Deanna Samantha Gilbert

The applicant sought catastrophic impairment benefits for psychological injuries sustained after her spouse was involved in a motor vehicle accident.

The respondent insurer initially denied the claim on the basis that the applicant was not directly involved in the accident, and later scheduled insurer's examinations (IEs) which the applicant refused to attend.

The respondent raised a preliminary issue seeking to bar the applicant from proceeding with her application due to her non-attendance.

The Tribunal found that the applicant had a reasonable explanation for not attending the IEs, as the respondent had predetermined she was legally ineligible for a catastrophic impairment designation.

The Tribunal permitted the applicant to proceed with her application subject to terms, including that the respondent reschedule the IEs and the parties consider adjourning the upcoming hearing.

The plaintiffs sought costs following a successful 25-day medical malpractice trial where they "beat" a Rule 49 offer.

The defendants proposed a lower costs amount.

The court awarded the plaintiffs $3 million in costs, finding their request consistent with similar complex medical malpractice cases and justified by the defendants' conduct, which unnecessarily lengthened the proceeding and increased the plaintiffs' legal work.

The court considered factors under Rule 57.01, including the complexity of the case, the plaintiffs' complete success, and the defendants' late disclosure and attempts to introduce contradictory evidence.

The plaintiff suffered a catastrophic brain bleed and traumatic brain injury during an elective multi-step medical intervention for an asymptomatic brain AVM.

The plaintiff brought a medical negligence action against the treating physicians, alleging a failure to obtain informed consent.

The Superior Court of Justice found that the physicians failed to adequately disclose the cumulative risks of the multi-step procedure, the likelihood of requiring surgical resection, and the risks of conservative management.

The court concluded that a reasonable person in the plaintiff's position would not have proceeded with the intervention had they been properly informed, and held the physicians liable for the plaintiff's injuries.

The applicant requested a partial reconsideration of a previous Licence Appeal Tribunal decision which found that while private school tuition expenses for the applicant's brother were reasonable and necessary, the respondent was not liable to pay because the expenses were incurred prior to submitting the treatment plans, contrary to s. 38(2) of the Schedule.

The applicant argued the Tribunal erred in law by not considering s. 34 and s. 3(8) of the Schedule.

The Tribunal dismissed the reconsideration request, finding the applicant was attempting to relitigate issues and raise new arguments not presented at the original hearing.

However, the Tribunal clarified its previous decision regarding an omitted treatment plan for the 2021/2022 school year, awarding the applicant $4,730.00 for the portion of the expense incurred after the treatment plan was submitted.

The plaintiffs in a medical malpractice action brought a motion to exclude the defendants' expert witness, a vascular neurosurgeon and interventional neuroradiologist, on the basis of bias.

The court conducted a voir dire and reviewed the expert's reports, past testimony, and relationship with the defendant physicians.

The court found that the expert was not impartial, acted as an advocate, failed to disclose his professional and personal relationship with one of the defendants, and assumed the defendants' evidence was credible while ignoring the plaintiffs' evidence.

The court concluded that the expert was unable and unwilling to comply with his duty to the court and excluded his evidence in its entirety.

The plaintiff was injured in a motor vehicle accident when she was allegedly cut off by an unidentified black pick-up truck.

She sought a declaration that she could access the $1 million limit under her OPCF 44R Family Protection Endorsement.

The insurer argued that the independent witness's statement to the investigating police officer was inadmissible hearsay and could not satisfy the endorsement's corroboration requirement.

The court held that the corroboration requirement in the insurance contract does not strictly require admissible evidence, and the hearsay statement to the police officer provided sufficient independent indication of an unidentified vehicle's involvement to trigger coverage.

The applicant, a minor who sustained a catastrophic brain injury in a motor vehicle accident, sought statutory accident benefits to fund private school tuition for her twin brother.

The applicant argued that her brother's presence at the school was a necessary rehabilitative tool that significantly improved her communication and social engagement after traditional treatments failed.

The adjudicator found the treatment plans to be reasonable and necessary, rejecting the respondent's insurer examination report which speculated about potential harm to the brother.

However, the adjudicator dismissed the claim for payment because the applicant incurred the expenses before submitting the treatment plans, violating section 38(2) of the Schedule.

Claims for interest and a special award were also dismissed.

The plaintiffs brought pre-trial motions in a personal injury action arising from a bicycle-motor vehicle collision involving an eight-year-old.

The plaintiffs sought to reverse the order of presentation at trial due to the defendant's reverse onus under the Highway Traffic Act, a declaration that the minor could not be found contributorily negligent, a presumption that healthcare expenses paid by the accident benefits insurer were caused by the accident, and leave to amend the statement of claim to increase damages.

The court declined to alter the order of presentation or rule out contributory negligence at this stage.

The court also refused to presume causation for the accident benefits, requiring the plaintiffs to prove their damages on a gross basis.

However, the court granted leave to amend the statement of claim to increase the damages claimed to $22 million.

Following an appeal where success was divided, the parties made submissions on costs.

The appellant sought partial indemnity costs of $12,500, while the respondents sought $7,170 and no change to the motion judge's costs award.

The Court of Appeal ordered no costs for the appeal due to the divided success, but reduced the costs awarded below from $6,000 to $3,000, payable only to the corporate respondent.

The appellant, Randolph Burns, appealed a motion judge's order striking out his statement of claim against two corporate employees (Lauren McLean and Anna Oslizlok) without leave to amend, and granting RBC Life's request for a discovery order.

The appeal concerned the adequacy of claims pleaded against corporate employees for torts allegedly committed in the course of their employment.

The Court of Appeal found that the motion judge correctly determined that the statement of claim failed to plead specific material facts to support individualized claims against the employees, but erred in denying leave to amend.

The appeal was allowed in part, granting Mr. Burns leave to amend his statement of claim.

The defendants, RBC Life Insurance Company, Lauren McLean, and Anna Oslizlok, sought costs on a partial indemnity basis totaling $7,108.52 after successfully striking out the claim against McLean and Oslizlok and succeeding on a discovery order motion.

The plaintiff, Randolph Burns, argued for a reduced award of $2,265.00, citing uncontested portions, disproportionate time spent by defendants' counsel, and unreasonable settlement discussions.

The court found the motions important and capably argued, rejecting the plaintiff's arguments regarding work product and settlement discussions.

The court awarded $6,000, all inclusive, to the defendants.

The plaintiff sued his disability insurer and two of its employees after his long-term disability benefits were terminated.

The individual employees moved to strike the claims against them for failing to disclose a reasonable cause of action, arguing they were acting within the scope of their employment.

The insurer moved to determine the order of examinations for discovery.

The court granted both motions, striking the claims against the employees without leave to amend because the plaintiff failed to plead that their actions were independently tortious or exhibited a separate identity from the employer.

The court also ordered the plaintiff to be examined first, as the insurer had served the first notice of examination.

The respondent insurer brought a motion to stay the applicant's LAT application pending her attendance at an occupational therapy catastrophic impairment insurer's examination (OT CAT IE).

The applicant argued she was not required to attend because the insurer's notices denying catastrophic impairment and requesting the IE did not comply with the medical reasons and timeline requirements of section 45(3)(b) of the Schedule.

The Tribunal found that while the insurer's notices were indeed defective and non-compliant, the requested OT CAT IE was still reasonable and necessary to complete a deferred neuropsychological assessment.

The Tribunal granted a four-month stay of the application to allow the insurer to issue a compliant notice and for the applicant to attend the examination.

The plaintiffs brought a summary judgment motion seeking payment of a $300,000 judgment from either Gore Mutual Insurance Company or Allstate Insurance Company of Canada, following a motor vehicle accident.

The central issue was whether Gore's insured (the driver and owner) breached their insurance policy's cooperation clause.

The court found that the policy owner, Ms. Bass, did not breach her obligation to cooperate, despite Gore's difficulties in locating her, attributing these issues to Gore's own errors in communication and search efforts.

Consequently, the court ordered Gore Mutual Insurance Company to pay the judgment.

The applicant insurer sought leave to appeal an order dismissing its motion to compel the plaintiff to attend three defence medical examinations and a future care assessment.

The motion judge had denied the examinations due to the insurer's failure to comply with the rules regarding the delivery of expert reports prior to pre-trial conferences.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's exercise of discretion under section 105 of the Courts of Justice Act.

The defendant insurer brought a motion for an order requiring the plaintiff to attend a defence medical examination by a new neurologist.

A previous order had granted an examination by a different neurologist, but that expert subsequently refused to provide a report due to workload and complexity.

The plaintiff opposed the motion, arguing it was duplicitous and could jeopardize the upcoming trial date.

The court granted the motion, finding it would be unfair to require the defendant to proceed to trial without defence medical evidence, but imposed strict deadlines for the delivery of the expert report to preserve the trial date.

The plaintiff sued her physician for medical malpractice, alleging he negligently managed her right forearm pain by failing to properly assess and investigate a bump that was eventually diagnosed as a rare synovial sarcoma.

The defendant physician had diagnosed repetitive strain injury and reflex sympathetic dystrophy, treating the plaintiff with psychotherapy and medication for nine years before ordering an MRI.

The Superior Court of Justice found that the defendant breached the standard of care of a primary care physician by failing to include a tumour in his differential diagnosis, failing to properly monitor the lump, and failing to order an MRI earlier.

The court also found that this breach caused the plaintiff's damages, as an earlier MRI would have led to earlier surgical removal of the tumour and eliminated years of pain.

This is a costs decision following the dismissal of a motion brought by the defendant Wawanesa Mutual Insurance Company.

The plaintiff, Reggie Babcock, was found to be the successful party regarding costs, as the court's order for a defence medical and dismissal of the balance of Wawanesa's relief equalled or beat the plaintiff's offer to settle costs.

The court deemed Wawanesa's motion entirely unnecessary and attributed its necessity to Wawanesa's conduct.

The plaintiff was awarded substantial indemnity costs of $27,810.16, payable by Wawanesa.

The defendant Wawanesa Mutual Insurance Company brought a motion seeking orders for the plaintiff to undergo several independent medical examinations (IMEs) in a personal injury action arising from an automobile accident.

The plaintiff opposed, arguing delay and the need for leave under Rule 48.04 of the Rules of Civil Procedure.

The court found Wawanesa did not require leave under Rule 48.04 as it had not set the action down for trial or consented to its placement on the trial list.

However, the court criticized Wawanesa's significant delay in seeking IMEs, noting its failure to list expert witnesses in pretrial briefs.

The motion for a neurological examination was granted with strict deadlines for report service, while requests for occupational therapy, otolaryngology, and psychiatric examinations were dismissed due to lack of evidence regarding their necessity or the plaintiff not relying on such evidence.

The intervener insurer brought a motion to determine whether it could deny coverage based on an Excluded Driver Endorsement signed by the defendant driver.

The court found that the form used by the insurer was not the standard form approved by the Superintendent of Financial Services, as it failed to list the specific vehicles to which the exclusion applied.

Furthermore, the insurer failed to prove it had delivered a copy of the endorsement to the insured upon renewal.

The court held the insurer could not rely on the unapproved form and is obligated to defend and indemnify the defendant.