Eric Boschetti

This decision addresses a threshold motion brought by the defendants in a motor vehicle accident claim.

The plaintiff, Barry O'Brien, sought damages for injuries sustained, including a pilon fracture of his left ankle, depression, PTSD, and an exacerbation of low back symptoms.

A jury had previously awarded general damages and past loss of income but no future loss of income.

The defendants argued that the plaintiff's injuries did not meet the 'permanent serious impairment' threshold under s. 267.5(5) of the Insurance Act, RSO 1990, c I.8, and Regulation 461/96, thereby barring his claim for non-pecuniary loss.

The court, while considering the jury's verdict, independently assessed the medical and other evidence.

It concluded that the plaintiff's left ankle fracture resulted in a permanent serious impairment of an important physical function related to his employment, substantially interfering with his ability to continue heavy labour, especially considering the future deterioration due to arthritis.

However, the court found that the impairment did not substantially interfere with most of his usual activities of daily living.

Consequently, the defence's threshold motion was dismissed.

During a motor vehicle accident trial, the plaintiffs objected to the admissibility of a defence psychiatrist's evidence, Dr. Robert Hines.

Initially, the objection concerned Rule 53.03, but it was withdrawn based on the *Westerhof* decision.

The court then raised a concern regarding the defence's attempt to both file Dr. Hines' reports under s. 52 of the *Evidence Act* and call him as a witness, which is contrary to established case law (*Ferraro v. Lee*, *Iannarella v. Corbett*).

Despite the defence counsel's prior involvement in *Iannarella* and the court's gatekeeping role, the defence insisted on calling the witness.

The court, exercising its discretion, allowed Dr. Hines to testify but ordered his reports removed from the jury's document brief to mitigate prejudice to the plaintiffs, while reserving the issue of costs for later consideration.

The applicant, having successfully obtained a declaration that the respondent insurer had a duty to defend, sought costs of the application on a substantial indemnity basis.

The applicant argued that the respondent's position was contrary to established law and that the respondent caused undue delay.

The court found that while there were some delays, they did not warrant substantial indemnity costs.

Costs were awarded to the applicant on a partial indemnity scale in the amount of $18,000 inclusive of disbursements and HST.

The applicant construction contractor sought a declaration that an insurer owed it a duty to defend as an additional insured under a project‑specific commercial general liability policy issued to a subcontractor.

The underlying action involved a pedestrian trip‑and‑fall allegedly caused by a sunken paver installed during a streetcar island construction project.

The insurer argued the policy only applied to liability arising from the subcontractor’s operations and that the pleadings did not allege such liability.

The court held that the pleadings contained undifferentiated negligence allegations against all defendants and could potentially attribute liability to the subcontractor’s work.

Applying established duty‑to‑defend principles, the court found that any ambiguity must be resolved in favour of the insured and concluded the insurer had a duty to defend.

This was a costs endorsement following the dismissal of a summary judgment motion concerning consent to operate a motor vehicle after a collision.

The insurer sought substantial indemnity costs, alternatively partial indemnity costs, against the moving defendant.

The court held that the motion itself was not brought in bad faith or unreasonably, although the materials tendered on the moving party's behalf were described as approaching unreasonable.

Applying the fairness and reasonableness approach to costs, the court fixed the insurer's costs at an all-inclusive amount of $10,000 payable forthwith.

The insurer brought a preliminary motion seeking an order to compel the applicant to produce her entire post-accident employment file.

The applicant had applied for statutory accident benefits following a motor vehicle accident but did not claim income replacement benefits, having returned to work three days after the accident.

The insurer argued the employment file was relevant to assessing her disability from activities of daily living.

The arbitrator dismissed the motion, finding that the request failed to meet the tests of relevance and reasonableness, as no income replacement benefits were claimed and there was already adequate medical documentation to address the entitlement questions.

Following a decision on statutory accident benefits where the insurer was wholly successful, the insurer sought its expenses for the arbitration proceeding.

The arbitrator found that the applicant had obstructed the proceeding by failing to comply with an arbitrator's order to produce his employment file and by failing to provide particulars of a special award claim before withdrawing it at the hearing.

The arbitrator awarded the insurer its legal fees and disbursements, reducing some of the claimed hours as excessive.

The insurer brought a motion for expenses thrown away after bringing a third-party production motion to obtain the applicant's complete student file from the Academy of Learning.

The file was ultimately produced just before the motion hearing.

The insurer argued the applicant failed to produce the entire file despite attending the Academy.

The arbitrator found no clear evidence of abuse by the applicant and declined to make an interim expense order, leaving the issue of expenses to the hearing arbitrator.

The applicant sought statutory accident benefits for housekeeping and home maintenance services, as well as the cost of an assessment, following a motor vehicle accident.

The arbitrator found the applicant's evidence regarding his pre- and post-accident housekeeping activities to be unreliable, inconsistent, and exaggerated.

The arbitrator concluded that the applicant did not suffer a substantial inability to perform his housekeeping tasks and that the claimed expenses were not reasonable or necessary.

The request for the cost of the assessment was also denied as it amounted to a duplication of services.

The application was dismissed.