David Alexander Fenicky

The plaintiff moved for a contempt finding against RBC Life Insurance Company and Anna Watroba for alleged non-compliance with a prior order to produce the complete RBC Claims Manual, also seeking disclosure of officers' names and striking of the defence.

The court found the original order ambiguous regarding the scope of "complete manual" beyond the 67 headings initially referenced in evidence.

As contempt requires proof beyond a reasonable doubt of a clear, unequivocal order and intentional breach, the ambiguity precluded such a finding.

The court dismissed all of the plaintiff's requests, noting the underlying issue was inaccurate evidence provided by the defendants in the prior motion, not a clear breach of the order.

No costs were awarded due to the defendants' role in creating the problem through inaccurate evidence.

The Regional Municipality of York brought a motion to link two expropriation arbitrations and have them heard together.

The first arbitration involved the property owner's claim for market value and disturbance damages due to development delay.

The second arbitration involved a commercial parking lot tenant's claim for business losses resulting from a temporary easement.

The Ontario Land Tribunal dismissed the motion, finding that the claims involved different damages, different expert evidence, and no common issues of fact or law other than arising from the same expropriation.

The Tribunal concluded that linking the proceedings would cause prejudice, delay, and increased costs for the tenant.

The applicant sought medical benefits for physiotherapy following a motor vehicle accident.

The respondent insurer denied the benefits on the basis that the applicant's injuries fell within the Minor Injury Guideline (MIG), which caps medical and rehabilitation benefits at $3,500.

The Tribunal found that the medical evidence, including records from the emergency room, family doctor, and insurer examination, indicated the injuries were predominantly minor soft tissue injuries.

The applicant failed to provide evidence of a pre-existing condition that would prevent maximal recovery under the MIG cap.

Consequently, the application for treatment plans and interest was dismissed.

Following an 11-day jury trial for a motor vehicle accident, the plaintiff was awarded $3,000 in damages, which was reduced to $500 due to the statutory deductible.

The defendants were successful on the threshold motion.

Both parties sought costs.

The court found divided success and noted the recovery was within Small Claims Court jurisdiction.

The court awarded the plaintiff $9,000 in trial costs and the defendants $2,500 in costs for the threshold motion.

The appellant was involved in a motor vehicle accident and sued her insurer.

After the limitation period expired, she sought to amend her statement of claim to explicitly plead an uninsured motorist claim, in addition to an underinsured motorist claim.

The Master allowed the amendment, finding the original claim sufficiently raised the issue.

The Superior Court judge reversed.

The Court of Appeal allowed the appeal and restored the Master's order, holding that the original claim, read generously, reasonably communicated an uninsured motorist claim, and the amendment merely clarified it rather than asserting a new cause of action.

The defendants brought a motion under Rule 33.02(1) of the Rules of Civil Procedure to determine the location of a defence medical examination of the plaintiff.

The plaintiff opposed travelling from Toronto to Hamilton due to discomfort with unfamiliar surroundings and the need to care for her adult daughter with disabilities who required constant supervision and medication.

The court held that defendants have a prima facie right to select the examining physician and that the modest additional travel time did not justify overriding that right.

Concerns regarding the plaintiff’s daughter were addressed by requiring the defendants to provide transportation and permitting the daughter to remain in the examination room.

The motion was granted with conditions and costs awarded to the defendants.

The plaintiff brought a motion under Rule 48.11(b) of the Rules of Civil Procedure for leave to restore a personal injury action to the trial list after it had been struck for failing to obtain pre‑trial and trial dates.

The court applied the four‑part test governing delay, including whether the delay was intentional or contumelious, whether it was inordinate and inexcusable, whether the presumption of prejudice was rebutted, and whether actual prejudice was demonstrated.

The court found a delay of two years and eight months in seeking pre‑trial and trial dates and concluded the delay was deliberate or, at minimum, inordinate and unexplained.

The plaintiff failed to provide evidence rebutting the presumption of prejudice arising from the delay.

The motion to restore the action to the trial list was therefore refused, although a related amendment correcting a misnomer was permitted.