David Himelfarb

The applicant sought statutory accident benefits after being struck in the head by an industrial ceiling fan while standing on the roof of a trailer to perform routine maintenance.

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

The Tribunal applied the two-part purpose and causation test.

While the purpose test was met, the causation test failed because the ceiling fan was an intervening act that broke the chain of causation and was not a normal risk associated with maintaining a trailer.

The application was dismissed.

The applicant sought statutory accident benefits following a motor vehicle accident.

The parties resolved the catastrophic impairment and attendant care benefits issues prior to the written hearing.

The remaining issues were entitlement to guardianship application fees, interest, and an award for unreasonable delay.

The respondent agreed to pay the guardianship fees.

The Tribunal found the respondent unreasonably delayed payment of enhanced attendant care benefits and the guardianship fees, ordering an award of 25% and 18% respectively, plus interest.

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

The insurer designated him as catastrophically impaired but disputed the quantum of the benefit, arguing he was self-employed and entitled to $185.00 per week.

The applicant argued he was an employee entitled to $400.00 per week.

The Tribunal applied the Sagaz test and found that the applicant was an employee, as his hours and duties were controlled by the employer, he wore a company uniform, and he did not operate his own business.

The Tribunal ordered the insurer to pay income replacement benefits of $400.00 per week from October 20, 2020, ongoing, plus interest.

The defendant brought a motion to set aside a consent judgment settling a claim by the plaintiff and his parents.

The defendant argued that the settlement was reached by his insurer's appointed defence counsel without his personal lawyer's involvement, exposing him to liability exceeding his insurance policy limits through surviving crossclaims.

The court dismissed the motion, finding that the defence counsel had authority under the Ontario Automobile Policy to settle the claim, the settlement was within the scope of that authority, and the defendant failed to meet the legal test to set aside the consent judgment.

The court held that it was not in the interests of justice to set aside the judgment.

The plaintiffs brought eight proposed class actions against various long-term care (LTC) home owners and operators in Ontario, alleging systemic negligence and gross negligence in their response to the COVID-19 pandemic.

The court considered whether the claims met the certification criteria under section 5(1) of the Class Proceedings Act, 1992, particularly in light of the statutory immunity provided by the Supporting Ontario's Recovery Act (SORA).

The court certified six of the actions against the main corporate groups, finding that the pleadings disclosed a viable cause of action in gross negligence and that a class action was the preferable procedure.

However, the court dismissed the certification motions against independently owned homes and municipalities due to the lack of a collective enterprise and missing representative plaintiffs.

The defendant brought a motion for leave to appeal the order of Belobaba J. dated December 20, 2022, regarding a certification motion.

The Divisional Court granted leave to appeal and noted that the parties could apply to the Court of Appeal to have this appeal heard together with the pending appeal of the dismissal of the balance of the certification motion.

No costs were awarded as costs outlines were not filed.

The applicant, a truck driver, suffered severe burn injuries to his legs while sleeping in the cab of his parked transport truck with the heater running, ultimately requiring bilateral knee amputations.

The respondent insurer denied statutory accident benefits, arguing the incident did not meet the definition of an 'accident' under section 3(1) of the Schedule.

The Tribunal applied the purpose and causation tests, finding that sleeping in a truck cab and using its built-in heater are ordinary and well-known uses of the vehicle.

The Tribunal rejected the respondent's theories of intervening causes, such as a stroke or a kettle, and concluded the heater was the dominant feature of the injuries.

The Tribunal held the incident was an accident and ordered the matter to proceed to a substantive hearing.

During a dispute over statutory accident benefits, the insurer inadvertently disclosed privileged documents to the applicant's counsel.

The applicant's counsel reviewed the documents and subsequently brought a motion to amend the claim to include a Special Award based on the privileged information.

The insurer brought a cross-motion to remove the applicant's counsel from the record.

The arbitrator granted the insurer's motion, finding that the applicant's counsel had reviewed the privileged documents in detail and attempted to use the information to the insurer's detriment.

The applicant's motion to amend the claim was denied as an abuse of process, and the applicant's counsel was removed from the record.

The plaintiffs sought an interlocutory injunction requiring the franchisor to reinstate them in control of a pharmacy during a contractual management period following notice that the franchise relationship would not be renewed.

The dispute arose under an associate agreement governed by the Arthur Wishart Act and included interpretation of provisions allowing the franchisor to assume management control during the final 60 days before expiry.

The court held the requested relief was a mandatory injunction requiring the plaintiffs to demonstrate a strong prima facie case.

The plaintiffs failed to establish even a serious issue to be tried, as the agreement clearly permitted the franchisor to assume management upon expiry by effluxion of time.

Claims of irreparable harm were speculative and the balance of convenience favoured the franchisor.

The plaintiff appealed a trial judgment that awarded damages and punitive damages to the defendant arising from a commercial lease of truck trailers.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the trial judge's conclusion that the plaintiff breached its maintenance obligations.

The Court also upheld the trial judge's interpretation of the lease regarding early return of trailers and affirmed the punitive damages award, noting that specific damages need not be proven for a breach of contract to support punitive damages.

Leave to appeal the costs award was denied.