Christopher A. Caston

The plaintiff appealed a trial judge's decision finding she did not meet the threshold requirements under s. 267.5 of the Insurance Act.

The plaintiff argued the trial judge committed palpable and overriding errors by failing to explain his preference for conflicting medical evidence and by omitting reference to the evidence of her chiropractor.

The Divisional Court dismissed the appeal, holding that the standard of review is palpable and overriding error, and finding no such error in the trial judge's careful review of the evidence.

Following a jury trial where the plaintiff was awarded $62,500 in general damages for injuries sustained in a rear-end motor vehicle accident, the defendants brought a threshold motion under s. 267.5(5) of the Insurance Act.

The court reviewed the medical evidence and surveillance footage, noting inconsistencies in the plaintiff's testimony and evidence of her ability to perform daily activities.

The court concluded that the plaintiff failed to prove her injuries substantially interfered with her usual activities of daily living.

The defendants' motion was granted, barring the plaintiff's claim for non-pecuniary loss.

During a jury trial for a personal injury claim arising from a motor vehicle accident, the plaintiff brought a motion to exclude portions of the defence orthopedic expert's proposed testimony.

The plaintiff objected to the expert testifying about symptom exaggeration and the theory of chronic pain syndrome (central sensitization).

Applying the Mohan and Abbey frameworks, the court allowed the expert to testify regarding symptom exaggeration, finding it within his clinical expertise.

However, the court excluded his opinions on central sensitization, ruling he lacked the necessary qualifications and his evidence failed the gatekeeper cost-benefit analysis.

The expert was also restricted from testifying about undisclosed research and cautioned to present his evidence professionally.

During a personal injury jury trial arising from a motor vehicle accident, the defendants sought to introduce surveillance videos of the plaintiff from 2013 and 2015 as substantive evidence.

The plaintiff objected, arguing the videos lacked probative value because she had already testified she could perform the recorded activities on a 'good day,' and that their admission would be prejudicial.

The court rejected the plaintiff's arguments, finding the videos relevant to assessing the degree of her impairment and concluding that their probative value outweighed any prejudicial effect.

The 2013 and 2015 surveillance videos were ruled admissible.

The Applicant sought statutory accident benefits, including a determination of catastrophic impairment, income replacement benefits, housekeeping, and attendant care, following a 2003 motor vehicle accident.

The Insurer relied on extensive surveillance video taken over four years showing the Applicant driving on highways, running errands, and performing complex tasks, which starkly contradicted the Applicant's presentation to medical assessors and his family's testimony that he was severely cognitively and physically impaired.

The Arbitrator found the Applicant's medical evidence and family testimony unreliable due to the glaring inconsistencies with the objective surveillance evidence.

The Arbitrator preferred the Insurer's medical experts, concluded the Applicant was not catastrophically impaired, and dismissed all claims for benefits and a special award.

The applicant, who was injured in a motor vehicle accident, sought an adjournment of the arbitration hearing to allow his psychiatrist to respond to the insurer's catastrophic impairment assessments.

The insurer opposed the adjournment, arguing the applicant had ample time to respond.

The arbitrator found that the insurer had failed to properly serve the catastrophic reports on the applicant's counsel or litigation guardian, causing unavoidable delay.

The adjournment was granted with conditions, and the insurer was ordered to pay $750 in expenses due to its role in delaying the process.

The appellant insurer sought leave to appeal a preliminary order of an arbitrator that directed it to proceed with a determination of catastrophic impairment based on a paper review by a previously retained psychiatrist, rather than requiring the respondent to attend four new in-person examinations.

The respondent had refused to attend the new examinations based on her treating psychologist's opinion that they posed a significant risk of harm and increased suicide risk.

The Director's Delegate refused to admit fresh evidence, denied leave to appeal the preliminary order, and denied a stay of the arbitrator's order.

The Delegate found that the insurer's right to choose its assessors under section 42 of the Schedule is qualified by reasonableness, and that the appeal did not raise novel issues or demonstrate sufficient prejudice to warrant an exception to the general rule against appealing preliminary orders.

Costs of $5,539.68 were awarded to the respondent.

The appellant appealed an arbitrator's decision awarding him $6,628.75 in legal expenses following a settlement of his statutory accident benefits claim.

The appellant argued the arbitrator erred by not bifurcating the expense hearing to separately determine expenses incurred preparing for the hearing itself, and alleged a reasonable apprehension of bias.

The Director's Delegate dismissed the appeal, finding no evidence that the parties jointly requested a bifurcated expense hearing as required by the Dispute Resolution Practice Code, and no evidence that the arbitrator had closed her mind or prejudged the issues.

The applicant sought expenses following an arbitration decision regarding statutory accident benefits.

The arbitrator found that the applicant was generally successful, having obtained an award for housekeeping benefits and successfully defeated the insurer's position on non-earner benefits.

The insurer's argument that the applicant's late withdrawal of the attendant care claim should disentitle him to expenses was rejected, as the insurer failed to demonstrate significant costs thrown away.

The applicant was awarded expenses in the amount of $18,832.68.

The appellant appealed an arbitration decision dismissing his claims for statutory accident benefits.

On appeal, the appellant sought to expand the grounds of appeal beyond the initial Notice of Appeal and to introduce fresh evidence via an affidavit from his counsel regarding an alleged undertaking.

The Director's Delegate allowed the expanded grounds of appeal, finding the prejudice to the respondent was merely tactical and could be cured by granting time to respond.

However, the request to introduce fresh evidence was denied, as the evidence could have been adduced at arbitration with due diligence and would not have reasonably affected the outcome given the lack of other supporting evidence for the housekeeping claims.

The applicant, who developed a major depressive disorder with psychotic features following a motor vehicle accident, applied for a catastrophic impairment designation.

The insurer scheduled further in-person psychiatric and medical assessments.

The applicant refused to attend, relying on her treating psychologist's opinion that further assessments posed a serious risk of triggering suicidal ideation.

The arbitrator held that the insurer's discretion to order section 42 examinations is not unfettered and must be exercised in a manner that does not harm the insured.

Given the uncontroverted evidence of suicide risk, the arbitrator ordered the insurer to make its catastrophic impairment determination based on a paper review and supplementary questions to previous assessors, rather than requiring further in-person examinations.

The appellant sought to appeal an arbitrator's decision regarding legal expenses following a settlement of his statutory accident benefits claim.

The respondent argued the appeal was filed out of time.

The Director's Delegate found reasonable grounds to extend the time for the appeal, noting the appellant's early intention to pursue the issue.

The Delegate also ruled on the admissibility of fresh evidence, refusing an affidavit but allowing certain correspondence and exhibits to form part of the appeal record.

The applicant sought statutory accident benefits following a motor vehicle accident, including medical benefits, housekeeping expenses, and a special award.

Despite the applicant's failure to attend the hearing, his counsel proceeded.

The arbitrator dismissed the claims for medical benefits, preferring the evidence of the insurer's medical experts who conducted physical examinations over the applicant's expert who only performed a paper review.

The arbitrator also found that the treatment facility had overbilled for the duration of sessions.

The claims for housekeeping and a special award were dismissed due to lack of evidence and the finding that no benefits were unreasonably withheld.

The insurer was awarded its arbitration expenses.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits, which were denied by the insurer.

The parties resolved all outstanding issues prior to the arbitration hearing, leaving only the issue of expenses.

The applicant submitted a Bill of Costs for $8,544.13.

The arbitrator reviewed the claimed fees and disbursements, noting the lack of supporting dockets and the uncomplicated nature of the case.

The arbitrator reduced the claimed fees but allowed the disbursements in full, awarding the applicant a total of $6,628.75 in expenses.

The insurer brought a motion to remove the applicant's representative, Ms. Lubman, due to a conflict of interest.

Ms. Lubman owned the clinic that provided the psychological evaluation for which the applicant sought payment.

The arbitrator found that the applicant did not have a sufficient understanding of the consequences of the conflict of interest and had not made an informed decision to waive it.

The motion was granted and Ms. Lubman was removed as the applicant's representative.

In a pre-hearing discussion regarding a claim for statutory accident benefits, the applicant sought production of the insurer's adjusting notes up to the date she filed her Application for Arbitration.

The insurer objected, claiming privilege as litigation was contemplated.

The arbitrator declined to expand the scope of production to the arbitration filing date, noting that doing so would undermine the mediation process and prompt insurers to hire counsel earlier simply to protect their notes.

Production was ordered up to the date the Application for Mediation was filed, excluding notes pertaining to the setting of reserves.

Following the dismissal of the applicant's claims for income replacement benefits and a special award, both parties sought their arbitration expenses under subsection 282(11) of the Insurance Act.

The arbitrator applied the criteria under Regulation 664 and the Dispute Resolution Practice Code, finding that the insurer was entirely successful, had made a formal offer to settle that was more generous than the outcome, and that the applicant's conduct caused unreasonable delay.

The applicant's claim for expenses was dismissed, and the applicant was ordered to pay $1,000 towards the insurer's legal fees and disbursements.

The applicant sought expenses following a successful arbitration claim for income replacement benefits against the insurer.

The arbitrator found the applicant was entitled to his reasonable arbitration expenses due to his success on the major issue and the professional conduct of the hearing.

After reviewing the claimed hourly rates, allowable hours, and disbursements, the arbitrator awarded the applicant $8,954.64 inclusive of GST.