David Elias Preszler

The applicant was involved in a motor vehicle accident on June 13, 2021, but did not submit an application for accident benefits (OCF-1) until at least February 2023.

The respondent denied benefits on the basis that the application was submitted outside the time limits prescribed by the Statutory Accident Benefits Schedule.

The applicant argued she had a reasonable explanation for the delay, citing her unsophistication, substance abuse issues, and the other driver's refusal to provide insurance information.

The Tribunal found the applicant's explanation lacked credibility due to inconsistencies between her examination under oath and her representative's submissions.

The Tribunal also noted she had successfully applied for benefits following a separate accident in May 2021.

The Tribunal concluded the applicant failed to provide a reasonable explanation for the delay and is statute-barred from proceeding with her application.

The appellants, Brandon Book and his parents, appealed a trial judge's decision dismissing their motion to set aside a 2015 personal injury settlement.

They argued Brandon was under a disability at the time of settlement and that it was unconscionable.

The Court of Appeal upheld the trial judge's findings, concluding there was no error in the capacity assessment and that the settlement should not be set aside, even if incapacity had been proven, given the principles of finality of judgments and the circumstances of the case.

The plaintiff brought a motion for leave to appeal the order of R.B. Reid J. dated November 7, 2023.

The Divisional Court granted the motion for leave to appeal, with costs reserved to the panel hearing the appeal.

This decision addresses the costs arising from three related motions in a professional negligence action.

The plaintiff sought to strike a portion of the statement of defence, while the defendants sought production of an unredacted affidavit and removal of plaintiff's counsel.

The court previously ruled that the improvident settlement defence should not be struck and ordered affidavit production (defendants successful on these two), and dismissed the motion to remove counsel (plaintiff successful).

The court determined that the motions should be viewed discretely, not collectively, for costs purposes.

Ultimately, the defendants were awarded net costs of $3,356.19, reflecting their success on two of the three motions.

The applicant was injured in a 1994 motor vehicle accident and sought a supervisory level of attendant care benefits (ACB) and several treatment plans after reopening her claim in 2015.

The respondent denied the benefits, arguing a lack of causation and relying on insurer's examinations that recommended minimal care.

The Tribunal found the applicant suffered from conversion disorder causing unpredictable, debilitating tremors, necessitating 24/7 supervisory care for her safety.

The Tribunal awarded the maximum $3,000 monthly ACB, past ACB, and all disputed treatment plans.

Furthermore, the Tribunal ordered a 50% special award against the respondent under s. 10 of Regulation 664, finding the insurer's prolonged reliance on a baseless causation argument to deny benefits was excessive, stubborn, and unreasonable.

The moving party brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the responding parties in the amount of $1,500.

The applicant, a catastrophically injured person under disability, sought court approval for a lump sum settlement of his accident benefits claim against the respondent insurer.

The application also sought approval of legal fees under a contingency fee agreement and a sealing order for the court file.

The court approved the settlement amount as fair and reasonable, despite concerns about long-term financial provision.

However, the court reduced the applicant's legal fees from 22.5% to 16.5% of the recovered amount, finding the proposed hourly rates unreasonably high and the risk assumed by counsel for the accident benefits claim to be low.

The request for a sealing order was denied, as the applicant failed to demonstrate a serious risk to an important interest outweighing the open court principle, as required by the Sierra Club test.

The defendants, D. Robert Findlay and Findlay Personal Injury Lawyers, sought an order to vary a previous court order and unseal a file related to the plaintiff's accident benefits settlement.

The plaintiff, Jarrod Seth Van Every, had commenced an action against the defendants alleging negligent representation in handling his accident benefits claim.

The defendants argued that the sealed materials were relevant to their defence and counterclaim, which alleged that the plaintiff's losses were caused by an improvident settlement by his subsequent counsel.

The court found that the defendants had standing under Rule 38.11(1) of the Rules of Civil Procedure as "persons affected by the judgment" because the sealed materials directly impacted their economic interests in the ongoing litigation.

The motion to unseal the file and produce the affidavit material was granted.

The Applicant was injured in a motor vehicle accident and applied for statutory accident benefits.

The central issues were whether he sustained a catastrophic impairment based on a Glasgow Coma Scale (GCS) score of 9 or less, and whether he was entitled to post-104 week income replacement benefits (IRBs) and attendant care benefits.

The Insurer argued the low GCS score was caused by a pre-accident drug overdose and high blood sugar, not a brain injury.

The arbitrator rejected this theory, finding the Applicant suffered a traumatic brain injury resulting in a GCS score of 9, meeting the catastrophic impairment definition.

The arbitrator also found the Applicant suffered a complete inability to engage in suitable employment due to cognitive and physical deficits, awarding ongoing IRBs.

The Applicant was deemed eligible for attendant care benefits pending a new Form 1.

Claims for a special award were dismissed.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, including a determination of catastrophic impairment, income replacement benefits, and attendant care benefits.

The insurer argued the applicant's low Glasgow Coma Scale score was due to a pre-accident drug overdose and high blood sugar, not a brain injury from the accident.

The arbitrator rejected the insurer's theory, finding the applicant sustained a catastrophic impairment due to a traumatic brain injury.

The arbitrator also awarded ongoing income replacement benefits and attendant care benefits, but declined to order a special award against the insurer.

The respondent was injured while walking the appellant’s dog when the dog suffered a seizure, escaped its collar, fell down an icy embankment, and bit her while she attempted to retrieve it.

The motion judge held that the respondent was not an “owner” under the Dog Owners’ Liability Act because she did not exercise “dominion and control” over the dog, and therefore allowed her statutory claim but dismissed her negligence claim.

The Court of Appeal held that the motion judge erred in interpreting “possesses” in the Act: possession includes physical possession and control immediately before a bite or attack.

Because the respondent was exercising actual control over the dog just prior to the incident, she fell within the statutory definition of “owner,” barring her claim under the Act.

The negligence claim was also properly dismissed because the injury was not reasonably foreseeable and the respondent’s voluntary decision to descend the icy slope constituted an intervening act breaking the chain of causation.

The plaintiff was bitten by the defendant's dog, losing part of her thumb, after the dog suffered a seizure and fell into a ditch while the plaintiff was walking it.

The defendant brought a motion for summary judgment to dismiss the action, arguing the plaintiff was in 'possession' of the dog and thus an 'owner' precluded from claiming compensation under the Dog Owners' Liability Act.

The plaintiff brought a cross-motion for summary judgment on liability.

The court held that novel questions of law can be decided on summary judgment.

The court found the plaintiff was not in 'possession' of the dog as she did not exercise dominion and control similar to an owner.

The court found the defendant strictly liable under the Act, dismissed the negligence claim as the injuries were not reasonably foreseeable, and found no contributory negligence by the plaintiff.

The defendant's motion was dismissed and the plaintiff's cross-motion was granted, with the action to proceed to trial on damages only.

The applicant, a pedestrian struck by a motor vehicle, sustained a traumatic brain injury and multiple skull fractures.

She applied for catastrophic impairment designation under the Statutory Accident Benefits Schedule based on a Glasgow Outcome Scale (GOS) score of 3 (severe disability).

The insurer denied the designation, relying on a neurologist who found no physical neurological deficits.

The arbitrator rejected the insurer's narrow interpretation of the GOS, preferring the applicant's physiatrist who considered cognitive and behavioural impairments that rendered the applicant dependent on daily support.

The arbitrator found the applicant catastrophically impaired, awarded past and ongoing attendant care benefits for services provided by her husband, approved most of the disputed medical and rehabilitation treatment plans, and held the insurer liable for a special award for unreasonably withholding benefits.

The applicant sought her expenses of the arbitration hearing following a mixed result where she was successful on her claims for income replacement and attendant care benefits, but unsuccessful on the issue of catastrophic impairment.

The insurer also sought its expenses.

The arbitrator considered the criteria under section 12(2) of Ontario Regulation 664, noting that while success was mixed, the applicant had made a reasonable offer to settle the income replacement and attendant care claims which the insurer rejected.

The applicant achieved greater success on those issues at the hearing than her offer.

The arbitrator awarded the applicant a portion of her expenses, fixed at $10,000.00, and dismissed the insurer's claim for expenses.

The applicant was injured in a motor vehicle accident and claimed attendant care and housekeeping benefits for services provided by his former wife, daughter, and a lawn care company.

The insurer denied the claims on the basis that the caregivers did not sustain an 'economic loss' as required by s. 3(7)(e) of the Statutory Accident Benefits Schedule.

A FSCO arbitrator and Director's Delegate upheld the denial, finding that mere loss of time did not constitute an economic loss.

On judicial review, the Divisional Court held that the standard of review was reasonableness, despite the concurrent jurisdiction of courts and arbitrators under the Insurance Act, and found the Delegate's interpretation of 'economic loss' as requiring a financial or pecuniary loss to be reasonable.

The insurer appealed an arbitrator's decision finding that the insured was entitled to ongoing income replacement benefits and that CPP child benefits were not deductible from those benefits.

The insured cross-appealed the arbitrator's finding that she was not catastrophically impaired, arguing the arbitrator erred in assessing her psychological whole person impairment at 28%.

The Director's Delegate dismissed both appeals.

The Delegate held that CPP child benefits are not 'disability pension benefits' under the Schedule and are therefore not deductible.

The Delegate also found that the arbitrator's factual findings on causation for the insured's disc herniations and conversion disorder were supported by evidence and reasonable.

Finally, the Delegate upheld the arbitrator's use of a hybrid approach to rate the insured's psychological impairment, finding it was a reasonable exercise of discretion that did not constitute an error of law.

State Farm appealed an arbitrator's decision awarding the respondent income replacement benefits and attendant care benefits following a motor vehicle accident.

State Farm sought a stay of the payment orders pending the appeal.

The Director's Delegate found that a complete stay would cause undue hardship to the respondent given the lengthy delays in the proceedings.

However, the Delegate granted a partial stay limited to the extent of Canada Pension Plan child benefits received by the respondent, as the deductibility of those benefits raised a legitimate and substantive question of law.

The appellant was injured in a motor vehicle accident and claimed statutory accident benefits for attendant care and housekeeping services provided by his separated wife, daughter, and a lawn care company.

The insurer denied the claims on the basis that the expenses were not 'incurred' under section 3(7)(e) of the 2010 SABS because the family members did not sustain an economic loss.

The Director's Delegate upheld the Arbitrator's decision, finding that the appellant failed to prove the family members suffered an economic loss, such as lost income or out-of-pocket expenses, as a result of providing the services.

The appeal was dismissed.

The applicant was injured in a motor vehicle accident in August 2005.

Nine months later, she suffered severe disc herniations resulting in a cauda equina-like syndrome and a conversion disorder.

The insurer denied ongoing income replacement and attendant care benefits, arguing the disc herniations were not causally related to the accident.

The arbitrator found that the accident materially contributed to the disc herniations and the subsequent conversion disorder.

However, the arbitrator concluded the applicant was not catastrophically impaired, as her combined physical (21%) and mental/behavioural (28%) whole person impairment rating was 43%, falling short of the 55% threshold.

The applicant was awarded an ongoing income replacement benefit and attendant care benefits capped at $3,000 per month for the 104-week period following the accident.

The applicant sought attendant care and housekeeping benefits following a motor vehicle accident, claiming services were provided by family members and a lawn care company.

The insurer denied the claims on the basis that the expenses were not 'incurred' under section 3(7)(e) of the Schedule because the family members did not sustain an economic loss and the lawn care company did not provide services in the course of its ordinary employment.

The arbitrator rejected the applicant's expert economic evidence that 'economic loss' includes mere loss of time or opportunity, finding it must relate to a financial or monetary loss.

The arbitrator concluded the family members failed to prove any economic loss and dismissed the claims for benefits and a special award.