Jonathan Adam Brian Schwartzman

The applicants were injured in a motorcycle accident and inadvertently applied for statutory accident benefits from their standard policy insurer rather than their enhanced policy insurer.

The enhanced policy insurer denied their subsequent claim, arguing the initial election was binding.

The Licence Appeal Tribunal found it had jurisdiction under section 129 of the Insurance Act to grant equitable relief.

Applying the test for relief from forfeiture, the Tribunal allowed the applicants to rescind their initial application and apply for the enhanced benefits, noting the innocent nature of the error and the consumer protection mandate of the Schedule.

The applicants were involved in a motorcycle accident and inadvertently applied for statutory accident benefits from their standard policy insurer (Economical) instead of their enhanced policy insurer (Heartland).

Heartland denied their subsequent claim, arguing the initial application to Economical was irrevocable.

The applicants sought relief from forfeiture to rescind their initial application and apply to Heartland.

The Tribunal found it had jurisdiction under section 129 of the Insurance Act to grant equitable relief.

Applying the test for relief from forfeiture, the Tribunal found the applicants made an innocent mistake, the gravity of the breach was minimal, and the disparity between the forfeited enhanced benefits and the damage caused was significant.

The Tribunal granted relief from forfeiture, allowing the applicants to rescind their application with Economical and apply to Heartland.

The applicant requested a reconsideration of a decision denying him income replacement benefits and a treatment plan.

He argued the adjudicator misapprehended expert evidence, breached procedural fairness, and made errors of fact and law regarding causation and expert qualifications.

The Vice Chair dismissed the request, finding no errors of law or fact and no breach of procedural fairness, noting the applicant was attempting to re-litigate the case.

The respondent's request for costs was also dismissed, as the applicant's conduct did not rise to the level of being unreasonable, frivolous, or vexatious.

The respondent insurer requested a reconsideration of a preliminary decision which found that the applicant's incident constituted an 'accident' under s. 3(1) of the Statutory Accident Benefits Schedule.

The respondent argued the Tribunal erred in its consideration of the evidence, including the applicant's examination under oath and an MRI report.

The Tribunal dismissed the request, finding that the respondent was attempting to re-litigate the weight assigned to the evidence and that no errors of law or fact were made that would have resulted in a different outcome.

The applicant's request for costs was also dismissed.

The applicant sought income replacement benefits and a physiotherapy treatment plan following a motor vehicle accident.

The respondent denied the benefits, arguing the applicant's impairments were caused by a subsequent disc herniation rather than the accident.

The Tribunal found that the applicant's physical injuries from the accident were soft tissue injuries that had substantially healed before the disc herniation occurred.

The Tribunal preferred the evidence of the respondent's orthopaedic surgeon over the applicant's experts, concluding the applicant failed to prove on a balance of probabilities that his physical or psychological impairments were caused by the accident.

The application was dismissed, with no entitlement to benefits, an award, or interest.

The applicants were seriously injured in a motorcycle accident and inadvertently applied for statutory accident benefits to the insurer of the motorcycle rather than their own auto insurer, with whom they had purchased optional enhanced benefits.

When they attempted to claim the optional benefits, their auto insurer denied the claim on the basis that they had already applied to another insurer.

The applicants brought an application to the Superior Court for relief from forfeiture.

The court dismissed the application, finding that under section 280 of the Insurance Act, exclusive jurisdiction to resolve disputes regarding entitlement to statutory accident benefits lies with the Licence Appeal Tribunal (LAT), stripping the court of jurisdiction to grant equitable relief in this context.

The applicant sought statutory accident benefits after experiencing intense back and leg pain while lifting her son into his car seat and subsequently pressing the accelerator.

The respondent denied the claim, arguing the incident did not constitute an 'accident' under s. 3(1) of the Statutory Accident Benefits Schedule.

The Tribunal found that the incident met both the purpose and causation tests, as loading a vehicle and driving are ordinary uses of an automobile, and there was no intervening act breaking the chain of causation.

The Tribunal concluded the incident was an accident and directed the parties to schedule a case conference.

This costs endorsement follows a four-week jury trial concerning a motor vehicle accident, where the plaintiff's jury awards for general damages and past loss of income were reduced to zero due to the statutory deductible and collateral accident benefits under the Insurance Act.

The defendant, deemed the successful party, sought substantial indemnity costs totaling over $400,000.

The plaintiff argued for a modest award, citing the defendant's late admission of liability and the jury's initial verdict.

The court, exercising its broad discretion under the Courts of Justice Act and Rule 57.01, declined to award substantial indemnity costs, finding no reprehensible conduct by the plaintiff.

However, it also rejected a "modest" award, concluding that partial indemnity was appropriate.

The court meticulously adjusted the defendant's claimed fees and disbursements, disallowing certain items like surveillance costs and excessive expert fees, ultimately awarding the defendant $131,980.35 in partial indemnity costs.

The court also dismissed the defendant's request for production of the plaintiff's adverse costs insurance policy, affirming its irrelevance and that Rule 30.02 does not apply when the law firm, not a party, is the policyholder.

At a case management conference, the plaintiff sought an extension of time to serve expert reports because a pediatric neurologist required an MRI to finalize her opinion, and the MRI was delayed until December 2019.

The court granted the request and amended the timetable for the service of expert reports, setting new deadlines for the plaintiff's and defendants' reports.

During a personal injury trial arising from a motor vehicle accident, the plaintiffs sought to qualify an anesthesiologist as an expert in chronic pain.

The court permitted the expert to testify regarding his diagnosis, observations, and prognosis of the plaintiff's chronic pain.

However, applying the Mohan and White Burgess frameworks, the court restricted the expert from opining on whether the accident caused the pain or whether the impairments met the statutory threshold for damages, reserving those ultimate issues for the jury.

Following a jury verdict awarding the plaintiff $35,000 in general damages and $20,000 in past loss of income for injuries sustained in a rear-end motor vehicle accident, the defendants brought a threshold motion.

The court found that while the plaintiff suffered a permanent impairment from chronic pain, she failed to prove on a balance of probabilities that her ongoing complaints were caused by the accident rather than pre-existing severe degenerative disc disease.

Furthermore, the court found that the impairment was not 'serious' within the meaning of the Insurance Act, as she was able to work and perform most tasks of daily living.

The threshold motion was granted, barring the plaintiff's claim for non-pecuniary damages.

In a personal injury jury trial arising from a motor vehicle accident, the plaintiffs sought to use demonstrative evidence, including medical illustrations, charts, and photographs, during their opening statement.

The defendants objected on the grounds of authenticity, accuracy, and prejudice.

The court ruled that most of the proposed demonstratives, including photographs and a subjective prescription chart, could not be used in the opening statement as their admissibility remained in dispute.

However, the court permitted the use of a factual physician chronology chart, finding it contained admissible evidence that could be proven without prejudice to the defendants.

This endorsement addresses case management issues in a long-standing action arising from a farm visit in 2005, particularly concerning the minor plaintiff Samuel Simpson who suffered significant cognitive and physical issues.

The court convened a case conference to establish a timetable for the delivery of expert reports, emphasizing the unacceptable delays in the case.

The judge ordered expedited efforts to obtain an MRI for the minor plaintiff and set specific deadlines for the service of expert reports on damages and liability for all plaintiffs and the defence.

The court also raised concerns about the minor plaintiff's representation after he turns 18 and directed counsel to make inquiries regarding a future litigation guardian.

The applicant was rear-ended in a motor vehicle accident and subsequently applied for a determination of catastrophic impairment due to mental and behavioural disorders.

The Tribunal applied the 'but for' test for causation and found that the accident caused the applicant's psychological impairments.

Preferring the evidence of the applicant's psychologist over the respondent's psychiatrist, the Tribunal concluded the applicant suffered a marked impairment (Class 4) in three of four functional domains (Activities of Daily Living, Concentration, Persistence and Pace, and Adaptation).

The applicant was deemed catastrophically impaired.

However, claims for specific medical and rehabilitation benefits were dismissed as the applicant failed to provide the disputed treatment plans or prove they were reasonable and necessary.

The third party insurer, CAA, brought a motion for summary judgment to determine if the defendant driver, Jeffrey Sorto Torres, was in possession of his father's (Victor Sorto Rivera) vehicle with or without consent at the time of a motor vehicle accident.

The determination would affect Victor's vicarious liability under the Highway Traffic Act and Wawanesa Mutual Insurance Company's uninsured motorist coverage.

The court found that Victor had given implied consent for Jeffrey to possess the vehicle, primarily due to Jeffrey being left in charge of the household and his autistic brother, and the accessibility of car keys.

Consequently, CAA's motion for summary judgment to dismiss the action against Victor Rivera was dismissed.

Following a jury trial for a motor vehicle accident, the plaintiff was awarded $2,000 for future housekeeping expenses, with all other heads of damage reduced to zero by statutory deductibles.

The plaintiff brought a motion for judgment, arguing the housekeeping award should not be reduced by a prior $3,650 accident benefits settlement.

The court found the settlement release covered past, present, and future housekeeping expenses, reducing the jury award to zero.

As the successful parties who had made a better offer to settle, the defendants were awarded partial indemnity costs of $138,416.42.

The insurer brought a motion to stay the arbitration on the grounds that the insured refused to attend a proposed in-home occupational therapy assessment as part of its catastrophic impairment assessment process.

The arbitrator dismissed the motion, finding that the insurer failed to demonstrate that the further assessment was reasonably necessary under section 44 of the Statutory Accident Benefits Schedule.

The insurer's neuropsychologist had access to numerous existing occupational therapy reports and failed to provide a credible explanation for why a new assessment was required.

Furthermore, the arbitrator held that even if the assessment were necessary, a stay would not be the appropriate remedy, as the insurer failed to establish irreparable harm or that the balance of convenience favoured a stay.

A third party moved for summary judgment dismissing a contribution and indemnity claim on the basis that it was statute‑barred under the Limitations Act, 2002.

The defendant argued the claim was only discoverable when an invoice revealed that it had supplied the oil tank involved in the loss.

The court held that s. 18 of the Limitations Act deems the claim for contribution and indemnity to arise when the defendant was served with the statement of claim, triggering a two‑year limitation period.

The defendant knew or ought to have known the identity of its tank supplier at that time and failed to exercise due diligence.

The third party claim was therefore commenced outside the limitation period and was dismissed on summary judgment.

The litigation guardian for a minor plaintiff brought a motion seeking to be replaced by the Office of the Children’s Lawyer as litigation guardian.

The moving party argued that the potential costs consequences of an upcoming summary judgment motion created a conflict of interest and justified the substitution.

The court held that concern over possible personal costs liability did not constitute an adverse interest within the meaning of the Rules of Civil Procedure.

The court further emphasized that the Children’s Lawyer is a litigation guardian of last resort and should not replace a capable and financially able parent absent evidence of true conflict or inability to act.

The motion was dismissed.

The plaintiff was injured in a collision with an uninsured motorist.

His insurer denied uninsured automobile coverage because the plaintiff was driving with a suspended licence.

The Minister of Finance, administering the Motor Vehicle Accident Claims Fund, brought a cross-claim on behalf of the uninsured defendant seeking a declaration of coverage.

The insurer moved for summary judgment to dismiss the claim and cross-claim, arguing the cross-claim was time-barred.

The Court of Appeal held that the statutory condition regarding authorized driving did not apply to uninsured automobile coverage unless explicitly provided in the policy, which it was not.

While the cross-claim was out of time under the Limitations Act, the court stayed the limitation defence in the interest of judicial economy.