John Lockhart

The applicant sought Income Replacement Benefits (IRBs) following two separate motor vehicle accidents.

The insurer denied the benefits and the applicant applied to the Licence Appeal Tribunal for dispute resolution.

The insurer brought a preliminary issue hearing arguing the applications were barred by the two-year limitation period.

The Tribunal found that the insurer had provided clear and unequivocal denials of the IRBs, along with the required dispute resolution options, more than two years before the applications were filed.

The Tribunal declined to extend the limitation period, finding no reasonable grounds to do so, and dismissed the applications as statute-barred.

The defendant retailer brought a motion under Rule 29.02 of the Rules of Civil Procedure seeking leave to issue a third party claim against a supplier approximately 15 months after delivering its defence and after the action had been set down for trial.

The court considered whether granting leave would prejudice the plaintiff, emphasizing that the rule requires leave to be granted unless the plaintiff would be prejudiced.

The court held that the relevant test is simple prejudice, not undue prejudice, and that delay may constitute prejudice, particularly where eyewitness testimony is involved and the trial is imminent.

Given the advanced stage of the proceeding, the absence of any explanation for the defendant’s delay, the weak merit of the proposed third party claim, and the likelihood that adding the third party would delay trial by at least eight months, the court found that the plaintiff would be prejudiced.

The motion was therefore dismissed.

The plaintiff brought a motion for summary judgment for unpaid invoices for aluminum products supplied to the defendant.

The defendant did not dispute the debt but claimed a right of set-off based on an alleged joint venture agreement with the plaintiff regarding a municipal contract.

The court found that the conflicting evidence regarding the set-off agreement constituted a genuine issue for trial that could not be resolved on the affidavit evidence.

The motion for summary judgment was dismissed.

Following a decision denying the insured's claim for income replacement benefits, the insurer sought to recover its expenses.

The arbitrator assessed the insurer's bill of costs, reducing the claimed legal fees by applying a 2.5 to 1 ratio of preparation to hearing time and deducting time spent on an ill-founded medical argument.

The arbitrator also disallowed disbursements for official examiner fees (transcripts) and the attendance fee of the insurer's medical expert.

The insurer was awarded $15,750 in legal fees and $7,440.21 in disbursements.

The applicant was involved in three motor vehicle accidents in 2001 and sought income replacement benefits beyond October 6, 2002, claiming he was unable to return to his pre-accident job due to chronic pain and psychological problems.

The insurer terminated benefits based on multiple disability assessments concluding he was capable of working.

The arbitrator found that while the accidents contributed to his complaints, the applicant failed to prove he suffered a substantial inability to perform the essential tasks of his pre-accident employment.

The arbitrator preferred the evidence of the disability assessors over the applicant's treating physicians and experts, noting weaknesses in the latter's opinions and the fact that the applicant had successfully held other jobs post-accident.

The application for ongoing benefits and a special award was dismissed.

The insurer renewed a request to impose terms and conditions on an adjournment that had been granted to the applicant ten months prior.

The insurer sought to make the hearing peremptory to the applicant, suspend interest payable, prohibit new medical evidence, and bind over witnesses.

The arbitrator dismissed the request, finding no reasonable explanation for the ten-month delay in seeking the terms.

Furthermore, the arbitrator noted that even if the request had been timely, most of the requested terms would not have been granted, as the applicant had sought the adjournment promptly upon retaining new counsel and restricting medical evidence would unfairly prejudice his ongoing claim for income replacement benefits.

The applicant was injured in a motor vehicle accident and sought ongoing income replacement benefits.

Less than three weeks before the arbitration hearing, the insurer requested that the applicant attend an insurer's medical examination (IE) with an orthopaedic surgeon in Toronto.

The applicant, who lived in Port Dover, refused to attend on short notice.

The arbitrator held that the insurer's request was unreasonable, finding that the insurer had delayed requesting the IE for over five years without adequate justification.

The arbitrator concluded that allowing the late request would amount to trial brinkmanship and unfairly prejudice the applicant by likely necessitating an adjournment of the hearing.