David Glen Lavkulik

Following a jury trial arising from a motor vehicle accident in which the plaintiff recovered $794,603 in damages, the court determined the appropriate costs award.

The plaintiff sought partial indemnity costs to the date of an offer to settle and substantial indemnity costs thereafter under Rule 49.10 of the Rules of Civil Procedure.

The defendants argued the plaintiff’s legal fees and disbursements were excessive, including the use of two senior counsel and multiple expert reports.

The court found the litigation complex and lengthy, noting the plaintiff’s complete success at trial and the defendant’s failure to make reasonable settlement offers.

Applying the discretion under s.131 of the Courts of Justice Act and Rule 57 principles, the court fixed costs significantly in favour of the plaintiff while disallowing certain expert disbursements for witnesses not called at trial.

During jury deliberations in a motor vehicle accident trial, the defendant brought a motion to determine whether the plaintiff's claims were barred by the statutory threshold under Bill 59 of the Insurance Act.

The court reviewed the medical evidence and the plaintiff's testimony regarding her chronic pain, fatigue, and psychological impairments.

Applying the test from Meyer v. Bright, the court found that the plaintiff had sustained a permanent serious impairment of an important physical, mental, or psychological function.

The defendant's motion was dismissed.

The appellant's personal injury action arising from a motor vehicle accident was dismissed by the motion judge due to her failure to fulfill undertakings given during examinations for discovery while self-represented.

The Court of Appeal allowed the appeal and reinstated the action, finding that the motion judge failed to balance the prejudice to the appellant against any prejudice to the respondents, who provided no evidence of prejudice.

The court emphasized that a potentially meritorious claim should not be dismissed on procedural grounds unless the defendant demonstrates prejudice to their ability to defend the claim.

The appellant was injured in a motor vehicle accident and referred by his family doctor for a functional capacity evaluation and surface electromyograph.

The insurer refused to pay the full assessment fee, and an arbitrator reduced the fee by 50% based on the perceived limited value of the resulting report.

On appeal, the Director's Delegate held that the reasonableness of an assessment expense under section 24 of the SABS should focus primarily on the process—the time, care, and expertise involved—rather than the ultimate usefulness or correctness of the opinion.

Finding the assessment process reasonable, the Delegate ordered the insurer to pay the full account.

The applicant was injured in a motor vehicle accident and sought payment for a functional capacity evaluation and a surface EMG under section 24 of the Statutory Accident Benefits Schedule.

The insurer refused payment, arguing the expenses were medical services subject to section 38 requirements or were experimental.

The arbitrator held that diagnostic assessments obtained to assist in preparing a treatment plan fall under section 24 and are not subject to section 38.

However, the arbitrator reduced the claimed amount by 50% because the quality and value of the reports were questionable due to missing pre-accident information and unexplained test results.

The applicant was awarded $637.50 plus interest and arbitration expenses.