Dr. Waisman

The appellant appealed a Licence Appeal Tribunal decision that found she was not catastrophically impaired following a motor vehicle accident.

The Divisional Court allowed the appeal, finding the Tribunal breached procedural fairness in three ways: relying on the untested evidence of the respondent's expert who did not re-attend for cross-examination, deciding the issue of causation without notice when it was not in dispute, and relying on documents not in evidence that the appellant had no opportunity to address.

The matter was remitted to the Tribunal for a new hearing.

The insurer appealed a Licence Appeal Tribunal decision finding that the insured's claim for income replacement benefits was not statute-barred, as the termination letter was not clear and unequivocal.

The insured cross-appealed the dismissal of her claim for post-104 week income replacement benefits, arguing the adjudicator failed to consider whether alternative employment was comparable in status and reward.

The Divisional Court dismissed both appeals, holding that the limitation issue was a question of mixed fact and law not subject to appeal, and that the post-104 test under the Schedule does not require alternative employment to be comparable in status and reward.

The appellant insurer appealed a Licence Appeal Tribunal reconsideration decision that upheld a finding that the respondent was catastrophically impaired and entitled to non-earner benefits following a motor vehicle accident.

The Divisional Court dismissed the appeal, finding that the appellant failed to identify any extricable error of law in the adjudicator's assessment of the medical evidence and whole person impairment ratings.

The Court also rejected the appellant's argument that the adjudicator lacked jurisdiction to hear the reconsideration request as a single member of the original two-member panel, noting that the Tribunal's rules permit such a procedure.

The defendants brought a motion to compel the plaintiff to attend a defence medical examination with a neurologist in Toronto.

The plaintiff opposed the location, providing uncontroverted medical evidence from her treating physician and psychologist that she could not tolerate car travel longer than 30 minutes due to her injuries from a skid steer accident.

The court dismissed the motion, finding that while defendants have a prima facie right to choose their medical expert, this right is not unfettered when it compromises the plaintiff's well-being.

The defendants were granted leave to arrange an examination within a 30-minute drive of the plaintiff's residence.

The defendants brought a motion to compel the plaintiff to attend and complete a defence neuropsychological examination.

The plaintiff, who suffered catastrophic impairment in a motor vehicle accident, had attempted the assessment on three occasions but was unable to complete it due to severe headaches, fatigue, and psychological distress.

The court dismissed the motion, finding that the plaintiff was not malingering and that compelling further testing would be futile and pose an undue risk of self-harm.

The court also adjourned the pre-trial to allow the defendants time to review newly filed expert reports.

The appellant appealed a jury's damages award following a motor vehicle accident, arguing the awards for loss of income and future care were inordinately low and that the trial judge erred by failing to strike the jury after a student of the respondent's counsel had lunch with two jurors.

The Divisional Court dismissed the appeal, finding there was sufficient evidence for the jury to disbelieve the appellant's claimed inability to work and to accept alternative, less costly future care options.

The court also held that the trial judge did not err in failing to strike the jury, as the appellant had been offered a mistrial but explicitly opted to proceed with the same jury.

The appellant appealed a disposition of the Ontario Review Board ordering her detention in a minimum security facility.

She sought an absolute discharge or unsupervised community access.

The Court of Appeal dismissed the appeal, finding the appellant posed a danger to the public and that the disposition was the least onerous and least restrictive option.

Fresh evidence regarding the appellant's absence without leave and refusal to take medication was admitted but ultimately supported the Board's decision.

The accused was found unfit to stand trial and the hearing judge issued a treatment order under s. 672.58 of the Criminal Code, directing that he be taken forthwith to a designated hospital.

The hospital appealed, arguing that it had not consented to the order as required by s. 672.62 because no bed was immediately available.

The Court of Appeal allowed the appeal, finding that the hospital's consent is a mandatory precondition that includes having the capacity to safely admit the patient.

The Court also held that the consent requirement does not violate s. 7 of the Charter, as it accords with the principles of fundamental justice by ensuring treatment orders are executed safely and balancing the needs of the accused with broader societal and medical realities.