John Michael James Bray

The applicant sought post-104-week income replacement benefits following a motor vehicle accident that resulted in a severe right ankle fracture.

The respondent terminated benefits, arguing the applicant could work in alternative sedentary roles such as a cashier or telemarketer.

The Tribunal applied the complete inability test and found the proposed alternative occupations were not reasonably suitable due to the applicant's physical limitations, lack of computer skills, and the substantial retraining that would be required.

The Tribunal ordered the respondent to pay the income replacement benefits with interest, but declined to order an award as the applicant provided no submissions on that issue.

The applicant, an intercity bus driver, was injured in a motor vehicle accident and sought post-104 income replacement benefits (IRBs).

The respondent denied the benefits, arguing the applicant's return to part-time work as a mail courier demonstrated she did not suffer a complete inability to engage in suitable employment.

The Tribunal found that the applicant's cognitive decline, photophobia, and reduced stamina rendered her unable to perform the highly responsible duties of an intercity bus driver.

Relying on the applicant's recent neurological and neuropsychological assessments, the Tribunal concluded her condition had deteriorated over time and she met the post-104 test as of September 27, 2023.

The applicant was awarded IRBs from that date onward, plus interest.

This is a costs decision following a personal injury trial where the jury found the Abitong defendants 5% liable and awarded general damages of $10,000 to the main plaintiff.

After applying the statutory deductible, the plaintiffs received no recovery.

The Abitong defendants sought costs, having made an offer to settle by dismissal without costs.

The court awarded the Abitong defendants $175,000 in all-inclusive costs on a partial indemnity basis.

The court considered factors under Rule 57, including the result achieved, complexity, and proportionality.

It addressed the plaintiffs' objections regarding trial length due to defence counsel's conduct, excessive time claims, high disbursements, and the use of in-house counsel, affirming that costs for salaried counsel should be assessed as if independent outside counsel were retained.

During a trial, the plaintiffs sought a mid-trial ruling to prevent the defendants from asserting the defence of inevitable or unavoidable accident, arguing it was not specifically pleaded as required by Rule 25.07(4) of the Rules of Civil Procedure.

The court ruled that a general denial of negligence in the statement of defence was sufficient to allow the defendants to raise the unavoidable accident defence, as there was no material difference in the legal test or onus, and the pleadings provided adequate notice to the plaintiffs.

The defendants brought a motion to compel the plaintiffs to produce an adverse costs insurance policy (ACP) for inspection under Rule 30.02(3) of the Rules of Civil Procedure.

The plaintiffs had disclosed the existence and amount of the coverage but refused to produce the policy itself.

The court dismissed the motion, distinguishing previous case law because the ACP in this case was a blanket policy held by the plaintiffs' law firm, not the plaintiffs themselves.

The court found that producing the law firm's policy raised issues of solicitor-client privilege and that the policy was not within the possession, control, or power of the plaintiffs.

Following the dismissal of the respondent's motion to strike, the successful applicant sought costs of $5,085.

The respondent argued for costs in the cause, citing the simplicity of the motion and the applicant's failure to comply with the Rules of Civil Procedure regarding costs outlines and bills of costs.

The court agreed with the respondent's criticisms of the applicant's materials and the disproportionate time claimed.

However, the court declined to order costs in the cause, instead fixing the applicant's costs at a reduced amount of $1,000 payable within 30 days.

The respondent club brought a motion seeking to strike the member’s application or, alternatively, convert the proceeding to an action on the basis that material facts were in dispute regarding events leading to disciplinary proceedings and expulsion from membership.

The applicant argued that the application concerned the procedural fairness of the club’s disciplinary process rather than the underlying factual dispute.

The court held that the central issue was whether the club complied with its constitution and principles of natural justice, a matter capable of determination through the application process.

Applying the proportionality principles endorsed in Hryniak v. Mauldin, the court found it premature to require a full trial.

The motion was dismissed and the application permitted to proceed.