Donald Keith Smockum

The applicant sought statutory accident benefits following a motor vehicle accident, arguing his injuries fell outside the Minor Injury Guideline (MIG) due to chronic pain with functional impairment and pre-existing conditions.

The Tribunal found that the applicant's accident-related pain resolved shortly after the accident and that a subsequent workplace incident caused his ongoing back issues.

Furthermore, the applicant failed to demonstrate that his pre-existing conditions impeded his recovery within the MIG limits.

As the MIG limits were exhausted, the application for further treatment plans and interest was dismissed.

The plaintiff, Anupam Dhar, was awarded damages of $365,000 after a motor vehicle accident trial.

This decision addresses the costs.

Dhar sought partial indemnity costs up to his Rule 49 offer ($350,000) and substantial indemnity costs thereafter, as the judgment was more favourable.

The defendants, McGuinness, argued against Rule 49 consequences due to the complex liability apportionment (10% McGuinness, 90% unidentified motorist, but McGuinness 100% liable to Dhar due to insurance regulation).

The court found Dhar entitled to costs, applying Rule 49 consequences, but reduced the quantum of fees due to excessive time spent by plaintiff's counsel.

The plaintiff appealed the dismissal of his personal injury action following a motor vehicle accident.

The trial judge found the plaintiff suffered a permanent serious impairment but dismissed the action because the plaintiff failed to provide independent evidence corroborating his change in function under s. 4.3(5) of O. Reg. 461/96.

The Divisional Court allowed the appeal, holding that s. 4.3(5) does not preclude a plaintiff from providing the corroborating evidence.

The court found that interpreting the provision to require independent corroboration would disproportionately impact vulnerable groups and be inconsistent with Charter equality values.

The defendant appealed a Small Claims Court judgment finding it negligent under the Occupiers’ Liability Act after a customer entered an open service bay and was injured when a trailer moved as he attempted to steady himself while feeling ill.

The appeal argued the trial judge erred in law in concluding the occupier breached its duty of care.

The court held that findings regarding the standard of care and breach involved questions of mixed fact and law entitled to deference absent palpable and overriding error.

The trial judge’s inference that the occupier knew of the danger posed by the easily moveable trailer positioned near an open garage entrance was reasonably supported by the evidence.

No legal error or misapplication of the statutory duty of care was established.

The appellants appealed a trial judgment dismissing their insurance claim against Pembridge for late reporting and awarding only $4,000 in damages against their neighbours, the Aguiars, for nuisance causing water damage.

The Court of Appeal upheld the dismissal against Pembridge, finding the trial judge reasonably concluded the appellants breached the policy by reporting the claim four months late.

However, the Court allowed the appeal regarding damages against the Aguiars, finding the trial judge misapprehended evidence about standing water.

The Court reassessed damages at $12,500.

The appellant appealed a trial judgment regarding liability and damages for a bridge collapse.

The appellant argued the trial judge erred in findings of negligence under the Highway Traffic Act, failing to apportion negligence under the Negligence Act, misusing similar fact evidence, and improperly depreciating the cost of new materials used for repairs.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's findings on negligence, noting contributory negligence was not pleaded or argued at trial, and upholding the depreciation figure as appropriate.