Dr. Andy Cancelliere

The defendants moved to adjourn a lengthy personal injury trial arising from a 2014 motor vehicle accident, citing late service of expert reports and outstanding productions by the plaintiffs.

The court considered the principles for adjournment, including the objective of a just determination on merits and potential prejudice.

While some late reports for one plaintiff (Khadim) were not sufficient for adjournment, a recently served psycho-vocational report for the other plaintiff (Khan) indicating complete unemployability was deemed significant.

The court found that the defendants would be prejudiced if they could not adequately respond to this new evidence.

Despite the impact of the COVID-19 pandemic on trial scheduling, the motion to adjourn was granted to ensure a fair trial on the merits, vacating the fixed trial date.

The applicant was injured in a motor vehicle accident in August 2005.

Nine months later, she suffered severe disc herniations resulting in a cauda equina-like syndrome and a conversion disorder.

The insurer denied ongoing income replacement and attendant care benefits, arguing the disc herniations were not causally related to the accident.

The arbitrator found that the accident materially contributed to the disc herniations and the subsequent conversion disorder.

However, the arbitrator concluded the applicant was not catastrophically impaired, as her combined physical (21%) and mental/behavioural (28%) whole person impairment rating was 43%, falling short of the 55% threshold.

The applicant was awarded an ongoing income replacement benefit and attendant care benefits capped at $3,000 per month for the 104-week period following the accident.

The appellant, who suffered a serious brain injury in a motor vehicle accident, appealed an arbitrator's decision terminating his non-earner benefits as of August 31, 2002.

The arbitrator had found that by September 2002, the appellant had resumed quality participation in enough of his pre-accident activities, such as socializing and attending school, that he no longer suffered a complete inability to carry on a normal life.

The Director's Delegate dismissed the appeal, finding no error in the arbitrator's holistic assessment of the appellant's pre- and post-accident activities and potential.

The applicant, who was 17 years old and expelled from school at the time, suffered a serious brain injury in a motor vehicle accident.

He applied for a non-earner benefit, which the insurer disputed.

The arbitrator found that the applicant suffered a complete inability to carry on a normal life immediately following the accident, as his participation in activities was tempered by the effects of medication and his injuries.

However, by September 2002, the applicant had ceased taking the medication, resumed his pre-accident social life, and demonstrated independence, returning to a trajectory consistent with his pre-accident potential.

The arbitrator awarded the non-earner benefit for the period from September 18, 2001, to August 31, 2002, along with interest on overdue payments.

The insurer appealed an arbitration order regarding the calculation of income replacement benefits (IRBs), interest, and a special award under the SABS-1994.

The Director's Delegate held that the 75% deduction rate for post-accident income under s. 10(4) applies only to a single 26-week period, reversing the arbitrator's application of the lower rate to multiple jobs.

The Delegate upheld the finding that a lump sum lay-off payment was termination pay excluded from income under s. 87.

The Delegate reversed the interest award, finding interest was only payable from 14 days after the insured requested mediation, due to his four-year delay in seeking reinstatement of benefits.

Finally, the Delegate upheld a 15% special award, finding the insurer unreasonably relied on a deficient ergonomist report to terminate benefits.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them, relying on an ergonomist's report.

The applicant applied for arbitration, arguing he remained substantially unable to perform the essential tasks of his pre-accident job as a machine operator due to a shoulder injury and a traumatic brain injury.

The arbitrator found the ergonomist's report fundamentally flawed and accepted the evidence of the applicant's experts and an orthopaedic specialist retained by the insurer.

The arbitrator concluded the applicant was entitled to ongoing income replacement benefits, subject to deductions for post-accident earnings, and ordered a 15% special award against the insurer for unreasonably withholding benefits.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits.

The parties agreed on the quantum of his employment income but disputed the amount of his self-employment income from home renovations.

The applicant claimed his memory of the self-employment work was affected by a head injury sustained in the accident.

The arbitrator found that the applicant failed to provide reliable evidence or documentation to prove the amount of self-employment income he earned in the 52 weeks before the accident.

The arbitrator concluded that the applicant's Income Replacement Benefit should be calculated based solely on his employment income at the agreed rate of $81.30 per week.