Joseph Brian Donnelly

Following a successful motion compelling the plaintiff to attend an occupational therapy examination, the defendant sought costs on a partial indemnity basis.

The court assessed the reasonableness of the claimed fees and time spent by counsel and a junior lawyer or paralegal, including preparation and attendance at the hearing.

Applying the principles under Rule 57.01 regarding fairness and reasonable expectations, the court found the claimed preparation time excessive compared with the responding party’s preparation time.

The court reduced the fees allowed and also limited recovery for travel time.

Costs were fixed at a reduced amount payable by the plaintiff.

The appellants appealed a trial judgment finding a prescriptive easement over disputed lands.

The trial judge found that the previous owners did not give permission or a license for the use of the lands, and any agreement related only to a fence.

Alternatively, if permission was given, it was not renewed.

The Court of Appeal found evidence to support these findings and saw no basis to interfere.

The appeal was dismissed with costs awarded to the respondents.

The applicant sought an assessment of expenses following a successful arbitration for statutory accident benefits and a subsequent appeal.

The insurer argued the request was out of time under Rule 79.1 of the Dispute Resolution Practice Code.

The arbitrator exercised discretion under Rule 81.1 to set aside the 30-day time limit, finding it reasonable that the applicant waited until the appeal was resolved.

The arbitrator awarded the applicant his expenses, including an hourly rate of $150 for his counsel and $45 for a highly experienced law clerk who also acted as an interpreter.

Total expenses of over $51,000 were awarded, including disbursements and the costs of the assessment hearing.

The appellant insurer and respondent insured both sought their expenses following an appeal decision where the insurer successfully reduced a special award from $40,000 to $10,000, but the insured successfully defended the entitlement to the special award and the exclusion of certain evidence.

The Director's Delegate found that the insured had the greatest degree of success overall and was entitled to expenses.

However, because success was divided, the insured was awarded only half of his reasonable expenses.

The insured's claim for over 80 hours of preparation was found excessive compared to the Legal Aid tariff for Supreme Court appeals.

Reasonable expenses were assessed at $4,000, resulting in an award of $2,000 to the insured.

The insurer appealed an arbitration decision that excluded the evidence of a replacement medical expert and ordered a $40,000 special award for unreasonably delaying and withholding income replacement benefits.

The Director's Delegate upheld the exclusion of the replacement expert's evidence, finding no error of law.

While the Delegate agreed that the insurer unreasonably delayed and withheld benefits, he found the arbitrator erred in calculating the special award by applying it to post-104 week benefits based on a late-filed medical report the insurer had no time to consider.

The Delegate also found the arbitrator failed to consider mitigating factors and proportionality.

The special award was reduced to $10,000.

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

The insurer terminated his weekly income replacement benefits on October 24, 2000.

The applicant applied for arbitration, seeking ongoing income replacement benefits and a special award.

The arbitrator found that the applicant suffered a substantial inability to perform the essential tasks of his employment for the first 104 weeks, and a complete inability to engage in any suitable employment thereafter due to chronic pain and depression.

The arbitrator also found that the insurer unreasonably withheld the benefits despite having sufficient medical and employment information, and awarded a special award of $40,000 inclusive of interest.

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

Following an initial arbitration and subsequent appeal that remitted the matter for a new hearing, the insurer sought production of independent medical examinations (IEs) obtained in the applicant's related tort action.

The arbitrator considered the recent Court of Appeal decision in Tanner and the tribunal's approach to importing documents from civil actions.

Finding that the insurer had a compelling reason for not obtaining its own updated medical assessments due to the intervening appeal, the arbitrator ordered the applicant to produce the tort IEs in her possession for the period between the first hearing and the appeal decision.

In a preliminary issue hearing for a statutory accident benefits arbitration, the insurer sought to admit the medical report of an expert who died before the hearing, as well as a critique report by a different doctor to stand in his place.

The arbitrator admitted the deceased doctor's report, noting it was prepared at a crucial time when benefits were terminated and no other examination could be obtained, though its weight would be adjusted since he could not be cross-examined.

However, the arbitrator refused to admit the second doctor's report or allow him to testify, as there was no evidence he shared the same medical specialty as the deceased expert.

The appellant was injured in a motor vehicle accident and received income replacement benefits for two years until the insurer terminated them, arguing she did not meet the 'any occupation' test.

At arbitration, the Arbitrator ordered benefits reinstated but only until September 2000, inferring from a psychiatrist's report that the appellant could perform some work.

On appeal, the Director's Delegate found the Arbitrator erred in law by drawing an inference that was not supported by the evidence, as the psychiatrist's report did not recommend a work trial but merely suggested one to prove his unqualified opinion that she was completely disabled.

The appeal was allowed and the issue of entitlement to benefits was remitted to a new arbitration hearing.

The applicant was injured in a motor vehicle accident and received income replacement benefits for 104 weeks.

The insurer terminated benefits, and the applicant sought ongoing income replacement, attendant care, and housekeeping benefits.

The arbitrator found that the applicant did not suffer a complete inability to engage in suitable employment due to physical injuries, but did suffer such an inability due to psychological complications (severe depression and anxiety) until her condition stabilized.

The arbitrator awarded income replacement benefits for a closed period.

The claims for attendant care and housekeeping expenses were dismissed because the applicant failed to prove she incurred a cost or obligation to pay her husband for those services.

The applicant sought an assessment of expenses following a successful arbitration for statutory accident benefits.

The insurer disputed the amount of legal fees, clerk fees, and certain disbursements.

The arbitrator awarded the applicant's counsel the maximum hourly rate of $150, finding the case was not straightforward and required significant preparation.

The arbitrator allowed a ratio of three hours of preparation for each hour of hearing for counsel, and two hours for the clerk, who also provided translation services.

The insurer was ordered to pay $19,200 for counsel fees, $4,320 for clerk fees, and $5,741.23 for disbursements.