Dr. Zakzanis

The plaintiff, D.S., brought a motion for default judgment against the defendant, Louis Omer Quesnelle, for damages arising from intentional torts of assault, sexual assault, and sexual interference committed when the plaintiff was a child.

The defendant had been criminally convicted for these acts.

The court found the defendant liable, ruling that the criminal convictions constituted proof of the intentional torts and that no limitation period applied.

The court awarded the plaintiff $400,000 in general damages and $1,533,416 in economic damages for past and future loss of earning capacity, but declined to award punitive damages given the defendant's prior penitentiary sentence.

The insurer appealed an arbitrator's decision finding the respondent catastrophically impaired following a motor vehicle accident.

The insurer argued the arbitrator erred in law by allowing the respondent to file expert reports after the hearing commenced and by misapplying the AMA Guides in assessing whole person impairment and mental/behavioral disorders.

The Director's Delegate dismissed the appeal, finding no error of law in the arbitrator's procedural rulings under Rule 39 of the Dispute Resolution Practice Code, as the insurer had first filed late reports.

The Delegate also upheld the arbitrator's substantive findings, concluding they were based on reasonable assessments of expert credibility and evidence.

Following a determination that the applicant was catastrophically impaired as a result of a motor vehicle accident, the applicant sought her expenses for the arbitration hearing.

The arbitrator found the applicant was entirely successful and entitled to her expenses.

After reviewing the claimed fees and disbursements, including expert witness fees and preparation time, the arbitrator awarded the applicant $51,679.28 inclusive of fees, disbursements, and HST.

The applicant sought a special award under s. 282(10) of the Insurance Act, arguing the insurer unreasonably withheld and delayed payment of income replacement benefits (IRB) and catastrophic impairment benefits following a motor vehicle accident.

The arbitrator found that while a special award could not be based solely on the catastrophic impairment determination, the insurer's handling of the IRB claim justified an award.

The insurer had relied on incomplete and inconclusive reports to terminate benefits, ignoring a multitude of conclusive medical reports, including from its own assessors, that supported the applicant's inability to work.

The arbitrator concluded this demonstrated stubborn, inflexible, and unreasonable behaviour, and ordered the insurer to pay a special award of 35% of the owing IRB total, plus 2% compound interest.

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 insurer appealed an Arbitrator's decision finding that the insured sustained a catastrophic impairment due to a mental or behavioural disorder.

The insurer argued the Arbitrator erred in law by applying a quantitative formula to the definition of marked impairment and misapprehended the evidence.

The Director's Delegate dismissed the appeal, holding that the Arbitrator properly applied a qualitative and contextual assessment of the insured's adaptability domain.

The Delegate further noted that the appeal process is restricted to questions of law, and it is not the Delegate's role to reweigh the evidence or substitute findings of fact.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, including a determination of catastrophic impairment, income replacement benefits, and attendant care benefits.

The insurer argued the applicant's low Glasgow Coma Scale score was due to a pre-accident drug overdose and high blood sugar, not a brain injury from the accident.

The arbitrator rejected the insurer's theory, finding the applicant sustained a catastrophic impairment due to a traumatic brain injury.

The arbitrator also awarded ongoing income replacement benefits and attendant care benefits, but declined to order a special award against the insurer.

The insurer brought a motion to stay the arbitration proceedings until the insured attended in-person insurer examinations regarding catastrophic impairment.

The insured had delayed providing his responding medical reports for three years and then refused to attend further insurer examinations, arguing they were intrusive and unnecessary.

The arbitrator found that the insurer's request was reasonable and necessary given the passage of time and the overarching principle of procedural fairness.

The arbitration was stayed until the insured attends the examinations.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits, claiming she sustained a catastrophic impairment due to a mental or behavioural disorder.

The sole issue was whether she suffered a marked impairment in the adaptability domain.

The arbitrator preferred the evidence of the applicant's experts, finding that the insurer's psychiatric assessment was based on incomplete facts.

The arbitrator concluded that the applicant's major depression and cognitive difficulties significantly impeded her ability to maintain activities of daily living, continue social relationships, and adapt to stressful circumstances, including parenting and employment.

The applicant was found to be catastrophically impaired within the meaning of the Schedule.

The Insurer brought a motion for an order staying the arbitration proceedings pending the Applicant's attendance at a new psychiatric examination with Dr. Wiesenthal.

The Applicant had previously attended insurer examinations, but subsequently submitted a new OCF-19 claiming catastrophic impairment under Criterion 8 (mental or behavioural disorder), supported by new assessments.

The Arbitrator found that the proposed examination was reasonably necessary given the new information and the passage of time.

The Arbitrator ordered that if the Applicant failed to attend the examination by March 1, 2016, the proceedings would be stayed.

The applicant, a pedestrian struck by a motor vehicle, sustained a traumatic brain injury and multiple skull fractures.

She applied for catastrophic impairment designation under the Statutory Accident Benefits Schedule based on a Glasgow Outcome Scale (GOS) score of 3 (severe disability).

The insurer denied the designation, relying on a neurologist who found no physical neurological deficits.

The arbitrator rejected the insurer's narrow interpretation of the GOS, preferring the applicant's physiatrist who considered cognitive and behavioural impairments that rendered the applicant dependent on daily support.

The arbitrator found the applicant catastrophically impaired, awarded past and ongoing attendant care benefits for services provided by her husband, approved most of the disputed medical and rehabilitation treatment plans, and held the insurer liable for a special award for unreasonably withholding benefits.

The offender pleaded guilty to impaired driving causing bodily harm after striking a parked utility vehicle while driving with a blood alcohol concentration more than double the legal limit.

The collision caused severe, life-altering injuries to a worker and injured three of the offender's passengers.

The offender also suffered a severe traumatic brain injury in the crash.

The Crown sought 15 months' imprisonment, while the defence sought a 90-day intermittent sentence due to the offender's medical condition.

The court balanced the need for denunciation and general deterrence with the mitigating factor of the offender's own severe injuries, sentencing him to 11 months' imprisonment and a two-year driving prohibition.

The defendant pleaded guilty to impaired driving causing bodily harm.

The Crown sought a fifteen-month jail sentence, while the defence sought an intermittent sentence of ninety days plus probation.

The court imposed an eleven-month jail sentence with a two-year driving prohibition.

The sentencing considered the serious injuries to the victim, including permanent disability and chronic pain, balanced against the defendant's own significant injuries from the collision, his guilty plea, community service, and remorse.

The court rejected the defence position that the defendant's medical condition warranted an intermittent sentence, finding that while medical factors could place the defendant lower in the sentencing range, they did not justify a fundamentally different outcome.

The applicant sought income replacement benefits following a motor vehicle accident, claiming she was unable to work as a bottle packer due to physical pain and depression.

The insurer denied the benefits, relying on independent medical examinations by a physiatrist and a neuropsychologist who found no physical or cognitive limitations preventing her from working, and suggested she was feigning impairment.

The arbitrator preferred the evidence of the insurer's assessors over the applicant's subjective complaints and her family physician's support, concluding that the applicant failed to prove on a balance of probabilities that she suffered a substantial inability to perform her employment duties.

The claim for income replacement benefits was dismissed.

The applicant was seriously injured in a motor vehicle accident and sought a determination that she sustained a catastrophic impairment due to a mental or behavioural disorder.

The insurer argued that her marked impairment was a manifestation of malingering or factitious disorder, pointing to an initial period of improvement followed by deterioration.

The arbitrator reviewed extensive medical and lay evidence, finding that the applicant's current presentation of severe depression, anxiety, and pain focus was a direct result of the accident.

The arbitrator rejected the insurer's allegations of malingering, noting the lack of pre-existing conditions and the consistency of the applicant's presentation over time.

The arbitrator concluded the applicant suffered a catastrophic impairment.