Courtney Madison

The applicant sought entitlement to several treatment plans for injuries allegedly sustained in a motor vehicle accident, as well as an award and interest.

The respondent denied the plans based on Insurer's Examinations (IEs) which concluded the injuries were either minor, resolved, or attributable to a prior accident.

The Tribunal found that the applicant failed to meet her burden of proving the treatment plans were reasonable and necessary, often relying on brief clinical notes that did not address causation or adequately contradict the detailed IE reports.

The application was dismissed in its entirety.

The applicant was injured in a motor vehicle accident and sought various medical and rehabilitation benefits, an attendant care assessment, and a chronic pain assessment under the Statutory Accident Benefits Schedule.

The insurer denied the benefits.

The Tribunal found the applicant was entitled to treatment plans for physiotherapy, a chronic pain assessment, and ergonomic equipment (an L-shaped desk and ergonomic chair) as they were reasonable and necessary to address ongoing accident-related pain.

The Tribunal denied the treatment plans for an attendant care assessment and social work services.

The Tribunal also found the insurer failed to properly deny one treatment plan within the required 10 business days under s. 38 of the Schedule.

The applicant's request for an award under s. 10 of O. Reg. 664 was denied, as the insurer's conduct was not unreasonable.

Interest was awarded on the overdue benefits.

The applicant sought payment for various treatment plans for psychological therapy, physiotherapy, occupational therapy, and assessments following a motor vehicle accident.

The Licence Appeal Tribunal found that the psychological treatment plans were funded at the appropriate rate for a psychotherapist, rather than a psychologist.

The Tribunal also found that the remaining physical therapy and assessment plans were not reasonable and necessary, as the applicant had reached maximum medical recovery and further assessments would be duplicative.

The claims for a special award and interest were dismissed.

The defendant moved for a stay of proceedings or an indefinite adjournment of the trial pending a Workplace Safety and Insurance Appeals Tribunal (WSIAT) Right to Sue Application.

The defendant argued that the plaintiff's claim might be barred under the Workplace Safety and Insurance Act.

The court dismissed the motion, finding that the defendant had delayed raising the defence for years, had previously represented that the WSIAT application would not delay the trial, and that an adjournment would cause significant prejudice to the plaintiff who was ready for trial.

Plaintiff's counsel, Naimark Law Firm, brought a motion to be removed from the record and for a charging order in two related actions.

The plaintiff, Syed Hussaini, resisted the motion and sought an adjournment to file affidavit evidence.

The court found that the solicitor-client relationship had broken down and that the plaintiff had ample opportunity to file responding materials, noting a history of delay tactics.

The motion for removal and a charging order was granted, and costs were awarded to Naimark Law Firm.

The appellant, Patricia Ann Smith, appealed the dismissal of her medical malpractice action against Dr. Brenda Kane.

The trial judge found no breach of the standard of care by Dr. Kane in her treatment of the appellant's foot complaints.

The appeal raised three main issues: misapprehension of expert evidence, failure to apply the "ordinary knowledge and common sense" exception to expert evidence, and error in failing to find a breach of the duty to diagnose.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of expert evidence, rejecting the application of the "common sense" exception as it was not raised at trial and the issues were complex, and clarifying that there was no freestanding duty to diagnose in this context given the specific concessions and causation findings.

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

The respondent initially denied several treatment plans but reversed its decision prior to the hearing.

The sole issue at the hearing was whether the applicant was entitled to an award under Ontario Regulation 664 for unreasonable delay or withholding of payments.

The Tribunal found that the respondent's reliance on medical assessments and subsequent reversal of its position did not constitute unreasonable behaviour.

The application for an award was dismissed.

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

After withdrawing her initial application to the Licence Appeal Tribunal, she refiled a modified application 11 days later.

The respondent insurer raised a preliminary issue, arguing the second application was an abuse of process and seeking costs.

The Tribunal found that withdrawing and refiling an application, especially when the new application removed certain claims and was prompted by new medical evidence, did not constitute an abuse of process.

The respondent's request to dismiss the application and its claim for costs were denied.

This endorsement addresses the entitlement to costs following a medical malpractice action where the plaintiff's claim was dismissed.

The parties had agreed on a quantum of $300,000 for costs.

The court found that the defendant, as the successful party, was ordinarily entitled to costs.

The plaintiff's arguments for denying costs, including the defendant's failure to make a settlement offer, alleged divided success on causation and contributory negligence, and the plaintiff's impecuniosity and tragic circumstances, were rejected.

The court emphasized that the defendant's explicit undertaking not to demand costs alleviated concerns regarding hardship, allowing the ordinary rule that costs follow the event to apply.

The court reserved the right to revisit the disposition if the defendant were to seek enforcement of the costs order.

The plaintiff, a diabetic patient, brought a medical malpractice action against her family physician after requiring a below-knee amputation due to an undiagnosed neuropathic fracture (Charcot foot).

The plaintiff alleged the physician breached the standard of care by failing to order timely imaging or refer her to an orthopedic specialist.

The court found that the physician's treatment did not fall below the standard of care, noting that the condition was rare and not detected by other specialists who examined the plaintiff during the same period.

Although the court concluded that timely imaging would likely have saved the leg, the action was dismissed because the standard of care was not breached.

The applicant sought statutory accident benefits following a motor vehicle accident, including income replacement benefits (IRBs) and two treatment plans.

The respondent insurer denied the benefits, arguing the applicant did not meet the test for IRBs and failed to attend scheduled independent medical examinations (IEs).

The Tribunal found the applicant's credibility lacking due to her failure to produce documents explaining her non-attendance at the IEs and drew an adverse inference.

However, relying on the applicant's psychological expert, the Tribunal concluded she suffered severe psychological impairments rendering her substantially unable to perform the essential tasks of her pre-accident employment as a personal support worker.

The Tribunal awarded ongoing IRBs, excluding the period of non-attendance at the IEs, but denied the disputed treatment plans as duplicative or unproven.

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

The applicant failed to attend the arbitration hearing.

The arbitrator proceeded in the applicant's absence pursuant to Rule 37.7 of the Dispute Resolution Practice Code.

As the applicant presented no evidence, she failed to meet her burden of proof.

The arbitrator dismissed all of the applicant's claims for benefits and interest, and ordered the applicant to pay the insurer's arbitration expenses fixed at $3,500.

The plaintiff, catastrophically injured in a motor vehicle accident, sought statutory accident benefits in the form of retrospective attendant care benefits for a period between 2001 and 2006.

The motion asked the court to determine the date from which interest should accrue if those benefits were ultimately found to be payable.

The insurer argued interest could only begin after it received a Form 1 assessment of attendant care needs, relying on appellate authority interpreting the Statutory Accident Benefits Schedule.

The court held that under the applicable 2001 version of the Schedule, interest begins when the insurer had sufficient information to assess entitlement to the benefit, even absent a formal Form 1.

On the facts, the insurer had early knowledge of the claimant’s catastrophic impairments and attendant care needs.

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

After failing to attend pre-hearings, failing to make documentary production, and having his representative removed from the record, the applicant failed to attend the arbitration hearing.

The arbitrator found that the applicant had abandoned his application and dismissed the claims in their entirety.

The applicant was ordered to pay the respondent's expenses of the arbitration, fixed at $1,500.00, due to the considerable inconvenience and needless expense caused by his failure to participate.

On a motion arising from a long-delayed civil action alleging employee misappropriation and a counterclaim alleging wrongful dismissal and defamation, the court dismissed the plaintiff corporation's main action and struck the reply and defence to counterclaim for delay.

Applying the Rule 24 delay-dismissal framework, the court found inexcusable delay and non-compensable prejudice because critical banking and patient records had likely been destroyed under document retention policies and witness memory had faded.

The court refused to dismiss the counterclaim against the individual defendant to counterclaim personally, but granted leave for him to act for the corporate party.

The balance of the responding parties' motion, including restoration to the trial list, was dismissed.

The insured was injured in a motor vehicle accident and applied for a catastrophic impairment determination.

The insurer denied the application based on its medical examinations.

The insured submitted a rebuttal report beyond the 80-day time limit and sought payment for its cost.

The arbitrator found the insured had a reasonable explanation for the delay and ordered the insurer to pay the report's cost.

On appeal, the Director's Delegate upheld the finding of a reasonable explanation but found the arbitrator erred in law by reversing the onus of proof regarding the reasonableness of the report's cost.

The issue of the report's cost was remitted for re-determination.