Zygmunt Gorski

Following a preliminary issue hearing where the insured's application for arbitration was dismissed on the basis that he failed to prove he was involved in an 'accident', the insurer sought its legal expenses and disbursements.

The arbitrator found that the insurer was the successful party and was entitled to its expenses.

The arbitrator awarded the insurer $9,839.20, which included legal fees, disbursements, and the maximum allowable amounts for its expert witness's preparation and attendance, noting that the insurer's expert evidence was preferred because the expert inspected both vehicles closer to the date of the incident.

The applicant claimed statutory accident benefits following an alleged motor vehicle collision.

The insurer denied the claim, arguing that the collision did not occur as reported or was staged.

After hearing evidence from the parties, the investigating police officer, and accident reconstruction experts, the arbitrator found significant inconsistencies between the physical evidence and the applicant's testimony.

The arbitrator accepted the insurer's expert evidence that the vehicles' damage and final resting positions were inconsistent with the reported collision.

The application was dismissed as the applicant failed to prove on a balance of probabilities that an 'accident' occurred.

The plaintiffs were riding a tandem bicycle downhill when they lost control, struck an embankment, and suffered severe injuries, resulting in the husband's death.

The trial judge found the defendant municipality entirely liable for the accident due to road disrepair and inadequate signage.

On appeal, the defendant argued the trial judge erred in admitting expert evidence beyond the expert's qualifications and in failing to find contributory negligence.

The Court of Appeal held that while the expert should not have testified on matters outside his expertise, the defendant suffered no prejudice.

However, the Court found the trial judge ignored evidence of the husband's excessive speed and failure to keep a proper lookout, and apportioned liability 60% to the defendant and 40% to the plaintiffs.