Frank E. Van Dyke

The applicant requested a reconsideration of a Licence Appeal Tribunal decision that denied her entitlement to an income replacement benefit (IRB) following a motor vehicle accident.

The applicant argued the Tribunal made a significant error of law or fact by requiring her medical experts to explicitly address the legal test for an IRB.

The adjudicator agreed, finding that the Tribunal misapprehended the evidence and improperly delegated the application of the legal test to the medical experts.

The request for reconsideration was granted and the matter was remitted to the original panel for redetermination.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits.

She initially elected to receive a non-earner benefit (NEB) but later sought to re-elect an income replacement benefit (IRB).

The Licence Appeal Tribunal held a preliminary hearing to determine if she could re-elect.

The Tribunal found that under section 35(3) of the Statutory Accident Benefits Schedule, an election of benefits is final unless the insured has sustained catastrophic injuries, which the applicant had not.

The Tribunal rejected the applicant's arguments that her election was invalid or that promissory estoppel applied due to alleged erroneous advice from an adjuster.

The respondent's request for costs was denied as the applicant's conduct was not unreasonable, frivolous, vexatious, or in bad faith.

The applicant filed a human rights application alleging discrimination in employment on the basis of disability and sex.

A Notice of Intent to Dismiss was issued because the application was filed more than one year after the last alleged incident.

The applicant's counsel explained the delay was due to the applicant attending to her mother's surgery.

The Tribunal found it was not plain and obvious that the delay was not incurred in good faith and allowed the application to proceed.

The insurer appealed a judgment for the insured in an action for benefits under a sickness and accident policy.

The trial judge instructed the jury that because the insurer had accepted the claim and made some payments, it bore the legal burden of proof to establish that the insured was not totally disabled.

The Court of Appeal found this instruction to be an error, holding that the insured bore the legal burden of proof.

However, the appeal was dismissed as the misdirection did not result in any substantial wrong or miscarriage of justice.

The plaintiffs brought an action for damages for personal injuries allegedly suffered on a Canadian Forces base.

The defendants successfully moved for summary judgment on the basis that the action was statute-barred by the six-month limitation period in s. 269(1) of the National Defence Act.

The plaintiffs appealed, arguing that the discoverability principle applied because the injured plaintiff had received erroneous advice from the Canadian Forces and his Pensions Advocate that he could not sue while his military pension claim was pending.

The Court of Appeal allowed the appeal, finding that the uncontradicted evidence of this erroneous advice raised a genuine issue for trial regarding the commencement of the limitation period.