Christopher Joseph Bialkowski

The court dismissed two motions brought by the defendant, Y.Y.G.M. SA (“YYGM”): a motion for summary judgment on the basis of expired limitation periods, and a motion to dismiss or stay the action as an abuse of process due to alleged multiplicity of proceedings.

The court found genuine issues requiring trial regarding the applicable limitation periods for negligent misrepresentation and breach of contract claims, including the enforceability of Connecticut choice of law clauses and the factual circumstances of the oral and written agreements.

The court also rejected the abuse of process argument, finding no parallel proceedings against YYGM and no substantial prejudice.

Costs were awarded to the plaintiffs.

The respondent insurer requested a reconsideration of a decision finding the applicant sustained a catastrophic impairment and was entitled to attendant care benefits (ACBs) for services provided by his spouse.

The insurer argued the adjudicator erred by admitting opinion evidence on causation from a treating chiropractor who was not qualified as an expert, and by awarding ACBs for care provided by a family member.

The Associate Chair denied the reconsideration, holding that the chiropractor's evidence was admissible as a 'participant expert' under Westerhof, and that the spouse, a trained personal support worker and registered practical nurse, provided the attendant care services in the course of her profession.

The adjudicator's findings that the applicant promised to pay his spouse and required overnight supervision were reasonable and did not constitute significant errors of law or fact.

The applicant was injured in a motor vehicle accident and sought a determination of catastrophic impairment, along with attendant care benefits and various medical and rehabilitation benefits.

The Tribunal found that the applicant sustained a catastrophic impairment, preferring the evidence of the applicant's expert who assigned a 64% physical impairment rating over the respondent's expert.

The Tribunal awarded attendant care benefits of $3,704.91 per month from the date the assessment forms were submitted, but denied retroactive benefits.

The Tribunal also awarded case management services but denied other disputed treatment plans due to late submission or lack of evidence.

The applicant was injured in a motor vehicle accident when he was struck by a minivan while examining his truck on the side of the road.

He applied for statutory accident benefits, claiming he sustained a catastrophic impairment.

The insurer denied the claim, arguing that the applicant's impairments were unrateable due to inconsistent test results and symptom magnification.

The arbitrator preferred the evidence of the applicant's experts, finding that the use of the Gait Derangement Table was appropriate for rating his physical impairments and that his psychological impairments were marked despite invalid psychometric testing.

The arbitrator concluded that the applicant met the definition of catastrophic impairment under both the 55% whole person impairment threshold and the marked mental or behavioural disorder threshold.

An Ontario resident plaintiff injured in a motor vehicle accident in New York commenced an action in Ontario against the New York driver and his own Ontario insurer under uninsured and underinsured motorist coverage provisions.

The moving party sought dismissal or a stay for lack of jurisdiction.

Applying the real and substantial connection test articulated in Club Resorts Ltd. v. Van Breda, the court held that the plaintiff’s insurance contract was not a contract connected with the dispute and any potential liability under the policy was speculative and contingent.

The plaintiff could not rely on a secondary claim against his own insurer to establish jurisdiction over a foreign defendant.

Alternatively, even if jurisdiction existed, New York was the more appropriate forum.

The plaintiffs, Ontario residents, brought an action in Ontario for damages arising from a slip and fall at the defendant's hotel in Quebec.

The defendant moved to stay or dismiss the action, arguing lack of jurisdiction simpliciter and forum non conveniens.

The motion judge dismissed the motion.

On appeal, the Court of Appeal upheld the finding of jurisdiction simpliciter but found the motion judge erred in applying the forum non conveniens test by conflating it with the jurisdiction test and failing to consider all relevant factors.

Applying the factors from Muscutt v. Courcelles, the Court concluded that Quebec was clearly the more appropriate forum.

The appeal was allowed and the action stayed.