Daniel Mark Himelfarb

The applicant was injured in a motor vehicle accident and submitted an Application for Accident Benefits along with a Disability Certificate that marked non-earner benefits (NEBs) as 'N/A'.

The insurer purported to terminate NEBs in December 2006.

The applicant applied for mediation more than two years later.

The insurer argued the claim was statute-barred.

The arbitrator held that the limitation period was not triggered because the applicant had not submitted a completed application for NEBs at the time of the purported denial.

The applicant was therefore not precluded from proceeding to arbitration.

The insurer defendant brought a motion seeking relief from the implied undertaking rule to compel production of a transcript from a witness’s examination for discovery taken in a separate but related action arising from the same motor vehicle accident.

The responding party argued that the transcript was protected by the deemed undertaking under rule 30.1.01 of the Rules of Civil Procedure and that privacy interests should prevail.

The court held that where the actions arise from the same incident and involve similar parties and issues, the prejudice associated with disclosure is minimal.

The evidence of the witness was central to the liability issue and access to prior sworn testimony was necessary for effective cross-examination.

The court concluded that the public interest and interests of justice outweighed privacy concerns and ordered disclosure, limiting the transcript’s use to impeachment purposes.

Following the dismissal of a third party claim, the third party defendant sought an award of costs.

No responding submissions were filed despite direction from the court.

After reviewing the submissions and the factors under Rule 57 of the Rules of Civil Procedure, the court fixed costs in favour of the third party defendant.

Costs were ordered payable forthwith by the defendants.

The appellant insurer appealed a trial judgment awarding the respondent insured statutory accident benefits and $25,000 in damages for mental distress following a motor vehicle accident.

The insurer had terminated housekeeping and transportation benefits based on a superficial independent medical examination, ignoring its own occupational therapist's recommendations.

The Court of Appeal upheld the awards for housekeeping benefits, s. 24 assessments, and mental distress, finding that peace of mind is a reasonably contemplated object of an automobile insurance contract.

The court allowed the appeal only to reduce the quantum of transportation benefits from $7,500 to $2,280 due to a lack of evidence supporting the higher amount.

The appellant appealed a motion judge's decision dismissing a claim of civil conspiracy against a respondent solicitor.

The Court of Appeal agreed with the motion judge that the pleaded facts provided no foundation for the claim.

The appeal was dismissed with costs fixed at $5,000.

The insurer brought a motion seeking production of a defence medical report prepared by a rehabilitation psychologist in the context of the insured's tort claim.

The insured opposed production, arguing the report was irrelevant, would unduly complicate the arbitration, and that the insurer already had sufficient medical reports.

The arbitrator ordered production of the report, finding it relevant to the insured's claim for a non-earner benefit and noting that the insurer's existing assessments were over a year old and lacked vocational rehabilitation expertise.

The arbitrator concluded that having the best evidence available outweighed the potential for lengthening the hearing.

The applicant, injured in a motor vehicle accident, sought statutory accident benefits and brought a motion for the production of the insurer's complete file.

The insurer claimed litigation and solicitor-client privilege over portions of the file but failed to provide supporting evidence.

The arbitrator ordered the production of documents created before May 1, 2000, finding no evidence that litigation was contemplated before the first application for arbitration.

Documents created after that date and those claiming solicitor-client privilege were ordered to be provided to the arbitrator in a sealed envelope for review.