Chad Townsend

The applicant was struck by a bus in 2012, sustaining multiple fractures and subsequent psychological impairments.

She applied for a determination of catastrophic impairment under two criteria of the Statutory Accident Benefits Schedule.

The Tribunal found that the applicant did not meet the 55% whole person impairment threshold under s. 3(2)(e), as her combined physical and psychological impairments rated between 42% and 46%.

However, the Tribunal concluded that the applicant was catastrophically impaired under s. 3(2)(f), finding she suffered a marked impairment in the functional areas of social functioning and adaptation due to her accident-related mental and behavioural disorders.

A claim for the cost of a psychiatric paper review was denied.

Following the dismissal of the plaintiff's personal injury action, the successful defendant sought substantial indemnity costs based on the plaintiff's fabricated claims and an unaccepted offer to settle.

The court held that Rule 49.10 does not permit substantial indemnity costs for a successful defendant, and the plaintiff's conduct did not rise to the level of reprehensible conduct required to justify elevated costs.

The court awarded the defendant partial indemnity costs in the amount of $193,043.98.

Following the dismissal of TTC Insurance Company's appeal regarding the authority of the executrix to instruct counsel, the Estate of Francis Agius sought its legal expenses for the appeal.

The Director's Delegate found the Estate was entitled to its expenses based on its success.

The Delegate declined to fix arbitration expenses, as the arbitration was ongoing, but awarded the Estate $2,500 for the appeal expenses.

The insurer appealed an arbitrator's decision refusing to dismiss the arbitration.

The insurer argued the arbitration was a nullity because the insured person had died before the application for mediation was filed, and the executrix had not been formally appointed by a court as a litigation administrator.

The Director's Delegate dismissed the appeal, confirming that an executrix derives her authority from the will, not from the probate process, and therefore had the authority to instruct counsel to commence proceedings immediately upon the insured's death.

The fact that counsel was unaware of the death when filing the application did not diminish the executrix's authority.

The plaintiff brought two negligence actions: one against the Toronto Transit Commission (TTC) and its driver for a bus door incident, and another against the City of Toronto for a slip and fall on an icy sidewalk.

The court dismissed both actions, finding no negligence on the part of the defendants and significant credibility issues with the plaintiff regarding his injuries, pain, and efforts to return to work.

The court also found that the plaintiff's alleged psychological injuries were not causally linked to the TTC accident or were too remote.

The applicant was injured in a motor vehicle accident and sought accident benefits.

Following the applicant's death, his counsel submitted an Application for Mediation signed only by counsel, unaware of the applicant's passing.

The insurer argued the application was invalid as it lacked the claimant's signature and was not properly authorized.

The arbitrator held that the absence of a claimant signature was a mere defect in form that did not invalidate the proceeding.

Furthermore, the applicant's wife, acting continuously under a Power of Attorney and subsequently as executrix, had the authority to and did authorize the application.

The preliminary issue was resolved in favour of the applicant.

The insurer brought a motion to dismiss the applicant's arbitration proceeding for accident benefits, arguing the applicant repeatedly failed to comply with his duty to provide information under section 33(1) of the Statutory Accident Benefits Schedule.

The self-represented applicant had attended hearings and provided some documents, though his evidence was incomplete.

The arbitrator distinguished cases where applicants completely failed to attend proceedings, finding that while the applicant's non-compliance was worthy of criticism, it did not warrant denying him the right to present evidence at a hearing.

The motion to dismiss was denied and the matter was referred back for a pre-hearing teleconference.

In a pedestrian–streetcar collision action, a transit authority brought a summary judgment motion seeking dismissal of the plaintiff’s claim against its municipal co‑defendant.

The moving party argued that it would assume responsibility for maintenance of trees on a median that allegedly obstructed the streetcar operator’s view and relied on statutory provisions of the City of Toronto Act.

The court held that the summary judgment rules could permit a defendant to seek dismissal of a claim against a co‑defendant, but the evidentiary record revealed genuine issues requiring a trial regarding responsibility for the median and trees.

Ownership of the land remained with the municipality and the statutory provision did not bar claims where the property was not the transit authority’s.

The motion was dismissed and costs were awarded to the plaintiff.

Following a trial where the Toronto Transit Commission (TTC) was found not liable for a streetcar accident involving a four-year-old child, the TTC sought its costs of the proceeding.

The court declined to award costs to the TTC, noting that the child could not be at fault and that the TTC, as a public service, should bear the costs of defending such claims where the injured party is not at fault.

The court also declined to award costs for the TTC's counterclaim against the child's parents, resulting in no order as to costs for any party.

A motion was brought to strike a third party claim against the Toronto Transit Commission’s insurer arising from a pedestrian injury caused by an uninsured vehicle while the pedestrian attempted to board a stopped streetcar.

The moving party argued there was no privity of contract with the injured person or the defendant and that declaratory relief was inappropriate.

The court held that potential liability could arise under the statutory accident benefits priority scheme in s. 268(2) of the Insurance Act if the streetcar was "involved in the incident." Accepting the pleaded facts as true, the court found the allegations could support such involvement and therefore disclosed a reasonable cause of action.

The third party claim was permitted to proceed and declaratory relief within the action was found appropriate to avoid multiplicity of proceedings.

Following a jury verdict finding that a motor vehicle accident did not cause injury to the plaintiff, and dismissal of the action on the statutory threshold for non‑pecuniary damages, the court determined the appropriate costs award.

The defendants sought substantial indemnity costs based on alleged misconduct and a withdrawn Rule 49 offer to settle.

The court held that substantial indemnity costs were not justified because the plaintiffs’ conduct was not reprehensible and the defendants’ offer had been withdrawn prior to trial, removing automatic Rule 49 consequences.

However, the defendants were the successful parties and were entitled to partial indemnity costs throughout, with the court fixing a lump sum award after considering proportionality, trial complexity, and counsel conduct that lengthened the proceeding.

The plaintiff brought a motion under Rule 48.11(b) of the Rules of Civil Procedure to restore an action to the trial list after it had been struck for failure to submit a trial certification form.

The court applied the test governing restoration following administrative dismissal for delay, including whether the delay was intentional, whether it was inordinate and inexcusable, and whether the defendants suffered prejudice.

Although the delay of approximately 31 months was found to be inordinate and not reasonably explained, the plaintiff successfully rebutted the presumption of prejudice and the defendants failed to establish actual prejudice affecting the fairness of a trial.

The court held that the absence of certain radiological studies did not demonstrate a substantial risk that a fair trial was no longer possible.

The action was therefore restored to the trial list, but no costs were awarded.

The plaintiff brought a motion under Rule 48.11(b) of the Rules of Civil Procedure for leave to restore a personal injury action to the trial list after it had been struck for failing to obtain pre‑trial and trial dates.

The court applied the four‑part test governing delay, including whether the delay was intentional or contumelious, whether it was inordinate and inexcusable, whether the presumption of prejudice was rebutted, and whether actual prejudice was demonstrated.

The court found a delay of two years and eight months in seeking pre‑trial and trial dates and concluded the delay was deliberate or, at minimum, inordinate and unexplained.

The plaintiff failed to provide evidence rebutting the presumption of prejudice arising from the delay.

The motion to restore the action to the trial list was therefore refused, although a related amendment correcting a misnomer was permitted.

The plaintiff moved to amend her statement of claim to add a claim for unidentified motorist coverage against the defendant insurer.

However, the plaintiff had previously brought a motion for the same relief in 2005 and delivered a notice of abandonment.

The court held that an abandoned motion cannot be revived absent inadvertence, mistake, misapprehension, or compelling special circumstances.

Finding no such circumstances, the court dismissed the motion to withdraw the notice of abandonment, thereby dismissing the motion to amend the statement of claim.

The applicant's representative brought a motion to be removed from the record and to seal the motion record, arguing that the record contained information protected by solicitor-client privilege.

The representative had not served the motion record on the insurer.

The arbitrator ordered the representative to serve the motion record on the insurer, finding nothing within it that could not reasonably be disclosed.

The motion to be removed from the record and to seal the record was adjourned to be heard orally by the preliminary issue hearing arbitrator.

The insurer brought a motion for an order compelling the applicant to attend Insurer's Examinations with a psychiatrist, oncologist, and physiatrist under section 42 of the Statutory Accident Benefits Schedule.

The arbitrator dismissed the motion, finding no jurisdiction to order an insured to attend an examination.

Furthermore, the arbitrator held that the insurer's notice failed to provide sufficient particulars about the nature of the proposed examinations, depriving the applicant of the ability to give informed consent.

The insurer brought a preliminary motion in an arbitration regarding catastrophic impairment benefits.

The insurer sought to restrict the scope of the arbitration to the physical impairments considered by the Designated Assessment Centre (DAC), or alternatively, to refer the matter back to the DAC or order further section 42 insurer examinations to address newly raised psychological issues.

The arbitrator dismissed the motion, holding that the arbitration is a hearing de novo that must consider all elements of catastrophic impairment.

The arbitrator declined to refer the matter back to the DAC, finding it functus and improperly constituted, and refused to order further section 42 examinations due to the insurer's delay and lack of evidentiary foundation.