Dr. G.D. Gale

In a medical malpractice and conspiracy action, a defendant physician moved for summary judgment and to strike claims under Rules 20, 21.01(3)(d), and 25.11.

The court held that the conspiracy allegations required the forensic machinery of a trial and declined to apply the best-foot-forward principle on this record.

On the malpractice claim, the court found the existing anesthesiologist report insufficient on the general practitioner standard of care but concluded a treating physician was not categorically disqualified from providing qualifying opinion evidence.

The motion was made conditional on service of a compliant report within 30 days, failing which the action against the moving physician would be dismissed with costs.

The appellant appealed an arbitrator's decision dismissing his claims for income replacement benefits, housekeeping expenses, and medical and rehabilitation expenses following a 1997 motor vehicle accident.

The appellant argued that the insurer's failure to provide proper notice under sections 37 and 49 of the Schedule entitled him to automatic reinstatement of benefits, and that the arbitrator made numerous errors of fact and law, including ignoring medical evidence and demonstrating bias.

The Director's Delegate dismissed the appeal, holding that inadequate notice does not automatically entitle an insured to benefits, and that the arbitrator's findings of fact regarding the appellant's lack of credibility and failure to meet the disability tests were supported by the evidence.

The Delegate also found no reasonable apprehension of bias and affirmed that appeals under section 283(1) of the Insurance Act are restricted to questions of law.

The applicant was injured in a rear-end motor vehicle accident and received income replacement benefits until the insurer terminated them at the 104-week mark.

The insurer argued the applicant was capable of returning to work, relying on assessments suggesting symptom magnification and a lack of organic basis for his pain.

The arbitrator found the applicant credible and accepted medical evidence that he suffered from chronic pain syndrome, depression, and adjustment disorder as a result of the accident.

The arbitrator concluded that the combination of the applicant's physical and psychological impairments rendered him completely unable to engage in any employment for which he was reasonably suited by education, training, or experience.

The applicant was awarded ongoing income replacement benefits.

The applicant sought statutory accident benefits for rehabilitation and care services following a 1993 motor vehicle accident.

The insurer denied the claims, arguing the applicant's pervasive physical, cognitive, and psychological conditions were not caused by the accident.

The arbitrator dismissed the applicant's claims, finding she failed to prove on a balance of probabilities that the accident materially contributed to her impairments.

The arbitrator noted a complete absence of pre-accident medical records, relying solely on the applicant's unreliable self-reporting, and drew an adverse inference from her failure to call pre-accident treating physicians or lay witnesses to corroborate her pre-accident health and functional abilities.

The appellant appealed an order dismissing her personal injury action on a pre-trial motion under s. 266(3) of the Insurance Act.

The Court of Appeal held that the motions judge improperly disregarded uncontradicted affidavit and medical evidence concerning a significant deterioration in the appellant's condition in the 18 months preceding the motion.

Applying the appellate intervention principle for disregarded evidence, the onus framework under Chilman, and the three-step analysis from Meyer v. Bright, the court concluded that the record was capable of establishing a permanent serious impairment of an important bodily function caused by continuing physical injury.

Because the entire record was documentary and the respondents had not challenged the late medical evidence by cross-examination or responding evidence, the court set aside the order and dismissed the respondents' motion.

The appellant was awarded costs of the motion and the appeal.