Mr. Wollach

Following a jury trial in a motor vehicle accident action, the jury awarded damages including general damages, future housekeeping costs, and future care.

The defendant brought a threshold motion under s. 267.5 of the Insurance Act seeking dismissal of the plaintiff’s claim for general damages and certain future care expenses on the basis that the plaintiff had not proven a permanent serious impairment of an important bodily function as required by Ontario Regulation 381/03.

The court held that the trial judge determines the threshold issue independently of the jury’s verdict and is not bound by the jury’s factual findings.

The plaintiff’s expert evidence was rejected as lacking objectivity and failing to comply with the evidentiary requirements of the Regulation.

The court concluded the plaintiff failed to meet the statutory threshold and dismissed the claims for general damages and future medical rehabilitation expenses.

The parties appealed an arbitration order regarding the calculation of the claimant's loss of earning capacity benefits.

The claimant was a self-employed hairdresser at the time of the accident.

The Director of Arbitrations found that the Arbitrator erred by failing to convert the claimant's pre-accident earning capacity from gross to net income, as required by section 81 of the Statutory Accident Benefits Schedule.

The Director accepted the calculations provided by the insurer's accounting expert and recalculated the weekly benefits accordingly, reducing the amounts payable to the claimant.

The applicant, a self-employed excavating contractor, was injured in a motor vehicle accident and claimed statutory accident benefits.

The parties disputed the calculation of his weekly income benefits, specifically regarding which business expenses continued after the accident.

The arbitrator determined the applicant's pre-accident net income and added verifiable continuing expenses (depreciation, telephone, and motor vehicle fuel) to calculate the gross weekly income, resulting in a total entitlement of $54,535.32 up to the hearing date.

Because the insurer had already paid over $61,000, there was an overpayment.

The arbitrator ordered the applicant to repay $450, finding no fraud or error for the remainder of the overpayment.

The applicant's claims for a special award were dismissed, but he was awarded his arbitration expenses.