Dr. Notkin

The plaintiff brought a motion to conditionally strike the defendant's jury notice in a personal injury action arising from a 2008 motor vehicle accident.

The trial had previously resulted in a mistrial in January 2020 due to the plaintiff's health crisis.

Citing the ongoing COVID-19 pandemic and the resulting backlog of civil jury trials in Brampton, the plaintiff argued that further delay would cause prejudice, particularly regarding income loss limits and increasing statutory deductibles under the Insurance Act.

The court granted the motion, conditionally striking the jury notice to allow the trial to proceed before a judge alone if a jury trial could not be accommodated during the January 2022 sittings.

This costs endorsement addresses several pre-trial and mid-trial motions, as well as costs thrown away, following a mistrial declared due to the plaintiff's health crisis.

The court considered motions regarding venue transfer, exclusion of surveillance evidence, expert and non-party expert witnesses, and two motions for mistrial.

The court applied principles of costs following the event and the factors under Rule 57.01(1), and specifically addressed "costs thrown away" in the context of a mistrial not caused by fault but by the responsibility of a party due to an unforeseen health event.

The plaintiff was awarded costs for the surveillance and expert witness motions, while the defendant was awarded costs for their mistrial motion and substantial indemnity for costs thrown away.

The court reviewed a motion record concerning the proposed resolution of a minor’s Family Law Act claim arising from injuries to his mother in a motor vehicle accident.

The record revealed that the adult plaintiffs had settled their claims for $600,000, while the minor’s claim was effectively treated as having no value and no payment had been made by the tortfeasor.

Funds had instead been placed into investment vehicles by the litigation guardian from his own settlement without court approval, and part of the funds were paid to counsel.

The court held that the minor’s claim could not be treated as settled in the absence of full disclosure, expert evidence, and proper court approval.

The matter was referred to the Office of the Children’s Lawyer to investigate and advise regarding the proposed arrangement.

The applicant, an arborist, was injured in a motor vehicle accident and received income replacement benefits for almost three years before the insurer terminated them.

The applicant brought a motion for interim benefits pending the final arbitration hearing.

The arbitrator reviewed the medical evidence, preferring the reports of the applicant's treating physicians over the insurer's psychiatric expert, whose report was found to be biased and focused inappropriately on credibility rather than medical opinion.

Finding that the applicant's case was not frivolous and that he faced financial hardship, the arbitrator ordered the insurer to pay interim income replacement benefits of $600 per week, less deductions for Canada Pension Plan disability payments.

The applicant was injured in two motor vehicle accidents in 1995 and sought statutory accident benefits, including caregiver benefits, housekeeping expenses, and medical/rehabilitation costs.

The insurer terminated caregiver benefits in 1996 based on surveillance and medical assessments suggesting the applicant was exaggerating her symptoms.

The arbitrator dismissed the claim for ongoing caregiver benefits, finding the applicant's evidence unreliable and her limitations overstated.

However, the arbitrator partially granted the claims for housekeeping expenses, recognizing some ongoing impairment, and ordered the insurer to pay outstanding medical, chiropractic, and transportation expenses.