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 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.

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 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.