Frank E. McNally

The appellant appealed a Licence Appeal Tribunal (LAT) decision denying his claim for catastrophic impairment benefits.

The LAT had found that the appellant's physician, Dr. Ofokansi, provided only a conclusory opinion on the OCF-19 form without supporting analysis or medical data.

The appellant argued the LAT should have considered the evidence of his psychologist, Dr. Reesor.

The Divisional Court dismissed the appeal, holding that section 45 of the Statutory Accident Benefits Schedule requires a catastrophic impairment assessment to be conducted by a physician.

Since the physician's assessment was entirely conclusory and entitled to no weight, the psychologist's evidence alone was insufficient to establish the claim.

The plaintiff brought a motion to strike the jury notice in her motor vehicle collision action, seeking to proceed to trial before a judge alone due to concerns about potential delays and prejudice (financial and mental health) related to the COVID-19 pandemic.

The court granted leave for the plaintiff to bring the motion but ultimately dismissed it.

The court found that the plaintiff's grounds, such as temporary jury selection bans, were no longer valid as COVID-19 restrictions had been lifted.

The court emphasized the substantive right to a jury trial and determined that the plaintiff's evidence regarding prejudice was insufficient or lacked concrete detail to justify overriding this right.

The court reserved costs to the trial judge and granted both parties leave to bring further motions if the pandemic circumstances change again.

The plaintiffs brought a motion to strike the defendant's jury notice due to trial delays caused by the COVID-19 pandemic.

The plaintiffs argued they would suffer prejudice from the delay itself, the impact on the plaintiff's mental health, and the financial erosion of her claim for economic loss.

The defendant argued the case involved chronic pain and credibility issues best suited for a jury, and that his litigation strategy relied on a jury trial.

The court found the plaintiffs established prejudice due to delay and financial erosion, which outweighed the defendant's broad assertions of prejudice.

The court conditionally struck the jury notice, ordering the trial to proceed before a judge alone on the adjourned date, but allowing for automatic reinstatement of the jury notice if the trial is further adjourned to a time when civil jury trials have resumed.

The plaintiffs brought a motion to strike the defendant's jury notice in a motor vehicle accident claim, arguing that the Covid-19 pandemic would indefinitely delay a jury trial.

The court granted leave to bring the motion, finding the pandemic constituted a substantial and unexpected change of circumstances.

However, the court dismissed the motion to strike the jury notice because the parties were not yet ready for trial.

Specifically, the defendant's psychiatric expert had not received all necessary raw data to complete his report, and a pre-trial conference remained outstanding.

The court vacated the upcoming trial dates and directed the matter to a trial management court.

The plaintiffs sought an order to dispense with service of a motion record, remove litigation guardians for adult children, and approve a minor's settlement following a motor vehicle accident.

The court dismissed the request to dispense with service due to lack of evidence and outlined several procedural deficiencies regarding the minor plaintiffs reaching the age of majority, the consent documentation, and the form of the draft order.

The substantive aspects of the motion were deferred pending resolution of these procedural issues.

The plaintiff was involved in a single-vehicle accident on Highway 417, allegedly caused by an unpaved bump.

He failed to provide the required 10-day statutory notice to the Ministry of Transportation under s. 33(4) of the Public Transportation and Highway Improvement Act, only serving a claim 30 months later.

The defendant moved for summary judgment.

The court found no genuine issue for trial, concluding the plaintiff lacked a reasonable excuse for the delay, particularly after retaining counsel, and failed to rebut the presumption of prejudice caused by the road being repaved before notice was given.

The action was dismissed.

The defendant in a motor vehicle accident action brought a motion to compel the plaintiff to produce the transcript of her examination for discovery from a separate action against her long-term disability insurer.

The plaintiff opposed, relying on the deemed undertaking rule.

The court granted the motion, finding that the transcript was relevant to the plaintiff's injuries and that the exception under Rule 30.1.01(6) applied, allowing the transcript to be used for the limited purpose of impeaching the plaintiff's testimony.

The defendants sought a nunc pro tunc order to issue a third party claim against a doctor and an unknown individual after the two-year limitation period had expired.

The plaintiffs consented, but the proposed third party doctor opposed the motion.

Applying the framework from CIBC v. Green, the court found that while the defendants met the red-line rule by filing their motion before the deadline, they failed to act diligently in pursuing the claim.

The court dismissed the motion, concluding that the defendants were the authors of their own misfortune and that the proposed third party would be prejudiced by the backdated order.

The plaintiffs sought partial indemnity costs following a six-week jury trial for personal injuries and Family Law Act claims, where a jury awarded damages of $141,500.

The defendant had made a nominal settlement offer of $7.

The court awarded partial indemnity fees of $159,249.90 plus HST and disbursements, rejecting the defendant's argument that costs should be proportionate to the amount recovered, particularly given the nominal settlement offer and the need to encourage genuine settlement efforts.

Following a jury trial for a motor vehicle accident, the court ruled on post-verdict issues including the statutory threshold and deductibles.

The court found the plaintiff met the threshold for permanent serious impairment due to a somatic symptom disorder.

However, the court held that the increased statutory deductibles enacted in August 2015 applied retrospectively, which reduced the jury's non-pecuniary and Family Law Act damage awards to zero.

After applying set-offs for statutory accident benefits, judgment was issued for the plaintiffs in the amount of $56,294.98.

The defendants brought a motion to compel the plaintiff to attend a further independent psychiatric examination.

The plaintiff had previously attended an examination, but due to an administrative error, was examined by the wrong doctor (the intended doctor's brother).

The plaintiff opposed the motion, arguing that a further examination was unnecessary and would cause him prejudice due to a real risk of harm, as he had a history of suicidal ideation and hospitalizations following previous assessments.

The court found that the further examination was necessary and fair, as the defendants had a right to an expert opinion from a specialist of their choice.

The court ordered the examination to proceed in Ottawa, with the condition that the plaintiff's treating psychiatrist be available immediately afterward to mitigate any risk of harm.

The respondent was sued after his son was injured while driving a go-kart on a private track.

The respondent sought coverage and a defence from his automobile insurer.

The insurer brought a motion to determine whether a go-kart is an 'automobile' under the standard Ontario automobile insurance contract.

The motion judge found that a go-kart is an automobile because it is capable of being driven on a highway.

The Court of Appeal allowed the insurer's appeal, holding that the proper question is whether the vehicle required motor vehicle insurance at the time and in the circumstances of the accident.

Because the go-kart was operated on a private track, it did not require insurance and was not an 'automobile' under the policy.