Derek L. Smith

The applicant sought reconsideration of a Licence Appeal Tribunal decision denying her claims for medical benefits, expenses, and an award under the Statutory Accident Benefits Schedule following a motor vehicle accident.

The adjudicator found no error of fact or procedural unfairness regarding the denial of several OCF-18 treatment plans, noting the applicant's ongoing pain complaints indicated the treatment goals were not being met.

However, the adjudicator found an error was made regarding an October 2018 OCF-23, ruling that the outstanding amount was payable because the applicant had changed clinics while under the Minor Injury Guideline.

The request for reconsideration was partially granted.

The applicant sought entitlement to statutory accident benefits for medical treatments, transportation, and damaged clothing following a motor vehicle accident.

The adjudicator found that the applicant failed to prove the treatment plans were reasonable and necessary, noting that the physical treatment goals were not being met and preferring the respondent's psychological assessment over the applicant's.

Claims for transportation and clothing were dismissed for lack of evidence.

The application was dismissed in its entirety.

The defendant insurer moved for summary judgment to dismiss the plaintiff's claim under the uninsured provisions of his automobile insurance policy.

The plaintiff alleged the accident was caused by an unidentified vehicle, but his own evidence and initial reports contradicted this, attributing the rear-end collision to his own faulty driving.

The court found no corroborating material evidence of an unidentified vehicle's involvement, as required for claims over $200,000, and insufficient evidence to establish a triable issue for claims under $200,000.

The motion was granted, and the action dismissed.

The defendant brought a motion for summary judgment in a motor vehicle collision action, seeking to dismiss the plaintiff's claim on liability.

The motion hinged on witness credibility, with conflicting accounts from the plaintiff, defendant, and a third-party witness.

The court found it could not fairly resolve the central credibility issues on a paper record due to inconsistencies in witness testimonies, the absence of objective evidence (e.g., police investigation, accident reconstruction), and improper limitations on cross-examination of the defendant.

The court also declined to order a mini-trial on liability, citing the potential for bifurcation and increased inefficiency if the plaintiff were to prevail, necessitating a separate damages trial.

Consequently, the motion for summary judgment was dismissed, and the defendant was ordered to pay the plaintiff's costs.

The plaintiffs sought leave to amend their Statement of Claim in a dental malpractice action, proposing new particulars of alleged negligence related to the defendant's surgical procedures and post-operative care.

The defendant argued these amendments constituted new causes of action outside the limitation period.

Applying a factually-oriented approach to "cause of action" under Rule 26.01, the court found that most proposed amendments arose from the same factual matrix as the original claim and did not constitute new causes of action.

Leave was granted for these amendments, as no non-compensable prejudice was found.

However, an amendment that pleaded evidence, contrary to Rule 25.06(1), was denied.

The moving defendant sought security for costs under Rule 56.01(1)(a) of the Rules of Civil Procedure on the basis that the plaintiff was ordinarily resident outside Ontario and had no assets within the jurisdiction.

The plaintiff opposed the motion, asserting impecuniosity and arguing that an order for security would prevent the claim from proceeding.

The court granted leave to bring the motion despite it being brought late after the action had been set down for trial.

However, the court accepted the evidence that the plaintiff lacked financial resources and would be unable to post security.

Applying the principle that meritorious claims should not be prevented from proceeding due to poverty unless plainly devoid of merit, the court dismissed the motion.

The appellant insurer appealed a judgment based on a jury verdict granting the respondent insured's claim for coverage under an automobile insurance policy.

The insurer argued there was no evidence to support the jury's finding that the insured satisfied her obligation to notify the insurer of a material change in risk when her son obtained his G2 licence.

The Court of Appeal dismissed the appeal, finding it was open to the jury to conclude that a reasonable person in the insured's circumstances would not have known the insurer would regard the licence change as a material change requiring notification to maintain coverage.

The court also rejected the insurer's argument that the trial judge unduly intervened in the examination-in-chief of a witness.

The applicants, an elderly couple who acted as foster parents, were injured in two motor vehicle accidents.

They applied for statutory accident benefits, including rehabilitation benefits for child care costs related to their foster children, and housekeeping benefits.

The insurer denied the claims, arguing that child care did not qualify as a rehabilitation expense and relying on surveillance and medical reports to dispute the housekeeping claims.

The arbitrator found that the child care expenses were reasonable and necessary to rehabilitate the applicants and allow them to reintegrate into their societal roles as foster parents.

The arbitrator also awarded the housekeeping benefits and ordered the insurer to pay a special award of $5,000 in total, finding that the insurer had unreasonably withheld payments, failed to communicate adequately, and treated the vulnerable applicants in a harsh and high-handed manner.

The applicant sought production of the insurer's adjuster's log notes generated between the settlement of his first set of accident benefits claims and his second application for arbitration.

The insurer claimed litigation privilege over the entire file.

The arbitrator held that the insurer bears the burden of proving privilege and that litigation was not reasonably contemplated immediately after the first settlement.

The arbitrator ordered production of the log notes generated up to the date of the second application for mediation, finding that the adjustment phase continued until that point.

The applicant was injured in a motor vehicle accident and received income replacement benefits.

The insurer terminated these benefits based on a Designated Assessment Centre (DAC) report.

However, the DAC was not authorized to conduct the required post-104 week disability assessment and applied the wrong test.

The arbitrator held that the insurer failed to comply with the statutory termination procedures under section 37 of the Statutory Accident Benefits Schedule, rendering the termination invalid.

The applicant was awarded ongoing income replacement benefits, housekeeping benefits, and a nominal special award of $1 for the insurer's unreasonable conduct.

Claims for attendant care benefits and hearing expenses were dismissed.

The plaintiff's application for leave to appeal an interlocutory order regarding the attendance of co-defendants at examinations for discovery was dismissed.

The parties made written submissions on costs.

The defendants sought $4,544.90.

The court considered the factors under section 131 of the Courts of Justice Act and Rule 57.01, noting some procedural delays by the plaintiff but also adjusting for duplication of work.

Costs were fixed at $3,500 inclusive of disbursements and GST.

The plaintiff brought a motion for leave to appeal an interlocutory order that allowed the co-defendants to attend each other's examinations for discovery.

The plaintiff argued that the defendants should be excluded because credibility was in issue regarding a letter sent to the plaintiff after a motor vehicle accident.

The court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's decision that the plaintiff had not met the onus of demonstrating that the ends of justice required exclusion.

Following a motor vehicle accident, the injured party settled her tort claim.

The settlement included an agreement that the defendants' insurer would negotiate OHIP's subrogated claim directly.

When the insurer later refused to pay, OHIP sued.

The trial judge found a binding agreement existed and that the insurer was estopped from raising a limitation defence.

The Court of Appeal dismissed the insurer's appeal, finding no palpable error in the trial judge's conclusion that an agreement was reached, and holding that the six-year limitation period did not begin to run until OHIP received notice of the insurer's repudiation of the contract.

The plaintiff appealed the dismissal of his civil action relating to a motor vehicle accident.

Following a jury trial where damages were assessed at $34,000, the trial judge ruled that the plaintiff failed to meet the threshold under s. 266(1)(b) of the Insurance Act and dismissed the action.

On appeal, the plaintiff argued the trial judge erred in his jury charge, in relying on the jury's findings for the threshold issue, and in finding the threshold was not met.

The Court of Appeal dismissed the appeal, finding no error in the jury charge, confirming a judge may consider the jury verdict on the threshold issue, and agreeing the plaintiff did not meet the onus to establish a permanent serious impairment.

The defendants appealed a trial judgment finding them liable for injuries sustained by a bus passenger when the driver braked suddenly to avoid a cyclist.

The trial judge awarded $22,500 in general damages for chronic back and hip strain, finding the injuries met the threshold under the Insurance Act.

On appeal, the defendants argued the trial judge erred in finding negligence, assessing the medical evidence, and failing to draw an adverse inference from the plaintiff not calling her initial treating physician.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's findings of fact and negligence.

The judgment was varied on consent only to correct a mathematical error in the statutory deductible.

The successful respondents sought to have the costs of the motion and the appeal fixed by the Court of Appeal.

The Court held that the costs of the motion were a matter for the motions judge.

The Court fixed the costs of the appeal payable to the respondents on a partial-indemnity basis at $7,500 plus assessable disbursements and G.S.T.

The plaintiff was injured in a motor vehicle accident allegedly caused by icy roads and sued the City of Scarborough.

OHIP sought to advance a subrogated claim against the City for the cost of the plaintiff's insured medical services.

The City argued the claim was barred by s. 30(5) of the Health Insurance Act and s. 267.8(18) of the Insurance Act because it was insured under a motor vehicle liability policy.

OHIP argued the bar only applied when the City was sued as an owner or operator of a vehicle, not as a road authority.

The Court of Appeal dismissed OHIP's appeal, holding that the plain wording of the statutes barred the subrogated claim regardless of the capacity in which the City was sued.

The applicant was injured in a motor vehicle accident while riding her bicycle and sought statutory accident benefits.

The insurer terminated her income replacement and medical/rehabilitation benefits based on designated assessment centre (DAC) reports.

The arbitrator found that the applicant suffered a substantial inability to perform the essential tasks of her employment as a house cleaner due to chronic pain, entitling her to income replacement benefits up to the two-year anniversary of the accident.

The arbitrator also awarded medical benefits for prescription medications and transportation expenses, but denied claims for chiropractic care and injections as they were not reasonable or necessary.

The claim for hydrotherapy was deemed premature.

The arbitrator declined to make a special award, finding the insurer's reliance on the DAC reports was not unreasonable.