Chad Townsend

The applicant, TTC Insurance Company Limited (TTCICL), sought an order extending the time to commence their appeal of a Licence Appeal Tribunal (LAT) decision and an order joining this appeal with an existing application for judicial review.

Concurrently, the LAT and the Attorney General of Ontario sought leave to intervene in the appeal.

The court granted both motions, finding that the extension of time was justified given the recent Supreme Court decision in Yatar, the short delay, lack of prejudice to the respondent, and the overall interests of justice.

Intervenor status was granted to LAT and the Attorney General, with LAT's submissions restricted to procedural and jurisdictional issues, not the merits of its decision.

The Court of Appeal for Ontario heard an appeal from a jury verdict and costs endorsement in a personal injury action.

The appellants (defendants) challenged the admissibility of a SPECT scan, the exclusion of attendant care forms for credibility, and jury instructions on causation and damages.

They also appealed the trial judge's refusal to deduct non-earner benefits from the tort award and the costs award.

The Court dismissed the appeals regarding the SPECT scan, attendant care forms, and jury instructions.

However, it allowed the appeal in part, ruling that non-earner benefits are deductible from the past income loss award, clarifying the "silo" approach under the Insurance Act.

The appeal on costs was dismissed, and the respondent was awarded costs for the appeal.

The plaintiff brought a negligence action for injuries from an automobile accident, with liability admitted by the defendants.

The trial proceeded on damages only before a jury.

The court addressed a dispute between counsel regarding the wording of jury questions.

The defendants proposed questions that included a causation question despite admitted liability, and sought to particularize damages by apportioning them between the initial accident and subsequent accidents.

The court rejected the defendants' proposed questions, finding them to contain embedded assumptions, to be overly complicated, and to risk confusion.

The court affirmed that admitted liability includes causation, making a separate causation question unnecessary.

It also reiterated principles against apportionment between tortious and non-tortious causes for indivisible injuries, and the general rule against requiring juries to provide reasons or particularize findings, especially for damages assessment.

The plaintiff's simpler, general damages questions were adopted.

The applicant sought statutory accident benefits following a 2012 motor vehicle accident, claiming she sustained a catastrophic impairment due to mental and behavioural disorders.

The Licence Appeal Tribunal found that the applicant suffered a Marked impairment in both adaptation and concentration, persistence, and pace, satisfying Criterion 8 of the Schedule.

The Tribunal relied on the evidence of the applicant's treating professionals and experts, preferring them over the insurer's assessors who provided insufficient analysis.

The applicant was awarded attendant care benefits and a treatment plan for psychotherapy.

However, the Tribunal declined to order a special award under s. 10 of O. Reg. 664, finding the insurer's reliance on its medical assessments was not unreasonable.

The plaintiff sought substantial indemnity costs after successfully appealing a Master's order and denying leave to appeal a costs decision.

The court denied substantial indemnity, finding the plaintiff's offer to settle did not trigger Rule 49.10 consequences due to minimal compromise and timing.

The court awarded partial indemnity costs of $26,500, finding the plaintiff's counsel hours and rates reasonable given the complexity and volume of the appeal, and noting the defendants' costs outline was not credible.

The defendants appealed an Associate Judge's order regarding discovery issues and a subsequent costs decision.

The underlying motion dealt with time limits for further examinations for discovery, refusals, and undertakings in an action involving allegations of malicious prosecution and bad faith.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error in the Associate Judge's application of Rule 31.05.1 to extend discovery time limits or in ordering the defendants to reattend at their own expense due to improper refusals.

Leave to appeal the $100,000 partial indemnity costs award was also denied, as the defendants failed to demonstrate an error in principle or that the costs decision was plainly wrong.

The defendants brought a motion to exclude a SPECT scan from being shown to the jury by the plaintiff's expert neurologist, arguing it was novel science and unreliable for diagnosing a mild traumatic brain injury.

The court dismissed the motion, distinguishing this case from previous decisions where SPECT scans were used as the sole diagnostic tool by a nuclear medicine specialist.

The court permitted the clinical neurologist to refer to the SPECT scan because it was used as one of many diagnostic tools to confirm a clinical diagnosis, and the nuclear medicine specialist's opinions were redacted to prevent undue influence on the jury.

The plaintiff was struck by a TTC bus and awarded damages for past loss of income at trial.

The defendants brought a motion to deduct the non-earner benefits (NEBs) the plaintiff received under the Statutory Accident Benefits Schedule from the tort award for income loss, arguing that recent case law and legislative changes placed NEBs in the 'income loss silo'.

The court dismissed the motion, holding that it remained bound by the Court of Appeal's decision in Walker v. Ritchie, which established that NEBs compensate for loss of enjoyment of life and are not deductible from income loss awards.

The court found that obiter comments in a subsequent Court of Appeal decision did not overturn this established principle.

The plaintiff was struck by a transit bus while crossing the street, sustaining multiple fractures to her left ankle and knee.

Following a jury trial where the plaintiff was awarded $175,000 in general damages, the defendants brought a motion arguing the plaintiff did not meet the statutory threshold under s. 267.5(5) of the Insurance Act.

The court reviewed the medical evidence, preferring the plaintiff's orthopaedic expert who found objective evidence of post-traumatic osteoarthritis and permanent restricted range of motion.

The court concluded the plaintiff sustained a permanent and serious impairment of an important physical function that substantially interfered with her activities of daily living.

The defendants' motion was dismissed, entitling the plaintiff to the jury's award for non-pecuniary damages.

The applicant sought statutory accident benefits after witnessing a fatal bus accident, claiming it caused a catastrophic impairment (schizophrenia).

The respondent denied the benefits, arguing the applicant's condition was pre-existing or prodromal.

The Tribunal found that while the accident may have triggered an acute psychotic episode, the applicant was likely prodromal for years prior and failed to prove he sustained a Class 4 marked or Class 5 extreme impairment in the required spheres of function.

The Tribunal also dismissed claims for attendant care, rehabilitation support worker services, and other expenses, as the applicant's non-catastrophic policy limits were exhausted and the expenses were either not incurred or not reasonable and necessary.

The applicant was struck by a transit bus while crossing an intersection and sought a determination of catastrophic impairment.

The Tribunal found that the applicant did not meet the 55% whole person impairment threshold, preferring the respondent's medical experts who concluded her psychological challenges stemmed from pre-existing learning difficulties rather than the accident, and that she did not suffer from post-concussion syndrome.

However, the Tribunal ordered the respondent to pay $2,400 for a chronic pain assessment plan, finding the assessment was reasonable at the time it was proposed, and awarded interest because the respondent failed to provide proper medical reasons for its denial.

The plaintiff sought costs following a successful motion regarding 166 undertakings and refusals from the defendants' discoveries.

The plaintiff claimed $228,395.58 on a substantial indemnity basis, citing the defendants' conduct, including delayed disclosure and excessive refusals.

The court declined to award substantial indemnity costs, finding the conduct did not rise to the level of scandalous or reprehensible behavior.

Applying the principle of what is fair and reasonable for the unsuccessful party to pay, the court fixed partial indemnity costs at $100,000, payable jointly by the TTC Defendants.

The respondent requested an adjournment of the hearing due to a cyber attack that prevented access to its internal systems and files.

The applicant opposed the adjournment and brought a motion to exclude surveillance video and a report that were disclosed past the deadlines set in the case conference order.

The Tribunal granted the adjournment, finding it reasonable to allow the respondent time to prepare once systems were restored.

The Tribunal also granted the applicant's motion to exclude the surveillance evidence, finding it had little probative value, was not used by assessors, and its late disclosure caused prejudice that outweighed any relevance.

The plaintiff brought a motion to resolve numerous undertakings and refusals from the discoveries of the defendants, and to seek leave to extend the time limits for further discoveries.

The court ruled on dozens of specific refusals and undertakings, ordering the defendants to answer the majority of them.

Applying the factors under Rule 31.05.1(2), the court granted the plaintiff an additional 26 hours to discover the defendants, noting the complexity of the case, the financial imbalance between the parties, and the defendants' conduct during initial discoveries.

The court also ordered three of the defendants to reattend at their own expense pursuant to Rule 34.15(1)(a) due to the large volume of improper refusals.

The Court of Appeal considered when the limitation period for a claim against an unidentified motorist insurer (under s. 265 of the Insurance Act) begins to run, specifically under ss. 4 and 5 of the Limitations Act, 2002.

The motion judge and Divisional Court held that the limitation period does not begin until the insured makes an indemnification claim that the insurer fails to satisfy.

The Court of Appeal affirmed this, holding that a claim against the insurer is "discovered" under s. 5(1)(a)(iii) of the Limitations Act only when the insured knows or ought to know that the insurer's act or omission (failure to indemnify) caused their loss.

The appeal was dismissed, confirming that the plaintiff's claim against TTC Insurance was not statute-barred.

The plaintiff, a former route supervisor for the Toronto Transit Commission (TTC), sued for wrongful dismissal after being terminated for her alleged involvement in a group benefits fraud scheme involving a healthcare supplier.

The TTC counterclaimed for the amount of the fraudulent benefits paid.

The court found that the plaintiff knowingly participated in the fraud by submitting claims for unnecessary medical devices and splitting the reimbursement proceeds with the supplier.

The court held that the plaintiff's conduct constituted civil fraud and willful misconduct, justifying summary dismissal without notice or termination pay.

The plaintiff's action was dismissed, and the TTC's counterclaim for $15,815 was allowed.

The plaintiff brought a motion to extend the time for written submissions following the conclusion of evidence at trial.

The plaintiff's new counsel required trial transcripts, which would not be available until mid-December, as the trial had been split over a year due to a change of counsel.

The court granted the extension, finding it would be unfair to require the new counsel to prepare submissions without the transcripts.

The applicant insurer sought judicial review of a FSCO Director's Delegate's decision upholding an arbitrator's award of non-earner benefits to the respondent, who was struck by a bus.

The insurer argued the arbitrator failed to apply the 'continuously prevents' aspect of the test for non-earner benefits.

The Divisional Court dismissed the application, finding that the Director's Delegate reasonably concluded the arbitrator had addressed the test in light of the evidence and the specific arguments raised by the parties at the arbitration.

The applicant was struck by a streetcar as a pedestrian and sought a catastrophic impairment designation under the Statutory Accident Benefits Schedule due to psychological, emotional, and behavioural impairments.

The respondent denied the designation.

The Tribunal found that the applicant sustained a traumatic brain injury resulting in a Class 4 (Marked) impairment in the Adaptation domain under Chapter 14 of the AMA Guides.

The Tribunal preferred the evidence of the applicant's experts, noting the applicant's inability to cope with stressors, recurring need to escape uncontrolled situations, and suicidal ideations.

The Tribunal concluded the applicant sustained a catastrophic impairment and is entitled to extended medical and rehabilitative treatment limits.

The appellant insurer appealed an arbitrator's decision awarding the respondent pedestrian non-earner benefits, medical expenses, cost of examinations, and arbitration expenses following a motor vehicle accident.

The Director's Delegate dismissed the appeal, finding that the insurer's grounds of appeal essentially disputed the arbitrator's findings of fact and weighing of evidence, rather than raising questions of law.

The Delegate affirmed that the arbitrator properly compared the respondent's pre- and post-accident life, correctly applied the burden of proof, and was entitled to rely on the testimony of the respondent and her daughter.

The appeal was dismissed with $10,000 in costs awarded to the respondent.