Dr. Tory Hoff

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 defendants brought a motion for leave to conduct a second psychiatric assessment of the plaintiff, despite the action having been set down for trial almost four years prior.

The plaintiff claimed severe psychological impairment from two motor vehicle accidents.

The defendants' psychiatrist had not assessed the plaintiff since 2015, and the plaintiff's experts recently delivered updated reports indicating her condition had worsened and she was permanently unemployable.

The court granted leave under Rule 48.04(1), applying a flexible approach focused on trial fairness.

The court also ordered the plaintiff to attend a limited one-hour in-person second psychiatric assessment, finding it necessary to level the playing field and avoid prejudice to the defendants.

The Applicant was injured in a motor vehicle accident in 2013 and sought statutory accident benefits from the Insurer, claiming he suffered a catastrophic impairment.

The Applicant had a history of severe pre-existing psychological and physical impairments from prior accidents in 2002.

The Insurer denied the catastrophic impairment designation and various medical benefits, arguing that any impairment was due to the pre-existing conditions.

The arbitrator found that the 2013 accident materially contributed to the Applicant's psychiatric condition, worsening his impairment to a Class 4 marked impairment in activities of daily living.

The arbitrator concluded the Applicant suffered a catastrophic impairment and awarded the disputed medical benefits and examination costs, finding them reasonable and necessary for pain relief and assessment.

The claim for a special award was dismissed, but the Insurer was ordered to pay the Applicant's arbitration expenses and interest on overdue benefits.

The defendant brought an urgent motion to compel the plaintiff to attend two independent medical examinations (physiatry and psychological) shortly before trial.

The plaintiff opposed the motion, arguing it was brought too late.

The court granted the request for the physiatry examination, finding that the plaintiff's late service of a physiatry expert report constituted a substantial change in circumstances warranting a responding report.

However, the court dismissed the request for a psychological examination, as the plaintiff had not served a psychological expert report and the defendant had long been aware of the psychological claims.

Costs of $3,000 were awarded to the plaintiff.

The insurer appealed an Arbitrator's decision finding that the claimant suffered a catastrophic impairment due to a mental or behavioural disorder and awarding ongoing attendant care and housekeeping benefits.

The Director's Delegate allowed the appeal, finding that the Arbitrator failed to give adequate reasons, reversed the burden of proof, and failed to fairly consider the evidence.

The medical evidence presented by the claimant did not address the criteria under the AMA Guides, and her uncorroborated evidence was insufficient to prove catastrophic impairment.

The Arbitrator's orders were revoked, and the claimant was ordered to repay interim benefits.