Daniel Lester

The appellant was struck by an uninsured motorcycle and suffered serious injuries.

She applied for statutory accident benefits 14 months after the accident, well beyond the 7-day notice period.

The License Appeal Tribunal found she did not have a reasonable explanation for the delay and barred her claim.

On appeal to the Divisional Court, the appellant argued the adjudicator erred in law by failing to address a prior LAT decision with similar facts.

The Divisional Court dismissed the appeal, holding that an administrative tribunal's failure to follow or expressly distinguish its own prior decisions does not constitute an error of law, and the adjudicator's weighing of the reasonable explanation factors was a question of mixed fact and law not subject to appeal.

The plaintiff brought a motion to set aside a Registrar's order dismissing her personal injury action for delay.

The action arose from a 2016 fall at a bus stop.

Despite a prior order extending the time to set the action down for trial, plaintiff's counsel inadvertently failed to diarize the new deadline, leading to the administrative dismissal.

The court applied the contextual test for setting aside a dismissal order, finding that the delay was adequately explained, counsel's inadvertence caused the missed deadline, and the defendant suffered no significant prejudice.

The motion was granted and the dismissal order was set aside, with no costs awarded to the plaintiff.

The applicant sought entitlement to a treatment plan for medical cannabis following a motor vehicle accident.

The respondent denied the plan, citing the applicant's history of substance abuse and an insurer's examination report concluding cannabis was not reasonable or necessary.

The Tribunal preferred the evidence of the applicant's physician, finding that a medically managed cannabis program was appropriate given the applicant's chronic pain from severe traumatic injuries and inability to use opioids.

The treatment plan was approved with interest, but the claim for a special award was dismissed as the insurer's reliance on its medical reports was not unreasonable.

The applicant requested a reconsideration of a preliminary issue decision which barred her from proceeding with her application for accident benefits due to a 14-month delay in submitting her OCF-1.

The applicant argued the Tribunal failed to properly weigh her personal circumstances as an unsophisticated person, erred in assessing prejudice to the respondent, and failed to address analogous case law.

The Vice-Chair dismissed the request, finding that the Tribunal had appropriately considered the applicant's circumstances and the prejudice to the insurer, and that the failure to cite a specific case did not constitute a material error of law or fact that would have changed the outcome.

The applicant was injured as a pedestrian in a motor vehicle accident but did not notify the insurer or submit an application for accident benefits (OCF-1) until 14 months later.

The insurer raised a preliminary issue that the claim was statute-barred due to the delay.

The Tribunal found that the applicant failed to provide a reasonable explanation for the delay, noting that her ignorance of the law and focus on her injuries did not justify the entire 14-month period.

Furthermore, the delay caused incurable prejudice to the insurer, as the applicant sustained multiple intervening injuries that prevented a contemporaneous assessment of the accident-related impairments.

The application was dismissed.

The plaintiffs moved for an order extending the time to set two motor vehicle accident cases down for trial until December 31, 2024.

All parties consented except the Ministry of Transportation and Carillion Canada.

The court found that the opposing defendants would not be prejudiced by the extension, whereas the plaintiffs and other defendants would suffer prejudice if forced to set the action down while an appeal regarding a refusals motion was pending.

The motion to extend the time was granted.

The Severance Plaintiffs brought a motion, supported by the O’Brien Plaintiffs and other defendants, to compel the Ministry of Transportation (HMK) to answer refusals and reattend examination for discovery in a highway negligence action.

HMK resisted, arguing it was not compellable for discovery under the Public Transportation and Highway Improvement Act (PTHIA) and that the questions were improper.

The court, following the precedent set by Longo v. The Queen and Stegenga v. Jans, found that HMK is not compellable for discovery in claims brought under the PTHIA, as the Act does not expressly provide for such rights.

The court also rejected the argument that HMK had attorned to the court's jurisdiction by voluntarily participating in discovery, noting that voluntary participation does not create a right to compel reattendance if no statutory right exists.

Consequently, the motion was dismissed.

The defendant in a slip and fall personal injury action brought a motion seeking production of the plaintiff's pre-accident medical and employment records.

The plaintiff claimed damages for injuries to her right ankle and left knee, while the defendant argued her pre-existing chronic back and ankle conditions were relevant to assessing her original position and future functioning.

The court ordered production of the records, but limited the scope to documents specifically relating to back, ankle, leg, and foot issues from 2001 or 2003 onwards, finding that her entire medical history was not relevant.

An employee of a daycare facility operated by the appellant municipality sustained a workplace injury from a slip and fall on a wet floor.

The municipality leased the daycare space from the respondent school board.

The school board was sued and brought a third party claim against the municipality, seeking a declaration that the municipality must defend and indemnify it under the terms of their commercial lease.

The motion judge ordered the municipality to defend and indemnify the school board.

On appeal, the municipality challenged the interpretation of the lease provisions governing insurance obligations and indemnification.

The Court of Appeal upheld the motion judge's decision, finding that the municipality's obligation to maintain comprehensive general liability insurance constituted an assumption of the relevant risk of loss, and that the lease provisions, read together, clearly allocated the risk to the municipality.

The appellant, a police officer who pleaded guilty to dangerous driving causing death in a 2008 collision that killed an 18-year-old, posted comments on Facebook in 2015 after completing his sentence.

The respondents, relatives of the deceased, commenced a defamation action.

The appellant brought a motion under s. 137.1 of the Courts of Justice Act to dismiss the action, arguing his posts related to matters of public interest.

The motion judge dismissed the motion, finding the posts did not relate to public interest but rather constituted an attempt to shift blame to the deceased and her family.

The motion judge awarded costs to the respondents despite the statutory presumption against such awards.

The Court of Appeal upheld both the dismissal of the s. 137.1 motion and the costs award.

The plaintiff, a teacher's aide, slipped and fell at a municipally run daycare located in a school.

The WSIB brought a subrogated claim against the landlord school board.

The school board brought a third-party claim against the tenant municipality for contribution and indemnity under their lease agreement.

Both parties brought motions to determine questions of law regarding the lease's insurance and indemnity clauses.

The court found that the tenant had contractually assumed the risk of damages arising from the maintenance of the premises and was required to defend and indemnify the landlord school board.

The plaintiffs brought a motion to compel the defendant municipality to answer questions refused during an examination for discovery.

The underlying action involved a trip and fall on a city sidewalk, and the plaintiffs sought to ask whether the city implemented new policies and procedures for street lighting inspections after the incident.

The court granted the motion, holding that questions regarding post-incident remedial measures are relevant at the discovery stage as they may provide evidence of reasonable care, reasonable standards, prior knowledge, or the feasibility of taking precautionary steps.

The plaintiffs successfully defeated the defendant's motion to dismiss their defamation action under the anti-SLAPP provisions of the Courts of Justice Act.

The plaintiffs sought partial indemnity costs.

The defendant argued that no costs should be awarded pursuant to the presumption in s. 137.1(8).

The court distinguished prior case law, finding the plaintiffs were individuals protecting their reputations, not a corporation using strategic litigation.

The court awarded the plaintiffs partial indemnity costs, fixing fees at $7,500 plus disbursements and HST.

The defendant, a former police officer convicted of dangerous driving causing death, made Facebook posts implying the deceased victim contributed to the fatal collision and criticizing her family.

The plaintiffs (the victim's family) sued for defamation, intentional infliction of mental distress, and intrusion upon seclusion.

The defendant brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss the action.

The court dismissed the motion, finding that the Facebook posts did not relate to a matter of public interest, but rather to the defendant's personal desire to shift blame and criticize private individuals.

Following a jury trial for damages arising from a motor vehicle accident, the defendant brought a threshold motion arguing the plaintiff's claims for non-pecuniary damages and future care costs were barred under s. 267.5 of the Insurance Act.

The court reviewed extensive expert medical evidence regarding the plaintiff's chronic pain.

Despite the lack of objective findings and the jury's low damage award, the trial judge found the plaintiff credible and concluded she suffered from chronic pain caused by the accident, meeting the threshold of a serious permanent impairment.

The defendant's motion was dismissed, and judgment was entered in accordance with the jury's verdict.

The defendant brought a motion during a jury trial for a ruling that the plaintiff's claims for future care costs and non-pecuniary damages were barred by the statutory threshold under the Insurance Act.

The plaintiff suffered a whiplash injury in a rear-end motor vehicle accident and subsequently developed chronic pain.

The defendant argued the plaintiff was malingering and exaggerating her symptoms for financial gain.

The trial judge dismissed the motion, finding the plaintiff credible and concluding she suffered a serious permanent impairment due to chronic pain caused by the accident, despite the jury ultimately awarding only $10,000 for general damages and $14,521.21 for past loss of income.

The defendants moved for summary judgment to dismiss the plaintiff's wrongful dismissal claim, arguing it was statute-barred under s. 97(2) of the Employment Standards Act because the plaintiff had previously filed an ESA complaint.

The plaintiff, who was terminated for alleged theft of prescriptions, also pleaded intentional torts including negligent misrepresentation and conspiracy.

The court dismissed the motion, finding that the ESA adjudication scheme was not intended to bar independent claims for intentional torts, and the civil action should proceed to trial where the trial judge can determine if the severance claim is barred alongside the independent causes of action.