Dr. Kaplan

Following a successful trial in an accident benefits dispute, the parties were unable to agree on the quantum of trial costs after the Court of Appeal permitted submissions on the issue.

The plaintiff sought nearly $297,000 in legal fees plus significant disbursements, including expert accounts with high compound interest.

The court held that the interest component of the damages under the Statutory Accident Benefits Schedule did not justify treating the litigation as a $500,000 case for costs purposes.

The hourly rates claimed by plaintiff’s counsel were reduced and significant reductions were made to the claimed fees and certain disbursements.

The court fixed partial indemnity fees at $170,000 plus GST and disallowed interest claimed on expert disbursements.

The appellant was injured in a motor vehicle accident and suffered a brain impairment.

His initial Glasgow Coma Score (GCS) was 3 out of 15, but improved to 14 out of 15 shortly after arriving at the hospital.

The trial judge ruled that the appellant did not suffer a catastrophic impairment because his GCS scores improved.

The Court of Appeal allowed the appeal, holding that the statutory definition of catastrophic impairment under O. Reg. 461/96 only requires a single GCS score of 9 or less within a reasonable time following the accident, provided there is a brain impairment.

The fact that subsequent scores were higher is irrelevant.

The applicant was injured in a motor vehicle accident and received statutory accident benefits from the insurer.

The insurer subsequently terminated his weekly income replacement benefits.

The arbitrator found that the insurer unreasonably withheld benefits by ignoring overwhelming medical evidence of the applicant's ongoing cognitive impairment and relying on flawed reports that supported termination.

The arbitrator characterized the insurer's conduct as wilful blindness.

The applicant was awarded $64,177 in arrears of income replacement benefits, $48,096 in interest, a special award of $39,295 under s. 282(10) of the Insurance Act, and $42,908 in arbitration expenses.