Joseph Youssef Obagi

The applicant was involved in a motor vehicle accident and subsequently moved from Ontario to British Columbia.

He submitted an application for catastrophic impairment, which the respondent denied, requesting insurer's examinations (IEs) in Ontario.

The applicant refused to attend, arguing the respondent failed to make reasonable efforts to schedule the IEs in a convenient location (British Columbia) under s. 44(9)2i of the Schedule.

The respondent had inquired about BC assessors, found none available, and offered to pay for the applicant's travel and accommodations to Ontario.

The Tribunal found the respondent made reasonable efforts and that the applicant failed to provide medical evidence demonstrating an inability to travel.

Consequently, the applicant was found non-compliant with s. 44 and is barred from proceeding with his application under s. 55 of the Schedule.

The appellants appealed a trial judge's prejudgment interest order, arguing errors in applying statutory rates and discretion under the Courts of Justice Act.

The Court of Appeal found the trial judge erred by misapplying the presumptive 5% rate for non-pecuniary damages, misconstruing the purpose of non-pecuniary damages, and misinterpreting "market interest rates" by equating them with statutory prejudgment rates.

The trial judge also improperly rejected evidence of the insurer's and appellants' actual investment returns.

The appeal was allowed, and the prejudgment interest rate for both non-pecuniary and past pecuniary damages was increased to 8.46%.

This was a refusals motion brought by the plaintiff within a larger motion by the defendants to amend their statement of defence and potentially withdraw an admission in a bad faith action.

The plaintiff sought production of a letter from counsel relied upon by a witness for factual assertions in an affidavit, and an answer regarding communications with a companion bad faith action.

The court granted the refusals motion, ordering the production of the letter (with redactions for privileged portions, noting waiver of privilege for facts relied upon) and the answer to the question, finding them relevant to the main motion.

The defendants brought a motion seeking an assessment of the plaintiff, Ruth Campbell, to determine her capacity to testify at trial due to advancing dementia, and for disclosure of a capacity assessment report obtained by the plaintiffs.

The court granted the assessment for the purpose of determining her ability to testify, but strictly limited the use of the resulting report to a voir dire on her testimonial capacity, prohibiting its use for substantive issues of liability or damages.

The court also ruled that the plaintiffs' capacity assessment report, obtained to determine the need for a litigation guardian, was protected by solicitor-client and litigation privilege and not subject to disclosure.

The defendants brought a motion seeking a ruling that serving a subpoena on a doctor would allow them to receive the doctor's entire clinical notes and records without the doctor being sworn or called as a witness.

The plaintiffs opposed this.

The court dismissed the defendants' motion, holding that Rule 53.04(1) of the Rules of Civil Procedure requires a witness's attendance and testimony at trial, and that a subpoena cannot be used to bypass established discovery processes or to obtain documentary disclosure without the witness being subject to cross-examination.

The court emphasized that such a practice would lead to "trial by ambush" and discourage early settlement.

The defendants brought a motion for leave to admit an expert report from Dr. Armstrong concerning the plaintiff's life expectancy in a personal injury action.

The court found that while the defendants provided a reasonable explanation for the late delivery of the report and that the plaintiffs were not prejudiced by the delay, the report itself was inadmissible.

The report failed to comply with Rule 53.03(2.1)6 by not providing a methodology or listing all relied-upon documents.

Furthermore, its probative value was deemed very low due to the expert's inappropriate analytical approach (life insurance vs. annuity) and use of general population statistics without proper explanation.

Finally, Dr. Armstrong was not qualified to provide a medical diagnosis as he had not been a member of the College of Physicians and Surgeons since 2010.

The motion for leave was dismissed, and the report was ruled inadmissible.

The Ottawa Community Housing Corporation (OCHC) sued Sloan Valve Company and Wolseley Canada Inc. for damages related to the alleged failure of the Flushmate System, asserting claims for breach of warranty under the Sale of Goods Act, negligence, and negligent misrepresentation.

The defendants brought a Rule 21 motion to strike OCHC's claims for breach of implied warranty against Sloan and negligence against both defendants, arguing that implied warranties under the Sale of Goods Act require privity of contract and that pure economic loss from non-dangerous, shoddy goods is not recoverable in negligence.

The court granted the defendants' motion, striking both the implied warranty claim against Sloan and the negligence claims against both defendants, affirming that privity is required for implied warranties under the SGA and that economic loss for non-dangerous goods is not recoverable in negligence.

OCHC was granted leave to amend its pleading regarding negligent misrepresentation.

The defendant brought a motion for leave to appeal an earlier order of Kaufman J. The Divisional Court denied the motion for leave to appeal and awarded costs to the responding plaintiffs in the fixed amount of $5,000 all-inclusive.

The defendant Metrolinx brought a motion seeking an order to compel the injured plaintiff, J.E., to attend an in-person psychiatric assessment.

Metrolinx argued this was necessary to respond to evidence regarding J.E.'s psychiatric conditions, including a recent schizophrenia diagnosis.

The plaintiffs opposed, arguing their pleadings did not attribute the recent psychiatric conditions to the incident and that their expert, a neuropsychologist, could address the diagnoses.

The court dismissed Metrolinx's motion, finding that Metrolinx had not established the necessity of the in-person assessment to level the playing field, especially since their own psychiatrist had already provided a paper review report addressing causation.

The court emphasized that the plaintiff's pleadings did not allege the 2017 incident caused the 2023 psychiatric conditions and that the role of treating healthcare professionals as participant experts is limited by the court's gatekeeper function.

The respondent requested a reconsideration of a Tribunal decision finding the applicant was employed at the time of the accident and entitled to an income replacement benefit.

The respondent argued the Tribunal made errors of law and fact by failing to apply the eligibility criteria in s. 5(1) of the Schedule and failing to consider the impact of the applicant's WSIB benefits under s. 47(3)(e) of the Schedule and s. 43(3) of the Workplace Safety and Insurance Act.

The Vice-Chair agreed, finding the original decision lacked the necessary analysis of these provisions.

The request for reconsideration was granted, the original decision was cancelled, and a rehearing by written submissions before a different adjudicator was ordered.

The defendant, Kevin Rix, brought a motion to compel the plaintiff, Louise Charron-Rix, to attend a defence orthopaedic assessment and to extend the time for serving the resulting report.

The court dismissed the motion, finding that the defendant's request was made too late, three years after the plaintiff's initial expert report and just two months before trial.

The court emphasized the prejudice to the plaintiff and the risk of delaying the trial, noting that the updated medical records did not disclose new diagnoses justifying a late assessment and that the defendant had not previously asserted the necessity of such an examination.

The insureds' home was destroyed by a flood.

The insurer acknowledged coverage but disputed whether the Guaranteed Rebuilding Cost Endorsement covered the increased costs of complying with conservation authority regulations and building codes enacted after the home was originally built.

The application judge held that the endorsement covered all rebuilding costs without limitation.

The Court of Appeal allowed the insurer's appeal, finding that the policy's exclusion for increased costs due to the operation of 'any law' applied to by-laws and regulations, limiting the insurer's liability for those specific compliance costs to the $10,000 provided in the Building By-Law and Code Compliance Coverage.

The applicant requested a reconsideration of a Licence Appeal Tribunal decision that denied various statutory accident benefits, including attendant care, home modifications, and occupational therapy.

The applicant argued the Tribunal violated procedural fairness, made errors of fact, relied on false evidence from an occupational therapist, and that new medical evidence was available.

The Vice-Chair dismissed the request, finding no procedural unfairness in separating the hearings, no errors in weighing the evidence, that the occupational therapist's prior disciplinary record did not render her evidence false, and that the new medical report would not have changed the outcome as it relied on self-reporting previously deemed unreliable.

The applicant sought statutory accident benefits following a 2019 motor vehicle accident, claiming catastrophic impairment due to a mental and behavioural disorder, along with attendant care, home modifications, and other medical benefits.

The Licence Appeal Tribunal found the applicant was not a credible witness and failed to establish that her impairments were caused by the accident, noting significant pre-existing physical and psychological conditions.

The Tribunal concluded the applicant did not meet the criteria for catastrophic impairment and dismissed all claims for disputed benefits, finding them either not reasonable and necessary, duplicative, or unrelated to the accident.

The moving party, Sun Life Assurance Company of Canada, brought two motions for leave to appeal the orders of the lower court regarding summary judgment and certification.

The Divisional Court dismissed both motions for leave to appeal.

The court awarded agreed aggregate costs of $25,000 to the responding party.

The defendant brought a motion to set the prejudgment interest rate on non-pecuniary damages awarded to the plaintiffs by a jury at 1.3% instead of the prescribed 5%.

The plaintiffs cross-moved, seeking an 8.46% rate for both non-pecuniary and past pecuniary damages.

The court granted the defendant's motion, reducing the prejudgment interest on non-pecuniary damages to 1.3%, citing low prevailing prejudgment interest rates and the future loss component of the award.

The plaintiffs' cross-motion was dismissed, with the court maintaining the default 0.8% rate for past pecuniary damages, rejecting the plaintiffs' arguments for a higher rate based on their investment returns or the defendant's insurer's returns.

The applicant, who has pre-existing cerebral palsy, sought various statutory accident benefits following a motor vehicle accident, including $6,000 per month for attendant care, $1,000,000 for home modifications, and multiple treatment plans.

The Tribunal found the applicant's self-report to be unreliable and preferred the evidence of the respondent's assessors, concluding that the accident caused only soft tissue injuries and an adjustment disorder, not the severe physical and cognitive decline claimed.

The Tribunal denied the claims for attendant care, home modifications, and most treatment plans, but approved psychological treatment and aquatherapy as reasonable and necessary.

Claims for interest on the approved plans were granted, but the request for a special award was dismissed.

The applicant was catastrophically injured in a motor vehicle accident and sought Income Replacement Benefits (IRB).

Prior to the accident, the applicant was participating in a Work Transition Program through the WSIB, which included a work placement.

The insurer denied IRB, arguing the applicant was not employed but receiving disability benefits.

The Tribunal found that the work placement created an employer/employee relationship, as the applicant was required to perform specific duties and report to a supervisor.

The Tribunal concluded the applicant was employed at the time of the accident and entitled to IRB.

The plaintiff was struck on the head by a bocce ball thrown by the defendant Goulet while seated on the outdoor patio of the defendant restaurant (Local).

The plaintiff suffered a mild traumatic brain injury resulting in chronic headaches, fatigue, and cognitive deficits.

The plaintiff settled with the restaurant via a Pierringer Agreement prior to trial.

At trial, Goulet argued the restaurant was contributorily liable for failing to erect a barrier or post warning signs.

The court found Goulet 100% liable, concluding that while the restaurant failed to post a warning sign, this breach did not cause the injury as Goulet knew throwing the ball was dangerous.

The court awarded the plaintiff general damages of $125,000, plus past and future loss of income, future care costs, and out-of-pocket expenses.

The applicants, having been successful on the main application, sought costs of $46,351.88 on a partial indemnity basis.

The respondent argued the claimed amount was excessive, noting its own counsel spent significantly fewer hours.

The court found the applicants' hourly rates reasonable but the total hours claimed high, suggesting potential overlap between senior and junior counsel.

Applying the principles in Boucher and Rule 57.01, the court fixed costs at $40,000 all-inclusive.