the hearing was dismissed.