Dr. Remus

3 total

SW

Late municipal notice barred the action absent proof of actual incapacity.

The appellant municipality appealed a trial judgment in a sidewalk slip-and-fall action.

The court held that s. 47 of the Limitations Act applies to the seven-day notice requirement in s. 284(5) of the Municipal Act, but only where the plaintiff demonstrates actual incapacity amounting to being of unsound mind.

A debilitating condition, pain, medication, or failure to turn one's mind to legal rights is insufficient absent proof that the plaintiff lacked the capacity to consider, investigate, understand advice about, and direct steps to protect the claim.

Although the trial judge's findings on gross negligence and the request to admit were not disturbed, the respondent failed to prove incapacity and the action was therefore barred for late notice.

No costs were ordered.

Bannon v. Thunder Bay (City), 2000 CanLII 5708 (ON CA)

orthopedic surgery · Retained by Respondent

MS

Mark Sones

6 cases1992–2002

SN

Susan Naylor

OFSCDRS0 cases1991–2001

OFSCDRSFeb 12, 1997

Appeal of arbitration order denying weekly income benefits dismissed as arbitrator's findings were supported by evidence.

The appellant appealed an arbitration order denying her additional weekly income benefits following a motor vehicle accident.

The arbitrator had found that the appellant was not substantially unable to perform the essential tasks of her pre-accident employment, relying on a Functional Capacities Assessment and the opinions of several medical specialists.

On appeal, the Director's Delegate held that the arbitrator's findings were supported by the evidence and declined to interfere with his assessment of the medical reports and witness credibility.

The appeal was dismissed, and no appeal expenses were awarded.

Grazyna A. Pyrz v. Continental Insurance Company, 1997 ONICDRG 32

Orthopaedic specialist · orthopaedics · Retained by Applicant

IB

Ian M. Boundy

12 cases1994–2002

HB

Harry P. Brown

31 cases1991–2016

AS

Asfaw Seife

OFSCDRS0 cases1992–2001

OFSCDRSJan 24, 1996

Claim for ongoing weekly income benefits dismissed as applicant failed to prove substantial inability to work.

The applicant was injured in a motor vehicle accident and received weekly income benefits until the insurer terminated them.

She applied for arbitration, claiming a substantial inability to perform the essential tasks of her pre-accident employment as a cook.

The arbitrator reviewed medical evidence, including functional capacity assessments and expert reports, which indicated she was capable of returning to work with minor restrictions.

Finding the applicant's testimony regarding her limitations lacked credibility and was inconsistent with her activities, the arbitrator concluded she did not suffer a substantial inability to perform her essential tasks and dismissed the claim for further benefits, though awarded her arbitration expenses.