Dr. Karen Wiseman

The applicant sought judicial review of a decision by the Director's Delegate, which overturned an Arbitrator's finding that he suffered a catastrophic impairment as a result of a 2013 motor vehicle accident.

The applicant had previously been involved in two accidents in 2002.

The Director's Delegate found that the applicant was already catastrophically impaired before the 2013 accident and that the Arbitrator erred by applying the material contribution test instead of the 'but for' test.

The Divisional Court granted the judicial review, finding the Director's Delegate's decision unreasonable because it relied on an unestablished fact that the applicant was already catastrophically impaired.

The Court also held that the Arbitrator's use of the material contribution test was appropriate in circumstances involving multiple accidents where it is impossible to determine which accident caused the impairment.

The plaintiff appealed an Associate Judge's order requiring her to attend three independent medical examinations, re-attend discovery, and restricting her counsel from communicating with defence experts.

The defendants cross-appealed the denial of a pleading amendment alleging the plaintiff was a 'sophisticated litigant' who might exaggerate her claims.

The Superior Court upheld the denial of the pleading amendment, the discovery re-attendance, and the neuropsychological examination.

However, the court set aside the orders for orthopedic and vocational assessments due to insufficient evidence and lack of jurisdiction for the Associate Judge to order an assessment by a non-health practitioner.

The restriction on counsel communicating with defence experts was upheld but varied to expire once the expert report is completed.

The applicant sought a determination that he sustained a catastrophic impairment due to a psychological condition resulting from a 2014 motor vehicle accident.

The respondent insurer argued the applicant was malingering and that any impairment stemmed from a prior 2011 accident.

Despite evidence of the applicant deliberately frustrating the respondent's psychological assessments, the Tribunal preferred the evidence of the applicant's neuropsychiatrist, finding a marked deterioration in the applicant's mental health.

The Tribunal concluded the applicant suffered a Class 4 marked impairment in three spheres and that, but for the 2014 accident exacerbating his pre-existing condition, he would not have sustained a catastrophic impairment.

The applicant sought a Non-Earner Benefit following a motor vehicle accident, claiming physical and psychological impairments, including chronic pain, alcohol dependence, and personality changes, completely prevented her from carrying on her pre-accident life of renovating houses.

The Tribunal found that the applicant remained engaged in her renovation projects post-accident and that her psychological issues, including Alcohol Use Disorder and Cluster B personality traits, pre-existed the accident.

Applying the 'but for' test, the Tribunal concluded the accident was not a necessary cause of her ongoing impairments and she did not suffer a complete inability to carry on a normal life.

The application was dismissed.

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.