James V. Leone

The moving party brought a motion for leave to appeal a lower court decision.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the fixed amount of $5,000.

The Divisional Court dismissed the moving party's motion for leave to appeal a decision dated June 27, 2024.

Costs were awarded to the responding party in the amount of $5,000.00.

The applicant requested a reconsideration of a motion decision that dismissed their request to remove the respondent's counsel of record due to an alleged conflict of interest.

The applicant argued that the respondent's law firm previously represented a defendant in a related tort claim.

The Tribunal found no error in fact or law in the original decision, noting that the tort matter was dismissed years prior, the lawyer involved had left the firm, and there was no evidence that confidential information was shared.

The request for reconsideration was dismissed.

The respondent insurer requested a reconsideration of a decision finding the applicant sustained a catastrophic impairment and was entitled to attendant care benefits (ACBs) for services provided by his spouse.

The insurer argued the adjudicator erred by admitting opinion evidence on causation from a treating chiropractor who was not qualified as an expert, and by awarding ACBs for care provided by a family member.

The Associate Chair denied the reconsideration, holding that the chiropractor's evidence was admissible as a 'participant expert' under Westerhof, and that the spouse, a trained personal support worker and registered practical nurse, provided the attendant care services in the course of her profession.

The adjudicator's findings that the applicant promised to pay his spouse and required overnight supervision were reasonable and did not constitute significant errors of law or fact.

The appellant, a general surgeon, appealed a trial judgment finding him liable for medical negligence in the treatment of an 11-year-old patient who presented with abdominal pain.

The surgeon discharged the patient without ordering imaging or hospital admission, providing discharge instructions that the patient should only return if her condition worsened.

The patient's appendix subsequently ruptured, causing significant bowel damage.

The trial judge found the surgeon breached the standard of care in both his assessment and discharge instructions, and that causation was established.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's findings on standard of care or causation.

The court also addressed the inordinate delay in releasing reasons but concluded it did not impede fair adjudication.

The applicant was injured in a motor vehicle accident and sought a determination of catastrophic impairment, along with attendant care benefits and various medical and rehabilitation benefits.

The Tribunal found that the applicant sustained a catastrophic impairment, preferring the evidence of the applicant's expert who assigned a 64% physical impairment rating over the respondent's expert.

The Tribunal awarded attendant care benefits of $3,704.91 per month from the date the assessment forms were submitted, but denied retroactive benefits.

The Tribunal also awarded case management services but denied other disputed treatment plans due to late submission or lack of evidence.

The applicant was injured in a motor vehicle accident when he was struck by a minivan while examining his truck on the side of the road.

He applied for statutory accident benefits, claiming he sustained a catastrophic impairment.

The insurer denied the claim, arguing that the applicant's impairments were unrateable due to inconsistent test results and symptom magnification.

The arbitrator preferred the evidence of the applicant's experts, finding that the use of the Gait Derangement Table was appropriate for rating his physical impairments and that his psychological impairments were marked despite invalid psychometric testing.

The arbitrator concluded that the applicant met the definition of catastrophic impairment under both the 55% whole person impairment threshold and the marked mental or behavioural disorder threshold.

The applicant insurer sought a declaration that the respondent insured breached statutory conditions 4(1) and 1(1) of its automobile policy after an employee, who did not hold a valid driver's licence, was involved in an accident while driving a company van.

The insurer argued the insured failed to verify the employee's licence and failed to report a material change in risk.

The court dismissed the application, finding that the insured acted reasonably in assuming the employee was licensed, as he had driven his own vehicle to work for ten years and was not hired as a driver.

The court also found no material change in risk, as the employee's use of the company van was infrequent and not habitual.

The applicant was injured in a motor vehicle accident and sought a determination that she sustained a catastrophic impairment under the Statutory Accident Benefits Schedule.

The applicant relied on assessments indicating a 74% whole person impairment, while the insurer's assessors concluded she had a 31% combined impairment.

The arbitrator rejected the applicant's primary expert evidence, finding the assessor opined outside his expertise and acted as an advocate.

Preferring the insurer's experts and finding the applicant's evidence lacked credibility, the arbitrator concluded the applicant's combined physical and mental impairments resulted in a 28% whole person impairment.

The application for catastrophic impairment benefits was dismissed.

The applicant sought photocopying expenses in the amount of $8,341.43 following a successful arbitration for statutory accident benefits.

The insurer did not contest the invoices.

The arbitrator found it reasonable that significant photocopying was required given the large number of exhibits and medical experts.

However, the arbitrator declined to award $1,817.84 in expenses incurred between the date final written submissions were received and the date the decision on the merits was issued, as the applicant did not explain why significant photocopying was required during that period.

The insurer was ordered to pay $6,089.29 in photocopying expenses.

Following an arbitration hearing where the applicant was unsuccessful in claiming statutory accident benefits, the insurer sought its expenses of $13,330.90.

The arbitrator considered the criteria under the Expense Regulation, particularly whether a novel issue was raised.

Although the factual underpinnings of the novel issue were ultimately lacking, the arbitrator found that the applicant proceeded to arbitration primarily to resolve a novel issue regarding the calculation of income replacement benefits based on a full-time job and a job offer.

The arbitrator concluded that the proceeding was not frivolous or vexatious and declined to award expenses to the insurer.

Following an arbitration decision on the merits of a statutory accident benefits claim, the applicant sought expenses including expert witness fees, legal fees, and disbursements.

The arbitrator assessed the claimed amounts under the Insurance Act and the Dispute Resolution Practice Code.

The arbitrator awarded reduced amounts for expert witness preparation and attendance, approved an increased hourly rate of $125 for lead counsel based on experience and complexity, and applied a 3:1 ratio of preparation to hearing time for legal fees.

The issue of photocopying expenses was deferred to allow the parties to exchange supporting documentation.

The applicant sought to withdraw her application for arbitration regarding statutory accident benefits shortly before a scheduled pre-hearing conference.

The insurer opposed a withdrawal without conditions, requesting payment of its expenses, the $3,000 assessment fee, and an order precluding future applications on the same issues.

The arbitrator permitted the withdrawal without conditions, finding no evidence of abuse of process to justify ordering payment of the assessment fee or barring future applications.

However, the arbitrator ordered the applicant to pay the insurer's expenses fixed at $750 for the unnecessary costs incurred in preparing for the pre-hearing conference and responding to the withdrawal request.

The applicant sought statutory accident benefits and a special award following a motor vehicle accident.

The applicant failed to attend the arbitration hearing and had previously lost contact with his representative, who was removed from the record.

The arbitrator dismissed the application for arbitration due to the absence of any evidence tendered in support of the claims.

The applicant was ordered to pay the insurer's reasonable expenses in the amount of $1,800.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits, including income replacement, medical, and housekeeping benefits.

The insurer denied the claims.

At arbitration, the arbitrator found the applicant's testimony regarding his employment and job offers to be inconsistent and not credible, dismissing the claim for income replacement benefits.

The housekeeping claim was dismissed as it fell outside the two-year limitation period and lacked credible evidence.

The medical benefits claim for a work hardening program was dismissed based on the persuasive testimony of the insurer's expert chiropractor, who concluded the treatment was not reasonable or necessary.

All claims were dismissed.

Following a preliminary issue hearing where the applicant's claim for statutory accident benefits was dismissed as statute-barred, the insurer sought its expenses.

The arbitrator found that the insurer was entirely successful and that its conduct did not prolong or hinder the proceeding.

The applicant was ordered to pay the insurer's expenses, fixed at $3,474.36 based on the legal aid rate, as the insurer was not an 'insured person' entitled to the higher maximum hourly rate under the Dispute Resolution Practice Code.

The applicant was injured in a rear-end motor vehicle accident and sought statutory accident benefits for medical treatment, housekeeping, and an assessment.

The insurer denied the claims.

The arbitrator found that the applicant was entitled to medical benefits for two treatment plans, accepting evidence of ongoing objective signs of injury, but denied further treatment plans due to insufficient evidence of need.

The arbitrator also awarded a nominal housekeeping benefit of $5 per week for a two-month period, finding the applicant's claim of total inability to perform housekeeping for 15 months implausible.

The claim for the cost of a follow-up assessment was denied as no treatment plan was submitted for it.

The insurer was ordered to pay 50% of the applicant's arbitration expenses.

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

The insurer refused to pay the benefits, citing the applicant's failure to provide required information and medical reports indicating he did not suffer a substantial inability to engage in pre-accident activities.

The applicant applied for arbitration more than two years after the insurer's refusal.

The arbitrator held that the insurer's refusal was clear and unequivocal, and the applicant was precluded from proceeding to arbitration because the application was filed beyond the two-year limitation period set out in subsection 281(5) of the Insurance Act and subsection 51(1) of the Schedule.

The insurer brought a motion to add the Motor Vehicle Accident Claims Fund (MVAC) as a co-respondent or third party to an arbitration proceeding, arguing MVAC was responsible for any special award arising from its prior handling of the file.

The arbitrator dismissed the motion, finding no statutory jurisdiction under the Insurance Act to add an insurer to a proceeding over the applicant's objection.

The arbitrator also dismissed the insurer's motion to strike the applicant's claim for a special award, instead amending the issue to reflect the insurer's potential liability for both its own actions and those of MVAC.

The insurer was ordered to pay the legal expenses of both MVAC and the applicant.

The insurer sought expenses against the applicant and her former representative following an arbitration decision regarding statutory accident benefits.

A hearing was convened to determine whether the former representative should be held personally liable for expenses under section 282(11.2) of the Insurance Act.

During the hearing, the parties engaged in settlement discussions and reached an agreement on the expense issue.

On consent of the parties, the arbitrator dismissed the application for expenses.