Daniel Mark Himelfarb

The applicant sought judicial review of a Licence Appeal Tribunal (LAT) decision dismissing her claims for statutory accident benefits, including income replacement benefits, catastrophic impairment designation, and attendant care benefits.

The Divisional Court dismissed the application, finding that the LAT's decisions regarding the 104-week deadline for income replacement benefits, the assessment of catastrophic impairment criteria, and the reduction of attendant care benefits were reasonable.

The court also rejected the applicant's claims of procedural fairness violations, concluding that the LAT appropriately controlled its own process.

The defendant brought a motion to add Shreeji Hospitality of University, LLC Ramada Clarion (the "Owner") as a third party for contribution and indemnity, stemming from a separate incident in North Carolina involving the plaintiff.

The Owner opposed the motion on grounds of delay, non-compensable prejudice, and lack of jurisdiction.

The court dismissed the motion to add the Owner, finding inordinate and unexplained delay, non-compensable prejudice due to loss of records and reduced ability to obtain information from the original third party, and an absence of a real and substantial connection to Ontario for the Owner.

The court also made limited production orders against Progressive Insurance, the insurer for the original third party and the Owner, but declined to order the production of the entire underwriting file.

The applicants sought judicial review of an umpire's appraisal award under s. 128 of the Insurance Act following a house fire.

They alleged procedural fairness violations, bias, and unreasonableness, citing the aggressive conduct of the insurer's appraiser and the umpire's independent site visit.

The Divisional Court dismissed the application, finding that despite the insurer's appraiser's poor behavior, the applicants had a full opportunity to present their case.

The court held the umpire's process was fair, unbiased, and the resulting valuation was reasonable and intelligible.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario.

The Delegate held that the applicant was not entitled to deduct a lump sum amount received by the respondent for long-term disability benefits from an amount owing for past income replacement benefits.

The Divisional Court found the Delegate's interpretation of s. 7(1) of the Statutory Accident Benefits Schedule to be reasonable, as the long-term disability benefits were not 'available' to the respondent at the time the income replacement benefits were due.

The application for judicial review was dismissed.

The moving parties sought leave to appeal an associate justice's costs orders and an order dismissing a motion to increase the pre-judgment interest rate.

The Divisional Court dismissed the motion for leave to appeal the costs orders and noted that leave to appeal the pre-judgment interest order was not required.

No costs were awarded for the motion.

This judgment addresses the costs awarded in relation to applications concerning the appointment of an umpire under the Insurance Act.

Wawanesa's application was dismissed due to the respondent's reasonable apprehension of bias caused by Wawanesa's conduct in the umpire selection process.

The respondent's cross-application for umpire selection was successful.

The court awarded the respondent full indemnity costs, finding Wawanesa's conduct "high-handed and oppressive" demonstrating bad faith and disregard for proper procedure.

Despite the respondent's separate application being deemed unnecessary, the court fixed the full indemnity costs at $35,000.00, inclusive of HST and disbursements.

The parties disagreed on the value of a fire loss and proceeded to an appraisal under s. 128 of the Insurance Act.

The insurer nominated a single candidate for umpire and refused to consider any alternatives proposed by the insured.

The insurer brought an application to appoint its nominee, while the insured brought a cross-application seeking an order that the parties agree on an umpire or the insurer select from her list.

The court dismissed the insurer's application, finding that its refusal to collaborate and insistence on its sole nominee created a reasonable apprehension of bias.

The court granted the insured's cross-application.

Following the settlement of a motor vehicle accident tort claim, the plaintiffs brought a motion for costs and an increase in the pre-judgment interest rate.

The court assessed the costs of the civil action, reducing the amount claimed to account for expenses incurred due to a trial adjournment requested by the plaintiffs.

The court also considered whether the tort defendant should contribute to the costs the plaintiffs incurred in parallel statutory accident benefits (SABs) proceedings, ultimately ordering a $20,000 contribution because the SABs settlements significantly reduced the defendant's tort exposure.

The plaintiffs' request to increase the pre-judgment interest rate to offset statutory deductible increases was dismissed.

The appellant sought to appeal an interlocutory decision of the Licence Appeal Tribunal (LAT) that denied her motion to remove the respondent insurer's lawyer for an alleged conflict of interest.

The Divisional Court dismissed the appeal for want of jurisdiction.

The Court held that section 11 of the Licence Appeal Tribunal Act, 1999 only permits appeals from final decisions, not interlocutory ones.

In doing so, the Court declined to follow recent Divisional Court decisions that suggested the Court had discretion to hear interlocutory appeals in exceptional circumstances, reaffirming older jurisprudence that statutory appeal rights must be strictly construed.

This decision addresses dueling motions in a protracted fire insurance dispute.

The defendant insurer, Wawanesa, sought a Rule 32 inspection of the damaged property, while the plaintiff insureds, the Arvanitopoulos family, sought directions for the appraisal process under the Insurance Act and a mandatory interlocutory injunction to compel continued Additional Living Expense (ALE) payments.

The court dismissed Wawanesa's motion as an improper reprise of a previously decided motion.

It also dismissed the Arvanitopoulos family's requests for appraisal directions, affirming the umpire's authority, and denied their mandatory injunction for ALE, citing the absence of an undertaking, a strong prima facie case, and irreparable harm.

However, as a term of dismissal, Wawanesa was ordered to continue ALE payments for May, June, and July 2022.

This endorsement addresses the costs of a successful motion by the plaintiffs to amend their Statement of Claim, substituting "John Doe" defendants with specific named defendants (the Hurley defendants).

The plaintiffs sought partial-indemnity costs of $10,457.32.

The Hurley defendants argued for costs in the cause or a reduction in the amount.

The court, applying the principle that costs follow the event, awarded the plaintiffs $9,000 in partial indemnity costs, inclusive of HST, payable within 60 days.

The plaintiffs brought a motion to amend their Statement of Claim to replace 'John Doe Retailer' and 'John Doe Installer' with the names of the specific defendants who sold and installed a furnace that allegedly caused a fire.

The proposed defendants opposed the motion, arguing the limitation period had expired and they had no notice of the claim.

The court granted the motion, finding that the 'litigation finger' clearly pointed at the proposed defendants and that actual notice or due diligence is not required to correct a misnomer under the Rules of Civil Procedure and the Limitations Act, 2002.

Following a decision on motions relating to an insurance appraisal process, both parties sought costs.

The court found that while success was somewhat divided, the defendant was the more successful party overall.

The court awarded partial indemnity costs of $6,547.04 to the defendant in the cause.

The defendant insurer brought a motion to appoint an appraiser on behalf of the plaintiff insureds under s. 128 of the Insurance Act following a residential fire.

The plaintiffs brought a responding motion seeking declarations that the appraisal proceed without regard to policy limits and include damages caused by the insurer's contractors.

The parties agreed on the scope of the appraisal but disagreed on whether the insurer had waived policy limits.

The court appointed the plaintiffs' chosen appraiser, noting its limited jurisdiction under s. 128(5), and ordered the appraisal to proceed without regard to policy limits but without prejudice to any rights or defences under the policy.

Following the resolution of insurance coverage issues and the dismissal of the action against the uninsured motorist carrier, the plaintiffs sought costs thrown away on a substantial indemnity basis.

The plaintiffs argued the tortfeasor's insurer denied coverage for tactical reasons, necessitating a separate action.

The court rejected this argument, finding the insurer's denial of coverage due to lack of cooperation from its insured was reasonable.

The court awarded the plaintiffs partial indemnity costs of $3,500 plus $500 in disbursements for the extra discovery steps required, payable in the cause.

The applicant, Royal & Sun Alliance Insurance Company (RSA), sought an order compelling the respondent, Intact Financial Corporation (Intact), to contribute its proportionate share to the settlement of an underlying personal injury claim.

The core issue was whether Intact's liability for coverage was estopped by a previous decision by Mew J., which held Intact's policy to be excess coverage.

The court found that while the duty to defend was estopped, the ultimate question of coverage was not, as it was collateral to Mew J.'s earlier decision.

Applying Supreme Court and Court of Appeal guidance, the court determined that RSA's and Intact's policies provided primary coverage for different risks and were complementary, not overlapping, thus making "other insurance" clauses inapplicable.

Intact was ordered to reimburse RSA for its proportionate share of the settlement.

The applicant, Northbridge General Insurance Corporation, appealed an arbitration decision that found it was higher in priority to pay statutory accident benefits for an individual with advanced dementia.

The arbitrator had determined that the individual was not principally dependent on her daughter for care, which would have shifted priority to the daughter's insurer, RBC General Insurance Company.

The Superior Court reviewed the arbitration decision on a standard of reasonableness, finding no error in the arbitrator's assessment of dependency, which considered the extensive care provided by a long-term care facility versus the daughter's contributions.

The appeal was dismissed.

The plaintiff brought a motion to set aside an order dismissing his action for delay.

The action, arising from a 2004 motor vehicle accident, was administratively dismissed in December 2012 after the plaintiff failed to set it down for trial.

Applying the Reid factors, the court found the plaintiff failed to provide a reasonable explanation for the delay, did not bring the motion promptly, and failed to demonstrate an intention to proceed.

The court also found the defendants would suffer prejudice due to the passage of time and lack of medical evidence.

The motion was dismissed.

The plaintiffs and a successful co-defendant sought costs following a summary judgment motion that determined liability for a chain-reaction motor vehicle accident.

The unsuccessful defendants argued that costs should not be awarded until damages were resolved and disputed the scale of costs.

The court held that liability costs could be fixed immediately and awarded partial indemnity costs to both the plaintiffs and the successful co-defendant, as the parties seeking substantial indemnity costs failed to provide evidence of their formal offers to settle.

In a multi-vehicle “chain reaction” collision case, the plaintiffs and two co‑defendants moved for summary judgment seeking a determination that the rear driver and vehicle owner were solely liable and that the other drivers did not contribute to the accident.

The motion judge considered evidence including a police accident report, transcripts from a related Highway Traffic Act prosecution, and discovery transcripts.

Applying the summary judgment principles articulated in Hryniak v. Mauldin, the court held that the evidentiary record permitted a fair and just determination without a trial.

The court found that the rear driver failed to rebut the presumption of negligence applicable to rear‑end collisions and rejected his inconsistent version of events.

Liability was therefore imposed on the rear driver and the vehicle owner, while the other drivers were found not liable.