David L. Silverstone

The appellant appealed an arbitrator's denial of certain statutory accident benefits, and the insurer cross-appealed, arguing the arbitrator erred in applying the 'material contribution' test for causation rather than the 'but for' test.

The Ontario Trial Lawyers Association (OTLA) sought to intervene on the issue of causation.

The Director's Delegate granted OTLA's request to intervene, finding that the causation test in accident benefits cases is an important legal issue with broad implications, and that OTLA could provide helpful submissions from a broader perspective.

The Delegate also proposed inviting Canadian Defence Lawyers to intervene to ensure balance.

The insurer brought a motion for a stay of an arbitrator's order pending the determination of its appeal.

The arbitrator had ordered the insurer to pay for certain goods, services, and a catastrophic impairment assessment, finding that the insured's impairments were caused by a 2007 motor vehicle accident.

The insurer argued that the arbitrator applied the wrong legal test for causation ("material contribution" instead of "but for").

The Director's Delegate denied the request for a stay, finding that while the appeal raised a bona fide legal issue, the insurer failed to demonstrate that it would suffer imminent hardship if the stay were refused, and the potential hardship raised was purely speculative.

The appellants appealed a trial judge's finding that they were engaged in a joint venture involving repeated and dangerous violations of the Highway Traffic Act.

The Court of Appeal dismissed the appeal, holding that the trial judge properly instructed herself on the law of joint venture tort liability and that her finding was reasonable on the evidence.

Costs of $15,000 were awarded to the respondent insurer.

In a motor vehicle accident case, the appellant's insurer appointed defence counsel under a non-waiver agreement.

Following a trial on liability, the insurer sought to intervene in the appeal to challenge a finding regarding insurance coverage, while a co-defendant moved to remove the appellant's counsel for conflict of interest.

The Court of Appeal granted the motion to remove counsel, finding an inescapable conflict between the interests of the appellant and the insurer who instructed counsel to appeal the coverage finding.

The motion to intervene was dismissed because the insurer failed to show it would be adversely affected by the judgment and bore responsibility for the confusion at trial.

The moving parties brought a motion under s. 21(5) of the Courts of Justice Act to set aside an order dismissing their motion for leave to appeal a costs order.

They argued they were denied natural justice regarding submissions on the responding party's impecuniosity and that the trial judge erred in considering impecuniosity.

The Divisional Court dismissed the motion, finding the motions judge applied the correct test for leave to appeal, made no error in principle, and properly considered impecuniosity as a relevant factor in awarding costs.

The plaintiff sought damages for negligence arising from a motorcycle collision in which a rider lost control, crossed the centre line, and struck the plaintiff’s vehicle, causing death and serious injury.

The court considered whether two other motorcyclists riding with the deceased rider were negligent and contributed to the accident.

Evidence included their guilty pleas under the Highway Traffic Act and video footage showing excessive speeds, unsafe lane changes, and stunt riding during the group ride.

The court found that the three motorcyclists were engaged in a joint venture involving unlawful and dangerous driving that created a foreseeable risk of serious harm to other road users.

The two defendants were each found 25 per cent liable for the plaintiff’s damages, jointly and severally.

The applicant, a self-represented litigant, moved to set aside an order of a single judge of the Court of Appeal that dismissed her motion for an extension of time to seek leave to appeal a Divisional Court decision.

The underlying action involved a personal injury claim arising from a motor vehicle accident.

The applicant also sought to compel the production of an article used by an expert at trial and to set aside the Divisional Court's costs award.

The Court of Appeal dismissed the motion, finding no error in the single judge's discretionary ruling that the proposed appeal raised issues of significance only to the parties.

The court also held that the production request should have been made at trial and found no reversible error in the costs award.

The plaintiffs were injured in motor vehicle accidents and sought statutory accident benefits from their insurers.

After disputes arose, the plaintiffs applied to the Financial Services Commission of Ontario (FSCO) for mediation.

When 60 days passed without a mediator being appointed, the plaintiffs commenced civil actions.

The insurers moved to strike or stay the actions, arguing that under s. 281(2) of the Insurance Act, mediation must actually be attempted and fail before an action can be brought.

The Court of Appeal dismissed the insurers' appeals, holding that the 60-day time limit in the legislation is mandatory, and mediation is deemed to have failed if not concluded within that period, freeing the insured to commence a court action.

The appellant appealed a jury verdict and a trial judge's ruling on a threshold motion following a motor vehicle accident.

The jury found the appellant 10% liable and awarded $4,000, which was reduced to zero due to income replacement benefits.

The trial judge dismissed the claim for non-pecuniary damages, finding the appellant did not sustain a permanent serious impairment.

On appeal, the appellant challenged the trial accommodations, evidentiary rulings, the threshold decision, the jury charge, the verdict, and alleged trial judge bias.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors in the trial judge's rulings and ample evidence to support the jury's verdict.

The applicant sought judicial review of a Director's Delegate decision that dismissed an appeal from an Arbitrator.

The Arbitrator had dismissed the applicant's arbitration proceeding because of a parallel civil action raising accident benefit claims from the same accident.

The Divisional Court found no error regarding reasonable apprehension of bias and held that the Director's Delegate reasonably upheld the Arbitrator's decision on choice of forum, noting the diseconomies of parallel proceedings.

The application for judicial review was dismissed.

The appellant insurer appealed a declaration that it was the first insurer to respond to tort claims arising from a single-vehicle accident involving a rented vehicle.

The renter, who was a passenger at the time, sued the rental company and the uninsured driver.

The Court of Appeal allowed the appeal, holding that the renter's standard automobile policy was not 'available' to respond to claims against the owner and driver of the rented vehicle, as the policy only provided coverage for liability asserted against the renter.

The plaintiff was injured in a motor vehicle accident caused by an uninsured driver who was fleeing police.

The plaintiff sued the uninsured driver and her own insurer under the uninsured coverage provisions of her policy, but did not sue the police or municipality.

The insurer brought a third-party claim against the police and municipality, arguing that the plaintiff was disentitled from uninsured coverage because she failed to sue the insured joint tortfeasors.

The Court of Appeal dismissed the insurer's appeal, holding that the phrase 'entitled to recover' in the Uninsured Automobile Coverage Schedule means 'entitled to recover in fact', and an injured insured is not required to sue potential joint tortfeasors to access their uninsured coverage.

The respondent was injured in a motor vehicle accident caused by an uninsured driver who was being pursued by police.

She sued the uninsured driver and her own insurer under the uninsured coverage provisions of her policy, but did not sue the police or municipality.

The insurer brought a third-party claim against the police and municipality, and argued it was not liable to pay the respondent because she failed to sue the insured joint tortfeasors.

The Court of Appeal held that an injured insured is not required to sue insured potential joint tortfeasors to access uninsured coverage, and is only disentitled if the joint tortfeasor's insurer admits liability to pay or the insured obtains judgment against them.

The appeal was dismissed.

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

The insurer denied the claim under section 59(1) of the Schedule, arguing the applicant was a Schedule 1 employee entitled to workers' compensation.

At the preliminary issue hearing, the insurer requested an adjournment to apply to WSIAT for a determination on the applicant's employment status.

The arbitrator denied the adjournment, finding no valid reason to stay the proceeding sine die when the insurer had ample notice to make the WSIAT application earlier.

Following the refusal, the parties consented to withdraw the preliminary issue.

The appellant insurer appealed an arbitrator's order requiring it to produce its complete adjusting notes, including reserves, to the date the respondent filed for mediation.

The Director's Delegate allowed the appeal and rescinded the order to produce reserves.

The Delegate held that reserve information is generally irrelevant to an insurer's conduct in assessing a claim and is protected by a zone of privacy.

Furthermore, the respondent had not even requested the production of reserves.

The order was varied to exclude reserves from the production of the adjusting records.

The appellant insurer sought to preserve the evidence of three experts regarding the cause of an infant's injuries before an action was commenced.

A previous application was dismissed because Rule 36.01 did not allow for preservation of evidence prior to the commencement of a proceeding.

Following an amendment to Rule 36.01 that expanded the definition of a party, the insurer brought a new motion.

The motion judge dismissed it on the basis of res judicata.

The Court of Appeal allowed the appeal, holding that the change in the law constituted special circumstances justifying an exception to res judicata.

The court ordered the examination of two experts who had examined the vehicle, but not the expert who only reviewed medical records.

The applicant was injured in a motor vehicle accident and sought income replacement benefits, housekeeping benefits, and payment for treatment.

The insurer terminated benefits based on medical assessments indicating full recovery.

The arbitrator dismissed the application, finding the applicant failed to prove she was substantially unable to perform her pre-accident employment or housekeeping duties.

The arbitrator preferred the insurer's medical evidence, noting the applicant's lack of supporting medical records, inconsistent testimony, and surveillance evidence showing her working.

The insurer appealed an arbitrator's order requiring it to produce all current and future surveillance information and supporting documentation regarding the claimant.

The Director's Delegate allowed the appeal, finding that under Rule 40.1 of the Dispute Resolution Practice Code, an insurer's obligation to disclose surveillance materials only arises when it decides to rely on that evidence at the hearing.

The arbitrator erred in applying a balancing approach to litigation privilege and in finding that she had unfettered discretion to order early production.

In a dispute over statutory accident benefits, both parties brought motions for the production of documents.

The insurer sought the applicant's employment and tax records to test the reliability of medical reports regarding work-related limitations.

The arbitrator ordered the applicant to produce employment records related to collateral medical benefits from one year pre-accident to the present.

The applicant sought the immediate production of all surveillance evidence obtained by the insurer.

The arbitrator held that surveillance information is subject to early disclosure to facilitate dispute resolution, finding that the applicant's interest in knowing the nature of the surveillance trumped the insurer's litigation privilege.

The insurer was ordered to produce existing and future surveillance information within 30 days.

The appellant appealed the dismissal of his claim for damages arising from a motor vehicle accident.

The Court of Appeal dismissed the appeal, finding there was evidence to support the trial judge's conclusion that the appellant failed to prove the respondent was at fault.

The appeal regarding damages was not considered as liability was not established.