Dr. Rathbone

The applicant, an intercity bus driver, was injured in a motor vehicle accident and sought post-104 income replacement benefits (IRBs).

The respondent denied the benefits, arguing the applicant's return to part-time work as a mail courier demonstrated she did not suffer a complete inability to engage in suitable employment.

The Tribunal found that the applicant's cognitive decline, photophobia, and reduced stamina rendered her unable to perform the highly responsible duties of an intercity bus driver.

Relying on the applicant's recent neurological and neuropsychological assessments, the Tribunal concluded her condition had deteriorated over time and she met the post-104 test as of September 27, 2023.

The applicant was awarded IRBs from that date onward, plus interest.

The applicant sought statutory accident benefits following a motor vehicle accident, disputing the respondent's denial of treatment plans for assistive devices, a neuropsychological assessment, and physiotherapy.

The Licence Appeal Tribunal found the applicant was entitled to a robot vacuum, miscellaneous assistive devices, and occupational therapy, but denied the costs associated with a hot tub.

The Tribunal also approved a psychological assessment and physiotherapy, finding them reasonable and necessary based on the medical evidence.

Furthermore, the Tribunal ordered the respondent to pay a special award of $440 under s. 10 of O. Reg. 664 for unreasonably denying the psychological assessment, along with interest on overdue benefits.

The applicant was injured in a motor vehicle accident and sought medical and rehabilitation benefits for assistive devices and laser foot therapy under the Statutory Accident Benefits Schedule.

The respondent denied the benefits, arguing they were not reasonable and necessary and were related to pre-existing conditions rather than the accident.

The Tribunal applied the 'but for' test for causation and found that the applicant failed to prove the requested treatments and devices were required due to accident-related impairments.

The Tribunal concluded the applicant's mobility and balance issues were pre-existing, and the foot numbness was related to prior chemotherapy.

The application was dismissed.

Following a 16-day jury trial where the plaintiff's claim against the police defendants was dismissed, the parties made written submissions on costs.

The defendants sought substantial indemnity costs of $296,602.70 based on an offer to settle and allegations of intentional torts against an officer.

The court declined to award substantial indemnity costs, finding the offer did not trigger such consequences and the allegations did not warrant them.

Costs were awarded to the defendants on a partial indemnity basis, fixed at $127,000 all-inclusive, after deductions for travel time and a second counsel.

The plaintiff, a class member in a class action arising from a 1999 VIA Rail train derailment, sought over $60 million in damages, primarily for past and future loss of income and future care costs.

The plaintiff claimed the accident caused severe, debilitating injuries that destroyed his highly lucrative consulting business in Poland and Eastern Europe.

The court found the plaintiff and many of his lay and medical witnesses lacked credibility, noting significant inconsistencies, lack of documentary evidence (such as tax returns and banking records), and evidence of extensive post-accident travel and business activities.

The court rejected the income loss and future care claims entirely, awarding only $50,000 in general damages for minor soft tissue injuries.

The plaintiff suffered a severe traumatic brain injury in a multi-vehicle highway collision.

He lost control of his vehicle after being cut off by an unidentified driver, struck the median, and was subsequently T-boned by the defendant's vehicle.

The court found the unidentified driver 70% liable and the defendant 30% liable for following too closely.

The plaintiff was awarded over $3.2 million in damages, primarily for future care costs.

The plaintiff's claim against his own insurer for unidentified motorist coverage was dismissed because the identified defendant was found partially liable.

Two personal injury appeals were heard together to determine the scope of Rule 53.03 of the Rules of Civil Procedure regarding expert witnesses.

The Court of Appeal held that Rule 53.03 does not apply to 'participant experts' (such as treating physicians) or 'non-party experts' who form opinions based on their observation of or participation in the events at issue, rather than being engaged by a party for the litigation.

In Westerhof, the trial judge's erroneous exclusion of such evidence warranted a new trial.

In McCallum, the trial judge correctly admitted the treating practitioners' opinion evidence.

The appellant was injured in a motor vehicle accident and sued her insurer for caregiver benefits and extra-contractual damages.

The trial judge dismissed the action, finding it was statute-barred because it was commenced more than two years after the insurer's clear refusal to pay benefits.

The trial judge also found the appellant failed to establish entitlement to caregiver benefits beyond the 104-week period and dismissed her claims for bad faith and mental distress.

The Court of Appeal upheld the trial judge's findings, including his evidentiary ruling that medical reports in a document brief not referred to by witnesses were inadmissible for the truth of their contents.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiff's action for statutory accident benefits, arguing it was statute-barred because the plaintiff failed to mediate her claim and failed to return settlement funds prior to commencing the action.

The plaintiff brought a cross-motion for partial summary judgment for ongoing income replacement benefits.

The court granted the defendant's motion, finding that the failure to mediate and return the settlement funds deprived the court of jurisdiction.

The plaintiff's cross-motion was dismissed on the merits due to contradictory evidence regarding her disability.

The appellant appealed the dismissal of his claim for damages arising from a motor vehicle accident.

At trial, the judge excluded opinion evidence from several of the appellant's treating professionals and medical assessors because they had not complied with the expert report requirements of Rule 53.03.

The Divisional Court upheld the trial judge's rulings, confirming that the application of Rule 53.03 depends on the nature of the evidence (opinion vs. factual) rather than the role of the witness (treating professional vs. litigation expert).

The court held that any witness seeking to provide expert opinion evidence must comply with Rule 53.03.

The plaintiff was involved in a rear-end motor vehicle accident and claimed damages for chronic pain and psychological impairments.

Following a nine-day jury trial, the defendant brought a threshold motion arguing the plaintiff's injuries did not meet the statutory requirement of a permanent serious impairment under the Insurance Act.

The court reviewed extensive medical evidence and found the plaintiff lacked credibility, having concealed her pre-accident medical history and exaggerated her symptoms.

The court concluded the plaintiff failed to establish on a balance of probabilities that her injuries were permanent, noting she had voluntarily stopped treatment and had significant pre-existing conditions.

The defendant's motion was granted and the plaintiff's action was dismissed.

The plaintiff brought an action against her disability insurer for long-term disability benefits and aggravated and punitive damages following a motor vehicle accident.

The insurer had terminated benefits after the plaintiff returned to work on a graduated basis and resumed her full salary.

The court dismissed the action, finding that the plaintiff failed to meet the policy's definition of total disability for both her 'own occupation' during the initial 24-month period and 'any occupation' thereafter, as she had maintained employment.

Furthermore, the group insurance policy had been cancelled by the employer before any subsequent claim was initiated, and there was no evidence of bad faith by the insurer.

The defendant brought a motion seeking an order requiring the plaintiff to attend a further defence medical examination by a neurologist regarding Bell’s Palsy allegedly arising from a motor vehicle accident.

The plaintiff opposed the request, arguing that a second defence medical was unnecessary and would delay the scheduled pre-trial and trial.

The court considered the governing principles under Rule 33 and the Courts of Justice Act concerning further medical examinations and emphasized fairness and the need for each party to present appropriate expert evidence.

The court found that the defendant had no prior notice that Bell’s Palsy would be advanced as a causally related injury until a late-served medical report.

In the circumstances, fairness required permitting the defence an opportunity to assess the condition through a further examination.

The applicant, an 81-year-old man, was run over by his own vehicle, sustaining orthopaedic injuries.

He subsequently developed significant cognitive impairments.

The insurer denied catastrophic impairment benefits, arguing the cognitive decline was caused by a pre-existing subdural haematoma rather than the accident.

The arbitrator preferred the applicant's medical evidence, finding that the accident likely caused a minor head trauma that, combined with the pre-existing haematoma, resulted in brain edema and catastrophic impairment.

The applicant was awarded ongoing attendant care and housekeeping benefits.