Ian W. Furlong

The applicant, who suffered a catastrophic impairment including a leg amputation in a motor vehicle accident, sought $607,445 for home modifications to his mother's residence.

The insurer denied the benefit.

The Licence Appeal Tribunal found that the mother's residence did not qualify as the applicant's "existing home" under s. 16 of the Schedule, as evidence showed he lived with his stepfather prior to the accident.

Furthermore, the Tribunal held there is no authority under the Schedule to redirect home modification funds into a trust for a future home purchase.

The Tribunal also dismissed the insurer's preliminary motion to dismiss the application for the applicant's failure to attend an Examination Under Oath, noting the Schedule does not prescribe dismissal as a penalty for such non-compliance.

The claims for an award and interest were dismissed.

The Court of Appeal for Ontario dismissed an appeal by non-settling defendants challenging the approval of a Pierringer agreement in a multi-party motor vehicle accident case.

The court held that the agreement did not cause substantive prejudice to the non-settling defendants, as the Negligence Act places the risk of an insolvent or impecunious tortfeasor on the remaining tortfeasors, not the victim.

The court also declined to grant procedural orders in advance, leaving such matters to the trial judge.

The applicant was struck by a motor vehicle while riding his bicycle and sought a determination of catastrophic impairment under criteria 6 (brain injury) and 8 (mental or behavioural disorder) of the Statutory Accident Benefits Schedule.

The applicant relied heavily on a revised incident report from a paramedic indicating a depressed Glasgow Coma Scale score, which contradicted the original reports showing a perfect score.

The Tribunal found the revised report lacked credibility and rejected the expert opinions relying upon it.

Consequently, the Tribunal concluded the applicant failed to prove he sustained a brain injury or a resulting mental and behavioural disorder, and dismissed the application for catastrophic impairment, an award, interest, and costs.

The Public Guardian and Trustee, acting as litigation guardian for the plaintiff, brought a Rule 7 motion to approve a $1,180,000 settlement of the plaintiff's statutory accident benefits claims.

The plaintiff, who had been found to be a party under a disability, objected to the settlement and the involvement of the litigation guardian.

The court found the settlement to be eminently reasonable and in the plaintiff's best interests, noting her severe psychological decline and failure to comply with treatment.

The settlement was approved, with the bulk of the funds placed in a structured annuity.

Two Ontario residents injured in separate accidents outside Ontario involving an all-terrain vehicle (ATV) and a dirt bike sought statutory accident benefits (SABs) under their Ontario automobile insurance policies.

Both insurers denied coverage, arguing that the definition of "automobile" under Ontario law should be determined by the law of the jurisdiction where the accidents occurred (lex loci delicti).

The Court of Appeal held that Ontario law applies to the interpretation of Ontario contracts and statutes, and that the definition of "automobile" in the Insurance Act and Off-Road Vehicles Act applies uniformly regardless of where the accident occurs.

Both vehicles qualified as automobiles under the extended definition because they would have required insurance if operated in Ontario under the Off-Road Vehicles Act.

The court allowed the appeal of the insured and dismissed the appeal of the insurer.

The applicant requested a reconsideration of a decision finding he did not suffer a catastrophic impairment under the Glasgow Coma Scale following a motor vehicle accident.

The applicant argued the Tribunal erred by excluding video footage of a paramedic at the scene and by allowing the respondent's expert neurologist to give opinion evidence outside his report without permitting the applicant to recall his own expert.

The adjudicator dismissed the request, finding the video footage had limited probative value and would not have changed the result given the conflicting medical reports.

The adjudicator also found no error in allowing the respondent's expert to comment on inconsistencies in the reports, noting the applicant failed to demonstrate the evidence was false or misleading.

The applicant sought production of the respondent's adjuster's log notes from the date of a prior FSCO application to the date the current application was filed with the Tribunal.

The respondent claimed the notes were protected by litigation privilege.

The Tribunal found that while litigation was contemplated for some claims as of the FSCO application date, the respondent failed to establish that all subsequent log notes were created for the dominant purpose of litigation.

The Tribunal ordered the respondent to produce the log notes, subject to redactions for irrelevancy, solicitor-client privilege, and reserves, and to provide particulars for each redaction.

The plaintiff successfully defended a summary judgment motion brought by the City of Barrie, which sought to dismiss the claim due to late notice under the Municipal Act.

In this costs endorsement, the court considered the plaintiff's request for partial indemnity costs and the City's submission to reserve costs to the trial judge.

Citing the principle that costs may be reserved when issues raised on the motion remain live, the court found it just to reserve the costs of the motion to the trial judge, as the issue of prejudice to the City from late notice still needed to be determined at trial.

The applicant was struck by a motor vehicle while riding his bicycle and sought a determination of catastrophic impairment based on a Glasgow Coma Scale (GCS) score of 9 or less.

The adjudicator found that the paramedic's delayed report, which recorded a GCS of 8/15 three months after the accident, lacked credibility and reliability.

Preferring the respondent's expert neurological evidence, the adjudicator concluded the applicant did not sustain a catastrophic impairment.

The claim for an award under Ontario Regulation 664 was also dismissed as there was no evidence the insurer unreasonably withheld or delayed payments.

The applicant, an Ontario resident, was injured in an ATV accident in British Columbia.

He applied for statutory accident benefits in Ontario.

The insurer denied the claim on the basis that the ATV was not an 'automobile' under the Statutory Accident Benefits Schedule because it was not required to be insured in British Columbia.

The applicant sought judicial review of the FSCO Director's Delegate's decision upholding the denial.

The Divisional Court dismissed the application, finding it was reasonable to apply British Columbia legislation to determine whether the ATV required insurance, and thus the ATV did not meet the definition of an automobile.

The applicant sought a determination that her accident-related impairments met the definition of a catastrophic impairment under the Statutory Accident Benefits Schedule.

The Tribunal found that the applicant sustained a marked impairment in the areas of activities of daily living, concentration, persistence and pace, and adaptation due to a mental or behavioural disorder.

The Tribunal preferred the evidence of the applicant's experts, noting the applicant's pre-existing vulnerabilities and significant post-accident functional decompensation.

As the applicant met the catastrophic threshold under section 3(2)(f), the Tribunal did not need to determine whether she met the 55% whole person impairment threshold under section 3(2)(e).

The plaintiffs and defendant settled a motor vehicle accident claim for $732,835 just prior to trial, leaving costs to be determined by the court.

The plaintiffs sought partial indemnity costs of approximately $572,000, while the defendant proposed approximately $394,000.

The court noted that liability was clear from the outset, yet the defendant failed to admit liability and delayed making an offer to settle until two weeks before trial, unnecessarily increasing the plaintiffs' costs.

After adjusting for excessive hourly rates for students/clerks and some excessive preparation time, the court fixed the plaintiffs' partial indemnity costs at $310,000 plus HST for fees and $160,000 inclusive of HST for disbursements.

The appellant appealed a summary judgment dismissing her claim against herself for statutory vicarious liability as the owner of a vehicle involved in an accident.

The appellant was a passenger in her own vehicle driven by her daughter when the accident occurred in a private parking lot.

The motion judge dismissed the claim on the ground that the accident did not occur on a "highway" as defined in the Highway Traffic Act and therefore section 192(2) of the Act did not apply.

The appellant sought to introduce fresh evidence on appeal suggesting the accident occurred at a GO Station parking lot used by the general public.

The Court of Appeal dismissed the motion to admit fresh evidence and upheld the summary judgment dismissal.

The respondent was injured when her horse was spooked by an oncoming ATV, causing her to be thrown and trampled in a muddy ditch.

She claimed statutory accident benefits from the appellant insurer.

The arbitrator found the incident was an 'accident' under the SABS.

The insurer appealed, arguing the horse and mud were intervening acts and the dominant feature of the injuries.

The Director's Delegate dismissed the appeal, finding the ATV was being put to an ordinary use and its operation was the direct cause and dominant feature of the incident, as spooking a horse is an ordinary risk of motoring on a rural road.

The appellant, an Ontario resident, was injured when he fell off an ATV in British Columbia.

The ATV was owned by a BC resident and was not insured or required to be insured in BC.

The appellant claimed statutory accident benefits under his Ontario automobile policy, arguing the ATV should be considered an automobile under Ontario law.

The Director's Delegate dismissed the appeal, applying the territoriality principle to find that Ontario law regarding mandatory insurance does not apply to a vehicle owned and operated in British Columbia.

Therefore, the ATV did not meet the extended definition of an automobile, and the appellant was not involved in an 'accident' under the Statutory Accident Benefits Schedule.

The plaintiff sued the defendants for personal injuries sustained at a party.

The defendant McKellar's insurer appointed counsel to defend him under a reservation of rights, as the claim exceeded policy limits.

McKellar retained personal counsel for his over-limits exposure.

The insurer-appointed counsel negotiated a settlement within policy limits, which the plaintiff accepted.

McKellar's personal counsel objected to the settlement and brought a motion to be appointed co-counsel, seeking to have his legal fees paid from the settlement proceeds.

The court dismissed the motion, finding no divergence of interest between the insurer and the insured, and granted the plaintiff's motion for judgment in accordance with the settlement.

The plaintiffs moved to amend their statement of claim in a motor vehicle accident action.

While most proposed amendments were unopposed, the City of Ottawa objected to specific allegations of negligence against it, arguing they were prolix, repetitive, pleaded evidence, and constituted inappropriate boilerplate, especially given the advanced stage of litigation.

The court granted leave to amend in principle but required the plaintiffs to revise the contested paragraph to remove repetitive subparagraphs, specific pleading of evidence (such as the exact number of previous accidents), and inconsistent allegations unless clearly pleaded in the alternative.

The Master emphasized the need for certainty, precision, and sufficient particulars in pleadings.

Costs were awarded to the City of Ottawa.

The applicant was injured in an ATV accident in British Columbia and sought statutory accident benefits under his Ontario automobile insurance policy.

The insurer denied the claim on the basis that an ATV is not an 'automobile' under the SABS.

The arbitrator applied the lex loci delicti principle, finding that British Columbia law governed the incident.

Under British Columbia law, the ATV was not required to be insured under a motor vehicle liability policy.

Consequently, the ATV did not meet the definition of an automobile under the ordinary parlance test, and the incident was not an 'accident' under the SABS.

The application was dismissed.

The applicant was injured when she fell from and was trampled by her horse after it was spooked by an oncoming ATV and became stuck in a muddy ditch.

The insurer denied accident benefits, arguing the incident was not an 'accident' under the Schedule because the mud or an 'assault' by the horse broke the chain of causation.

The arbitrator applied the Chisholm and Greenhalgh tests, finding that the ATV was the active, efficient cause that set the events in motion.

The arbitrator concluded the incident was an accident, as the horse's reaction and the muddy ditch were normal risks associated with the ATV passing on a narrow rural road.

The plaintiff sought leave to appeal an order striking his statement of claim with leave to amend.

The claim sought damages for wrongful dismissal and mental distress but failed to plead an independent actionable wrong to support the mental distress claim, as required by established jurisprudence.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's order and awarding costs to the defendant on a partial indemnity basis.