Kristy Lynn Kerwin

The applicant sought a determination that he sustained a catastrophic impairment as a result of a 2016 motor vehicle accident, claiming marked impairments in social functioning and adaptation, and a whole person impairment (WPI) of 55% or more.

The Tribunal found that the applicant's psychological impairments were largely attributable to pre-existing substance abuse issues rather than the accident.

Preferring the evidence of the respondent's psychiatric assessor, the Tribunal concluded the applicant suffered only mild impairments and a 14% mental/behavioural WPI, falling short of the catastrophic impairment thresholds.

The application for attendant care benefits, assessment costs, and interest was dismissed.

The applicant sought a determination that she sustained a catastrophic impairment under Criterion 8 (mental and behavioural disorders) following a 2018 motor vehicle accident.

The respondent insurer denied the claim, arguing her impairments were largely due to a pre-existing 2011 slip and fall injury.

The Tribunal applied the 'but for' test and found the accident was a necessary cause of her current impairments.

Preferring the applicant's expert evidence, the Tribunal concluded the applicant suffered marked (Class 4) impairments in three domains: social functioning, concentration, persistence and pace, and adaptation.

The applicant was deemed catastrophically impaired.

The appellant sought income replacement benefits (IRBs) under the Statutory Accident Benefits Schedule following a motor vehicle accident.

The central issue was the correct interpretation of the test for post-104-week IRBs under section 6(2)(b) of the Schedule.

The appellant argued that the test requires consideration of employment in a competitive, real-world setting comparable in nature, status, and remuneration to the insured's former employment.

The respondent insurer argued that the statutory test does not include such requirements.

The Court of Appeal upheld the lower courts' decisions, holding that while factors such as competitive real-world setting, status, and remuneration are relevant considerations in the evidence-based analysis, they are not stand-alone requirements of the test.

The appellant failed to prove a complete inability to engage in any employment for which she was reasonably suited by education, training, or experience, particularly given evidence that wedding planning remained a viable option.

The appellant appealed a Licence Appeal Tribunal decision that found she was not catastrophically impaired following a motor vehicle accident.

The Divisional Court allowed the appeal, finding the Tribunal breached procedural fairness in three ways: relying on the untested evidence of the respondent's expert who did not re-attend for cross-examination, deciding the issue of causation without notice when it was not in dispute, and relying on documents not in evidence that the appellant had no opportunity to address.

The matter was remitted to the Tribunal for a new hearing.

The applicant sought statutory accident benefits after slipping and falling on ice while allegedly attempting to enter her husband's vehicle.

The respondent denied benefits on the basis that the incident was not an 'accident' under s. 3(1) of the Schedule.

At a preliminary issue hearing, the Tribunal applied the two-part test from Caughy.

While the purpose test was met, the causation test failed because the slip and fall on the ice constituted an intervening act that broke the chain of causation.

The application was dismissed.

The insurer applied to the Licence Appeal Tribunal for repayment of income replacement benefits paid to the respondent, alleging wilful misrepresentation.

The insurer initially sought $5,187.00 but increased its claim to $10,786.97 in its submissions.

The Tribunal found that the insurer was only entitled to $4,788.00, as it had only provided proper notice for that amount under section 52 of the Schedule.

The Tribunal rejected the insurer's allegations of wilful misrepresentation, finding that the overpayment was likely due to the insurer's own error in issuing a lump sum payment five years post-accident despite having the respondent's tax returns.

The Tribunal awarded $500.00 in costs to the respondent due to the insurer's unreasonable conduct in ambushing the respondent with new claims and making unfounded allegations of fraud.

The appellant appealed a Licence Appeal Tribunal decision finding he had not suffered a catastrophic impairment following a motor vehicle accident.

The appellant argued the adjudicator erred in her treatment of expert evidence, violated procedural fairness by questioning an expert, misapplied the temporal requirements for assessments under the Statutory Accident Benefits Schedule, and used an overly restrictive causation test.

The Divisional Court dismissed the appeal, finding no errors of law, as the adjudicator properly applied a flexible approach to the timing of assessments and correctly considered impairments caused by the traumatic brain injury.

The applicant sought a determination of catastrophic impairment under criterion 8 of the Schedule following a motor vehicle accident.

The respondent conceded the applicant was catastrophically impaired but argued the impairments pre-dated the accident.

Applying the 'but for' test for causation, the Tribunal found that while the applicant had pre-existing physical limitations and transient depression, he maintained a high level of mental and behavioural functioning and worked full-time prior to the accident.

The Tribunal preferred the evidence of the applicant's treating physician and assessing psychiatrist, concluding the accident triggered a significant decline in function.

The Tribunal held the applicant sustained a catastrophic impairment as a result of the accident.

The applicant sought a determination of catastrophic impairment and entitlement to attendant care and housekeeping benefits following a 2013 motor vehicle accident.

The Licence Appeal Tribunal found that the applicant's psychological issues, primarily anxiety, were pre-existing and related to prior health crises, not the accident.

The Tribunal concluded the applicant did not sustain a catastrophic impairment under either the 55% whole person impairment threshold or the marked impairment in adaptation criterion, noting her ability to travel, socialize, and adapt to her pain.

Because the applicant was not catastrophically impaired, her claims for attendant care and housekeeping benefits were dismissed as time-barred and not payable.

The appellant, Joan Holmes, appealed a summary judgment granted in favour of the respondents, Aurelio and Maria Acquaviva, in a mortgage enforcement action.

Holmes had defaulted on a mortgage payment and subsequently alleged an elaborate mortgage fraud against the respondents and others in a separate action.

The motion judge found no genuine issue requiring a trial, concluding that Holmes had not provided evidence to support her fraud claims and that the mortgage claims were severable from her fraud allegations.

The Court of Appeal upheld the motion judge's decision, finding no error in his analysis or conclusion that there was no genuine issue requiring a trial.

The appeal was dismissed, and costs were awarded to the respondents on a full indemnity scale.

The respondent insurer brought a motion to compel the applicant's counsel, who was also her former employer, to testify as a witness at the hearing regarding her claim for attendant care benefits.

The respondent argued the evidence was relevant to the applicant's capabilities since the accident.

The Tribunal dismissed the motion, finding the respondent failed to meet the high threshold of showing the lawyer's evidence was highly material or necessary, particularly since the benefits in dispute were from 2020 onwards while the employment occurred in 2013-2014.

The Tribunal also noted the motion was untimely and compelling the lawyer would improperly deprive the applicant of her choice of counsel.

The respondent insurer brought a preliminary motion to dismiss the applicant's claims for attendant care and housekeeping benefits, arguing they were statute-barred because the applicant failed to dispute a 2012 denial within two years.

The applicant was deemed catastrophically impaired in 2015.

Applying the discoverability rule and the Court of Appeal's decision in Tomec, the Tribunal found that the limitation period did not commence until the applicant was denied benefits based on his catastrophic designation, which occurred in 2017.

Therefore, the application was not statute-barred and the motion was dismissed.

The applicant sought statutory accident benefits following a motor vehicle accident, specifically disputing the insurer's denial of treatment plans for catastrophic impairment assessments and physiotherapy.

The Tribunal found that the catastrophic impairment assessments were not payable because they were completed by an occupational therapist rather than a physician, as required by the 2010 SABS.

However, the Tribunal approved the treatment plan for physiotherapy, finding it reasonable and necessary based on the medical evidence.

The Tribunal also ruled that HST is not included in the calculation of medical and rehabilitation benefit limits, but declined to order a special award, finding the insurer's contrary position was not taken in bad faith.

The applicant requested a reconsideration of a case conference order requiring him to produce a list of relevant, non-privileged documents from his accident benefits file.

The applicant argued this breached procedural fairness and was overly burdensome given the 13-year-old file.

The Vice Chair dismissed the request, finding the applicant misunderstood the order, which did not require producing the entire file or privileged documents, and that the order was within the adjudicator's discretion to ensure procedural fairness for both parties.

The applicant sought production of all surveillance evidence from the respondent insurer, regardless of whether the insurer intended to rely on it at the hearing.

The adjudicator found that surveillance evidence is relevant to the catastrophic impairment determination.

However, litigation privilege arose on September 4, 2014, when the applicant filed a prior related application for a non-earner benefit.

Applying the Supreme Court's decision in Blank, the adjudicator held that the litigation privilege from the 2014 application continued for the current application because both proceedings shared a common factual issue regarding the applicant's level of impairment.

The respondent was ordered to disclose and produce surveillance conducted prior to September 4, 2014, but surveillance conducted after that date was protected by litigation privilege and did not need to be produced unless the respondent intended to rely on it.

Following a determination that the applicant was catastrophically impaired as a result of a motor vehicle accident, the applicant sought her expenses for the arbitration hearing.

The arbitrator found the applicant was entirely successful and entitled to her expenses.

After reviewing the claimed fees and disbursements, including expert witness fees and preparation time, the arbitrator awarded the applicant $51,679.28 inclusive of fees, disbursements, and HST.

The applicant sought accident benefits following a motor vehicle accident.

At the scheduled arbitration hearing, the applicant failed to attend despite a peremptory order.

The insurer brought a motion to dismiss the application without costs, noting a settlement had been reached but the settlement disclosure notice was unsigned.

The arbitrator proceeded in the applicant's absence under Rule 37.9 of the Dispute Resolution Practice Code.

Finding no objective evidence of a finalized settlement to apply Rule 69.4, but noting the applicant's failure to attend and lack of intent to continue, the arbitrator dismissed the application without costs.

The applicant sought attendant care benefits following a motor vehicle accident.

The Tribunal found that while the applicant's physical injuries fell within the Minor Injury Guideline (MIG), her psychological impairments (Major Depressive Disorder and Generalized Anxiety Disorder) took her outside the MIG.

However, the claim for attendant care benefits was dismissed because the applicant failed to prove the expenses were 'incurred' under section 3(7)(e) of the Schedule.

The evidence regarding care provided by family members was vague, lacked corroboration, and failed to establish economic loss or that the care was provided in the course of ordinary employment.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits, claiming she sustained a catastrophic impairment due to a mental or behavioural disorder.

The sole issue was whether she suffered a marked impairment in the adaptability domain.

The arbitrator preferred the evidence of the applicant's experts, finding that the insurer's psychiatric assessment was based on incomplete facts.

The arbitrator concluded that the applicant's major depression and cognitive difficulties significantly impeded her ability to maintain activities of daily living, continue social relationships, and adapt to stressful circumstances, including parenting and employment.

The applicant was found to be catastrophically impaired within the meaning of the Schedule.