Karl Arvai

The insurer appealed a decision but subsequently abandoned the appeal on consent of the parties.

The Director's Delegate ordered the appeal dismissed and directed the insurer to pay the respondent's legal appeal expenses in the amount of $3,643.72, inclusive of disbursements and HST.

The respondent was injured in a motor vehicle accident in Las Vegas, Nevada in 2005.

The dispute concerns her entitlement to benefits under the OPCF 44R Endorsement in her Ontario motor vehicle insurance policy.

At a June 30, 2016 pre-trial, both counsel agreed that Ontario law applies and signed a Rule 50.08(3) certificate confirming this.

Subsequently, the respondents' counsel learned of the Chomos decision, which held that threshold and collateral benefits questions are governed by the law of the place where the accident occurred.

At a second pre-trial on January 25, 2018, the respondents' counsel sought to withdraw the choice of law agreement.

The motion judge dismissed the appellant's cross-motion for a declaration that Ontario law applies and declared that Nevada law will apply.

The appellant appealed, arguing the parties had reached a binding litigation agreement.

The Court of Appeal dismissed the appeal, finding no binding agreement existed and that the respondents' counsel had made an inadvertent admission based on a misunderstanding of the law.

The plaintiff in a personal injury action moved to strike the defendants' jury notice, arguing complexity due to chronic pain claims and potential injustice.

The court dismissed the motion, finding that the case was not unusually complex and that juries are capable of assessing credibility in chronic pain cases, especially with proper judicial instruction on the reality of chronic pain as established by the Supreme Court of Canada.

The court also rejected the plaintiff's arguments that recent jury verdicts in chronic pain cases demonstrated inherent injustice or that the civil jury system was being inappropriately used by insurers.

A personal injury trial, which had been estimated to last 5-6 weeks, was declared a mistrial after 4.5 weeks due to grossly inaccurate trial duration estimates provided by counsel.

The court emphasized the critical importance of accurate estimates for the efficient administration of justice, juror experience, and access to justice for other litigants.

Despite repeated warnings and attempts to manage the schedule, the trial could not be completed within the confirmed timeframe.

The judge found that the pace of the trial, coupled with counsel's shifting strategies and "desperation" to conclude, made a fair and just completion impossible, necessitating the regrettable decision to declare a mistrial to prevent further waste and uphold the integrity of the justice system.

In this personal injury action, the plaintiff objected to the admissibility of defence surveillance video as substantive evidence during an ongoing civil jury trial.

The plaintiff argued that the video had low probative value, was potentially prejudicial, and that some portions were not disclosed in a timely manner under Rule 30.09.

The court dismissed the objection, finding the surveillance video prima facie relevant to the plaintiff's condition and abilities, and that its probative value was not outweighed by prejudicial effect.

The court granted leave for late disclosure under Rule 30.09, noting ample opportunity for review.

The ruling allowed the defendants to tender the video as substantive evidence, subject to specific qualifications regarding the exclusion of overly intrusive or misleading segments and directions on presentation to the jury.

The plaintiff in a personal injury action arising from a motor vehicle accident brought a preliminary motion to exclude photographs of vehicle damage at trial.

The plaintiff argued the photographs were irrelevant since liability was admitted, and that admitting them without expert biomechanical evidence would invite unguided speculation by the jury that minor vehicle damage equates to minor injury.

The court dismissed the motion, holding that the photographs were relevant to causation and admissible without expert evidence, as causation is a matter of common sense.

The court noted that a jury instruction would be given to clarify that serious injuries can still result from low-impact collisions.

In a personal injury action, the plaintiff objected to the defendants' attempt to introduce evidence and arguments suggesting that the plaintiff's receipt of collateral benefits was relevant to her motivation to work and her actual disability.

The court sustained the plaintiff's objection, ruling that such considerations were speculative and lacked relevance to the determination of disability.

The decision emphasized that while collateral benefits are relevant for calculating offsets, they should not be used to imply a lack of motivation to work or to undermine claims of disability.

In a personal injury action, the defendants objected to the plaintiff's proposed witness sequence, which intended to call a physiotherapist, Gloria Gilbert, as the first witness, followed by the plaintiff.

The defendants argued that the plaintiff should testify first to provide context for her subjective chronic pain claims.

The court dismissed the defendants' objection, allowing the plaintiff to call Ms. Gilbert first, provided the plaintiff excluded herself from the courtroom during Ms. Gilbert's testimony.

The court emphasized a litigant's right to present their case as counsel deems advisable, finding no compelling reason to interfere with the modest deviation from usual practice, especially since Ms. Gilbert was presented as a "participating expert" whose testimony would not inherently depend on the plaintiff's prior evidence.

The defendant insurer brought a cross-motion for a declaration that Ontario law applied to the assessment of damages in an underinsured motorist claim arising from a motor vehicle accident in Nevada.

The defendant relied on an agreement reached at a pre-trial conference where plaintiffs' counsel conceded Ontario law applied.

The plaintiffs sought to withdraw this admission, arguing it was based on a mistake of law regarding the interpretation of the OPCF-44R Endorsement and ignorance of binding appellate jurisprudence.

The court dismissed the defendant's motion, allowing the plaintiffs to withdraw the admission as there was no consensus ad idem and enforcing the agreement would cause significant prejudice to the plaintiffs.

The Applicant was injured in a motor vehicle accident and sought housekeeping and income replacement benefits from her insurer.

The insurer disputed the housekeeping expenses, arguing they were not 'incurred' as the Applicant could not prove she spent the claimed amounts weekly.

The Arbitrator applied a broad interpretation of 'incurred' and awarded the housekeeping benefits.

The insurer also sought to deduct a lump sum long-term disability settlement the Applicant received after five years of litigation from her income replacement benefits.

The Arbitrator held that under section 7(1) of the Schedule, the insurer could not deduct the lump sum payment because the collateral benefits were not 'being received' periodically during the relevant time.

The Arbitrator also denied the insurer's request to deduct union dues from the calculation of net weekly income and awarded the Applicant interest on the overdue benefits.

The appellant appealed a jury verdict dismissing her action against her insurer for damages under unidentified motorist coverage.

The appellant claimed that an unidentified vehicle crossed the center line and caused her to lose control of her vehicle and roll into a ditch.

The jury answered "no" to the question of whether the unidentified driver's negligence caused the accident, but answered "yes" to whether the appellant's evidence of the involvement of an unidentified automobile was corroborated.

The appellant argued the jury's answers were inconsistent, that the trial judge erred in her charge on the standard of care in emergencies, the burden of proof, and that the charge was unbalanced.

The appellant also challenged the conduct of defence counsel.

The Court of Appeal dismissed the appeal, finding the jury's answers were reconcilable, the trial judge's charge was adequate, and any concerns about counsel's conduct were appropriately addressed.

The defendant, Coachman Insurance Company, brought a motion to amend its statement of defence and, in the alternative, for leave to withdraw alleged admissions concerning the involvement of an unidentified motorist.

The plaintiff, Margret Kabutangana, opposed the amendments, arguing they constituted a withdrawal of admissions.

The court first granted the plaintiff leave to file additional affidavit evidence.

On the main motion, the court determined that the defendant's original pleading did not contain unambiguous and deliberate admissions, thus Rule 51.05 (withdrawal of admissions) was not applicable.

The court then granted the defendant leave to amend its statement of defence under Rule 26, finding no uncompensable prejudice to the plaintiff, especially given the plaintiff's prior knowledge of the defendant's position and statutory obligations regarding corroborating evidence for damages exceeding $200,000.

The moving party, Ontario Lottery and Gaming Corporation (OLG), brought a motion for summary judgment to dismiss the plaintiff's claim for supplementary health benefits as barred by the Limitations Act, 2002.

The plaintiff had previously settled a long-term disability claim with Great-West Life, which retroactively acknowledged her disability.

OLG argued the plaintiff knew her benefits were cancelled in 2008 for non-payment of premiums.

The court found multiple factual and legal issues requiring a trial, including whether OLG was obliged to pay the premiums during the acknowledged disability period, conflicting evidence regarding reinstatement agreements, and the effect of OLG's prior premium refunds.

The motion for summary judgment was dismissed.

The appellant appealed a jury verdict that apportioned liability 90% to the appellant and 10% to the respondent.

The Court of Appeal applied the rigorous test for setting aside a civil jury verdict, which requires the verdict to be so plainly unreasonable and unjust that no jury acting judicially could have reached it.

Finding the apportionment decision did not meet this threshold, the court dismissed the appeal with costs.

The plaintiff brought a motion to compel his former solicitor to transfer his file to his new solicitor.

The former solicitor asserted a solicitor's lien and demanded immediate payment of outstanding disbursements before releasing the file.

The court reviewed the contingency fee retainer agreement and found it did not require immediate payment of disbursements upon termination.

Given the plaintiff's impecuniosity and the former solicitor's ability to protect its interests via a charging order against future settlement proceeds, the court ordered the file transferred subject to a $300 copying fee.

The defendant Ministry of Transportation brought a motion seeking orders requiring the plaintiff to complete a further future cost of care assessment at her home and to attend a defence psychological examination under Rule 33 of the Rules of Civil Procedure and s. 105 of the Courts of Justice Act.

The action arose from a motor vehicle accident and was scheduled for trial in less than three months.

The court held that the moving party failed to demonstrate that additional occupational therapy assessment time or a further psychological examination was necessary to ensure trial fairness.

The existing medical evidence and prior defence examinations were sufficient to permit the defence to respond to the plaintiff’s claims.

The motion was dismissed, although leave was granted for the defence psychiatrist to provide a limited supplemental report responding to a recent expert report.

The plaintiff was injured in a motor vehicle collision when the defendant driver failed to yield the right-of-way at an intersection.

The plaintiff suffered a mild traumatic brain injury, depression, and chronic pain, which substantially interfered with her employment and daily life.

The court found the defendant driver fully liable and his employer vicariously liable.

The court held that the plaintiff's injuries met the statutory threshold for non-pecuniary damages and awarded $100,000 in general damages, $50,000 for loss of competitive advantage, and $45,000 in Family Law Act damages.

The court also discharged the jury due to inflammatory opening statements by defence counsel.

The insurer applied for a determination of whether s. 45 of the Statutory Accident Benefits Schedule requires an insured to identify a single accident when applying for a catastrophic impairment designation.

The insured had been involved in three motor vehicle accidents and submitted a single OCF‑19 application claiming catastrophic impairment based on the cumulative effects of all three accidents.

The court interpreted the legislation and regulatory scheme and concluded that the catastrophic impairment determination must be anchored to a single identified accident.

However, the insured may still rely on the cumulative impact of prior accidents where the specified accident represents the tipping point leading to catastrophic impairment.

The court therefore granted the application in part and declared that the application must specify one accident.

The appellant appealed an arbitration decision denying his $29,000 expense claim due to a 31-month delay in requesting an expense hearing.

The Director's Delegate dismissed the appeal and ordered that any request for appeal expenses be made within 60 days.

The respondent, who was entirely successful on the appeal, failed to request an appeal expense hearing within the 60-day timeline, waiting at least seven months.

The Director's Delegate found that the respondent's delay was deliberate and a disregard of an adjudicative order.

Consequently, the Director's Delegate declined to extend the timeline and ordered each party to bear their own legal expenses of the appeal.

The Applicant sought expenses for an arbitration hearing that concluded in 2008 when the Insurer conceded the issue of catastrophic impairment.

The Insurer argued the Applicant was not entitled to expenses due to a 4.5-year delay in submitting a Bill of Costs, relying on Rule 79.1 of the Dispute Resolution Practice Code and the principle of finality.

The Arbitrator found that Rule 79.1 did not apply because no final arbitration order had been issued.

Given the ongoing dealings between the parties over the years, the delay did not deprive the Applicant of her entitlement under s. 282(11) of the Insurance Act.

The Arbitrator awarded the Applicant $30,972.81 in expenses.