Eric B. Heath

The respondent insurer requested a reconsideration of a Tribunal decision that found the applicant catastrophically impaired based on a 55% whole person impairment rating.

The respondent argued the Tribunal provided insufficient reasons, reversed the burden of proof regarding psychiatric impairments, and erred in its assessment of musculoskeletal and headache impairments.

The Vice-Chair dismissed the request, finding that the original panel provided comprehensive, logical reasons for preferring the applicant's medical experts and correctly applied the AMA Guides.

No errors of law, fact, or procedural fairness were established.

The applicant sought a determination of catastrophic impairment and entitlement to various statutory accident benefits following a 2018 motor vehicle accident.

The Licence Appeal Tribunal found that the applicant sustained a catastrophic impairment under Criterion 7, accepting a combined Whole Person Impairment rating of 55% based on musculoskeletal, headache, medication, and psychological impairments.

While the Tribunal found the applicant was entitled to attendant care and housekeeping benefits in principle, it held that no benefits were payable because the applicant failed to prove the expenses had been incurred.

The claims for medical benefits, an award, and interest were dismissed.

The applicant sought statutory accident benefits following a motor vehicle accident.

The respondent denied the benefits, and the applicant applied to the Licence Appeal Tribunal.

The respondent raised a preliminary issue that the application was statute-barred because the applicant failed to dispute the denials within the two-year limitation period under s. 56 of the Schedule.

The applicant requested an extension of time under s. 7 of the Licence Appeal Tribunal Act.

Applying the Manuel test, the adjudicator found that the applicant did not demonstrate a bona fide intention to appeal within the time limit, provided no explanation for the significant delay, and failed to show that the respondent would not be prejudiced.

The adjudicator declined to exercise discretion to extend the limitation period, barring the applicant from proceeding to a hearing.

The applicant requested a reconsideration of a decision denying her treatment plans for chiropractic services and massage therapy, as well as the cost of an orthopaedic assessment.

She argued the Tribunal made an error of law or fact by disregarding evidence and that new evidence (the independent assessor's clinical notes) should be considered.

The adjudicator dismissed the request, finding no error of law or fact and noting that the requested clinical notes did not exist, meaning there was no new evidence that could have affected the result.

At a case conference for a personal injury action arising from a 2013 motor vehicle accident, the court addressed the plaintiff's failure to serve an expert report on the statutory threshold issue.

The court ordered the plaintiff to serve the report by May 31, 2022, rather than waiting until the 2023 trial date.

The court also granted the defendant leave to bring a motion to dismiss the co-plaintiff's claim for failing to appoint new counsel or file a notice to act in person under Rule 15.

This endorsement addresses case management issues in a long-standing action arising from a farm visit in 2005, particularly concerning the minor plaintiff Samuel Simpson who suffered significant cognitive and physical issues.

The court convened a case conference to establish a timetable for the delivery of expert reports, emphasizing the unacceptable delays in the case.

The judge ordered expedited efforts to obtain an MRI for the minor plaintiff and set specific deadlines for the service of expert reports on damages and liability for all plaintiffs and the defence.

The court also raised concerns about the minor plaintiff's representation after he turns 18 and directed counsel to make inquiries regarding a future litigation guardian.

Following an arbitration where the insurer successfully defended all claims for statutory accident benefits, the insurer sought its expenses.

The arbitrator found that the applicant's conduct, including the late production of a voluminous ODSP file and changing the structure of the case mid-hearing, unnecessarily prolonged and hindered the proceedings.

Applying the principle of fairness and noting the consumer protection nature of the legislation, the arbitrator applied a 25% discount to the insurer's legal fees and excluded surveillance costs from disbursements.

The applicant was ordered to pay the insurer's expenses fixed at $52,167.11.

The Applicant sought statutory accident benefits following a motor vehicle accident, claiming catastrophic impairment, attendant care benefits, and medical benefits.

The Insurer denied the claims, arguing the Applicant's ongoing issues were related to pre-existing conditions and that he was malingering.

The Arbitrator found the Applicant and his family members lacked credibility, noting significant inconsistencies between their testimony, the Applicant's pre-accident medical history, his receipt of ODSP benefits, and surveillance evidence showing him performing normal daily activities.

The Arbitrator preferred the evidence of the Insurer's medical experts, who found the Applicant was malingering and that his impairments were not caused by the accident.

The claims for catastrophic impairment, attendant care benefits, and medical benefits were dismissed.

The applicant sought accident benefits for physiotherapy following a motor vehicle accident.

At the hearing, the applicant's counsel requested an adjournment because the applicant was incarcerated and unable to attend.

The arbitrator denied the adjournment request, noting the disproportionate costs to the insurer and the speculative nature of the applicant's release.

As the applicant presented no evidence to substantiate his claim, the arbitrator dismissed the application.

The insurer was awarded $6,000 in expenses due to the applicant's failure to comply with production requirements and failure to advise of his whereabouts.

The applicant was injured in a motor vehicle accident while working as a truck driver.

He commenced a tort action and applied for statutory accident benefits.

The insurer argued that the applicant was statute-barred from proceeding to arbitration under s. 61 of the Schedule because he was entitled to WSIB benefits and his tort action was not bona fide.

The arbitrator found that the tort action was instituted bona fide and not primarily for the purpose of claiming statutory accident benefits.

The applicant was therefore not statute-barred from proceeding to arbitration.

The defendants brought a motion for summary judgment to dismiss the plaintiff's motor vehicle accident claim.

The collision occurred when the plaintiff attempted an improper left turn from a through lane, striking the defendant's vehicle which was proceeding lawfully in the designated left-turn lane.

Applying the enhanced fact-finding powers under Rule 20.04, the court found no genuine issue requiring a trial, concluding that the defendant could not have reasonably avoided the collision.

The motion was granted and the action was dismissed.

The applicant rental car company sought the return of a vehicle that had been fraudulently rented, crashed, and towed to the respondent repair shop.

The respondent claimed a lien under the Repair and Storage Liens Act for repairs and storage, or alternatively, compensation for unjust enrichment.

The court found no valid lien against the applicant but applied the doctrine of unjust enrichment, ordering the applicant to pay approximately half the repair costs and 60 days of storage fees to recover the vehicle.

No costs were awarded due to both parties' deficient business practices.

The defendants brought a motion for an order compelling the plaintiff to attend an in-person vocational assessment with a non-health practitioner and to provide raw test data from previous neuropsychological assessments to the defence expert.

The plaintiff opposed the motion.

The court held that it has inherent jurisdiction to order an examination by a non-health practitioner to ensure trial fairness, and that the raw test data was relevant and necessary for the defence expert to prepare his report.

The motion was granted.

Following a decision dismissing the applicant's claim for statutory accident benefits for overseas airline tickets, the insurer sought its expenses for the arbitration proceeding.

The arbitrator applied the criteria under section 12(2) of Ontario Regulation 664 and found that the insurer was completely successful.

The arbitrator rejected the applicant's argument that her modest means should preclude a costs award, noting that only the prescribed criteria could be considered.

The insurer was awarded $1,875.29 in expenses.

The Ontario Human Rights Commission brought a motion to add Allan Brandston as a personal respondent to a human rights complaint alleging failure to accommodate the complainant's creed regarding a condominium Sabbath elevator.

The Tribunal applied the two-part test from Payne, finding there was reliable evidence on the record that could lead to a finding of liability against Mr. Brandston, and that he would not suffer substantial prejudice.

The Tribunal rejected the argument that a personal respondent should not be added when a corporate respondent is already a party, noting that the Code's provisions for adding parties do not restrict their application to corporate respondents.