Derek G. Nicholson

The plaintiff, Rama Hashemi, represented by a litigation guardian, sought a declaration of capacity to manage his financial affairs and court approval of a settlement.

The court reviewed capacity assessments from three designated assessors, which collectively affirmed Mr. Hashemi's capacity.

Consequently, the court declared Mr. Hashemi capable of managing his financial affairs.

However, because he was no longer considered a 'person under disability' under the Rules of Civil Procedure, court approval of the settlement was deemed unnecessary and inappropriate, as he was capable of making such decisions himself.

The insurer appealed an Arbitrator's decision awarding the insured income replacement benefits and medical benefits following a motor vehicle accident.

The insurer argued the Arbitrator failed to apply the 'but for' test for causation, misapprehended evidence, and awarded costs for treatment plans he found unreasonable.

The Director's Delegate dismissed most of the appeal, finding the Arbitrator properly applied the causation test and assessed credibility.

However, the appeal was partially allowed regarding specific treatment plans where the Arbitrator made findings of fact unsupported by evidence.

The insured's cross-appeal for the cost of two surgeries in Florida was dismissed because the treatment plans were not signed by a regulated health professional in Ontario and were submitted after the surgeries had already occurred.

The plaintiff, Paramjit Singh, and the defendant, Shoppers Home Health Care (Ontario) Inc., each sought costs following a four-week jury trial.

The jury found Shoppers liable for Mr. Singh's injuries but also found Mr. Singh 75% contributorily negligent, resulting in a total award of approximately $73,000, which was less favorable than Shoppers' Rule 49.10 settlement offer of $100,000.

The court determined that Shoppers' global offer to multiple plaintiffs (Mr. Singh and his family with FLA claims) was valid and triggered Rule 49.10 cost consequences.

The court then assessed Mr. Singh's partial indemnity costs up to the offer date and Shoppers' partial indemnity costs from that date to the end of trial, considering factors under Rule 57.01.

Despite Mr. Singh's success on liability, his low recovery and high contributory negligence meant the Rule 49.10 offer was beaten.

The court ultimately concluded that the allowable costs for both parties were effectively equivalent ($131,633 for Mr. Singh and $128,500-$138,500 for Shoppers) and declined to order costs payable by either party.

The plaintiffs advanced $60,000 to the defendant, claiming it was a personal loan.

The defendant argued the funds were intended for a high-risk investment in a third-party lending business.

The court found that the plaintiffs knew the funds were for an investment, but the defendant only invested $26,000 and secretly retained $34,000 to reduce his own exposure to the scheme.

The court ordered the defendant to repay the $34,000 he misappropriated, but dismissed the claim for the $26,000 that was actually invested and lost when the scheme collapsed.

The applicant was injured in a motor vehicle accident and sought income replacement and medical benefits from her insurer.

The insurer denied the benefits, arguing that the applicant's ongoing impairments were caused by a subsequent slip and fall incident rather than the motor vehicle accident.

The arbitrator found the applicant credible and concluded that the motor vehicle accident rendered an asymptomatic condition symptomatic, making her vulnerable to subsequent flare-ups.

The arbitrator awarded income replacement benefits from March 2014 onwards and approved several treatment plans, but denied a special award, finding the insurer had not acted unreasonably given the complex medical evidence.

The plaintiff was injured when he tripped and fell into a glass wall while playing squash at a city-owned sports centre.

The defendants moved for summary judgment dismissing the claim under the Occupiers' Liability Act.

The court dismissed the motion, finding the defendants' documentary record deficient, particularly because their sole affidavit relied on information and belief without specifying the sources, failing to meet the evidentiary burden to establish the standard of care, voluntary assumption of risk, or the independent contractor defence.

This endorsement clarifies the appropriate payee for structured and non-structured settlement payments for a person under a disability.

The court initially raised concerns about direct payment to the incapable person, preferring payment to the incapable person rather than the guardian.

However, based on expert advice from McKellar Structured Settlements Inc., it was determined that the annuity insurer would not be discharged if payments were made directly to an incapable person.

Consequently, the court revised the judgment to direct payments to the guardian of property for the benefit of the incapable person, ensuring tax compliance and proper discharge for the insurer, while affirming the guardian's commitment to the incapable person's best interests.

The applicant, an adult under disability, sought court approval for the settlement of his Statutory Accident Benefits claim against Intact Insurance Company.

The court approved the settlement, which included a $200,000 lump sum payment and a structured settlement annuity.

The court also approved the applicant's solicitor-client account of $40,005.22.

Following a motion where the moving party sought to bifurcate liability and damages at trial, the responding plaintiffs successfully opposed the motion but were unsuccessful on a jurisdictional argument regarding whether the court could order bifurcation without consent.

The court addressed the appropriate costs award arising from that motion.

Applying the principle that costs generally follow the event, the court held that the successful party should receive costs notwithstanding partial success by the moving party on a legal argument.

Costs were fixed on a partial indemnity basis and reduced to reflect the divided success.

The responding defendant was ordered to pay a lump sum amount inclusive of HST and disbursements.

The defendant municipality brought a motion to bifurcate the trial into separate hearings for liability and damages three months before a scheduled five-week trial for a catastrophic motor vehicle accident.

The plaintiff opposed the motion.

The court held that while Rule 6.1.01 permits bifurcation on consent, it does not remove the court's inherent jurisdiction to order it without consent in exceptional cases.

However, applying the Bourne v. Saunby factors, the court found the case was not so extraordinary as to warrant bifurcation, noting that much of the damages preparation was already complete and delay would prejudice the plaintiff.

The motion was dismissed.

The plaintiff brought a motion for summary judgment seeking a declaration that she suffered a 'catastrophic impairment' under the Statutory Accident Benefits Schedule following a motor vehicle accident.

The plaintiff relied on an application completed by her psychologist and argued the insurer failed to provide proper notice for a further psychiatric assessment.

The court applied the 'full appreciation' test for summary judgment and found the plaintiff's motion record inadequate, lacking sworn evidence from the plaintiff or her experts.

The court dismissed the motion, concluding that a trial was necessary to properly assess the conflicting expert evidence regarding the plaintiff's impairment.

The appellants appealed an order finding that amendments to a condominium declaration merely clarified existing rights rather than altering substantive rights.

The application judge found that the amendments removed inconsistencies constituting ambiguities regarding repair obligations, reflecting a 34-year history of agreement between the condominium corporation and unit owners.

The Court of Appeal held that this finding was open to the application judge and dismissed the appeal.

The applicants sought judicial review to set aside a settlement reached by the Workplace Safety and Insurance Board in a subrogated action against the respondent.

The Board, acting as dominus litis, settled the action for $130,000 after considering an independent legal opinion and the applicants' position.

The Divisional Court applied the patent unreasonableness standard of review and found that the Board's decision to compromise the lawsuit was reasonable, dismissing the application.

The Crown appealed a trial judgment that apportioned liability equally between the Crown and the respondents for a 1974 helicopter crash caused by a cracked rotor blade.

The Crown argued that the respondents' negligence in inspecting the blade severed any causal link to the Crown's prior negligence, and challenged the trial judge's quantification of damages.

The respondents cross-appealed, arguing the Crown should bear most of the responsibility, and appealed the awards for prejudgment interest and costs.

The Court of Appeal dismissed both the appeal and cross-appeal, finding that the trial judge made no palpable and overriding errors in apportioning liability 50/50, assessing damages, or exercising discretion on costs and interest.

The appellants appealed a decision dismissing their motion on the basis that the Superior Court of Justice lacked jurisdiction because the matter was in the nature of a judicial review application.

The appellants argued the Superior Court had inherent jurisdiction to decline to approve a settlement by the Workers' Compensation Board.

The Court of Appeal dismissed the appeal, holding that the Board's decision to compromise the action was an exercise of a statutory power of decision, and any challenge must be brought by way of judicial review before the Divisional Court.

The complainant trade union alleged that the respondent employer violated the statutory freeze provisions of the Hospital Labour Disputes Arbitration Act and the Labour Relations Act by failing to pay an annual wage increase and a week-end premium, and that this conduct was improperly motivated.

The Ontario Labour Relations Board found that the employer breached the freeze provisions by failing to pay the annual wage increase, as there was an established pattern of maintaining wages at a specific rate relative to the central collective agreement.

The Board dismissed the complaints regarding the week-end premium and improper motivation, finding no established pattern for the premium and no evidence of anti-union animus.

The employer was ordered to pay the wage increase retroactively with interest.