David Silverstone

The appellant appealed an arbitrator's denial of certain statutory accident benefits, and the insurer cross-appealed, arguing the arbitrator erred in applying the 'material contribution' test for causation rather than the 'but for' test.

The Ontario Trial Lawyers Association (OTLA) sought to intervene on the issue of causation.

The Director's Delegate granted OTLA's request to intervene, finding that the causation test in accident benefits cases is an important legal issue with broad implications, and that OTLA could provide helpful submissions from a broader perspective.

The Delegate also proposed inviting Canadian Defence Lawyers to intervene to ensure balance.

The insurer brought a motion for a stay of an arbitrator's order pending the determination of its appeal.

The arbitrator had ordered the insurer to pay for certain goods, services, and a catastrophic impairment assessment, finding that the insured's impairments were caused by a 2007 motor vehicle accident.

The insurer argued that the arbitrator applied the wrong legal test for causation ("material contribution" instead of "but for").

The Director's Delegate denied the request for a stay, finding that while the appeal raised a bona fide legal issue, the insurer failed to demonstrate that it would suffer imminent hardship if the stay were refused, and the potential hardship raised was purely speculative.

The appellants appealed a trial judge's finding that they were engaged in a joint venture involving repeated and dangerous violations of the Highway Traffic Act.

The Court of Appeal dismissed the appeal, holding that the trial judge properly instructed herself on the law of joint venture tort liability and that her finding was reasonable on the evidence.

Costs of $15,000 were awarded to the respondent insurer.

The plaintiffs were injured in motor vehicle accidents and sought statutory accident benefits from their insurers.

After disputes arose, the plaintiffs applied to the Financial Services Commission of Ontario (FSCO) for mediation.

When 60 days passed without a mediator being appointed, the plaintiffs commenced civil actions.

The insurers moved to strike or stay the actions, arguing that under s. 281(2) of the Insurance Act, mediation must actually be attempted and fail before an action can be brought.

The Court of Appeal dismissed the insurers' appeals, holding that the 60-day time limit in the legislation is mandatory, and mediation is deemed to have failed if not concluded within that period, freeing the insured to commence a court action.

The appellant appealed a jury verdict and a trial judge's ruling on a threshold motion following a motor vehicle accident.

The jury found the appellant 10% liable and awarded $4,000, which was reduced to zero due to income replacement benefits.

The trial judge dismissed the claim for non-pecuniary damages, finding the appellant did not sustain a permanent serious impairment.

On appeal, the appellant challenged the trial accommodations, evidentiary rulings, the threshold decision, the jury charge, the verdict, and alleged trial judge bias.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors in the trial judge's rulings and ample evidence to support the jury's verdict.

The applicant sought judicial review of a Director's Delegate decision that dismissed an appeal from an Arbitrator.

The Arbitrator had dismissed the applicant's arbitration proceeding because of a parallel civil action raising accident benefit claims from the same accident.

The Divisional Court found no error regarding reasonable apprehension of bias and held that the Director's Delegate reasonably upheld the Arbitrator's decision on choice of forum, noting the diseconomies of parallel proceedings.

The application for judicial review was dismissed.

The plaintiff was injured in a motor vehicle accident caused by an uninsured driver who was fleeing police.

The plaintiff sued the uninsured driver and her own insurer under the uninsured coverage provisions of her policy, but did not sue the police or municipality.

The insurer brought a third-party claim against the police and municipality, arguing that the plaintiff was disentitled from uninsured coverage because she failed to sue the insured joint tortfeasors.

The Court of Appeal dismissed the insurer's appeal, holding that the phrase 'entitled to recover' in the Uninsured Automobile Coverage Schedule means 'entitled to recover in fact', and an injured insured is not required to sue potential joint tortfeasors to access their uninsured coverage.

The respondent was injured in a motor vehicle accident caused by an uninsured driver who was being pursued by police.

She sued the uninsured driver and her own insurer under the uninsured coverage provisions of her policy, but did not sue the police or municipality.

The insurer brought a third-party claim against the police and municipality, and argued it was not liable to pay the respondent because she failed to sue the insured joint tortfeasors.

The Court of Appeal held that an injured insured is not required to sue insured potential joint tortfeasors to access uninsured coverage, and is only disentitled if the joint tortfeasor's insurer admits liability to pay or the insured obtains judgment against them.

The appeal was dismissed.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits.

The insurer denied the claim under section 59(1) of the Schedule, arguing the applicant was a Schedule 1 employee entitled to workers' compensation.

At the preliminary issue hearing, the insurer requested an adjournment to apply to WSIAT for a determination on the applicant's employment status.

The arbitrator denied the adjournment, finding no valid reason to stay the proceeding sine die when the insurer had ample notice to make the WSIAT application earlier.

Following the refusal, the parties consented to withdraw the preliminary issue.

The applicant was injured in a motor vehicle accident and sought income replacement benefits, housekeeping benefits, and payment for treatment.

The insurer terminated benefits based on medical assessments indicating full recovery.

The arbitrator dismissed the application, finding the applicant failed to prove she was substantially unable to perform her pre-accident employment or housekeeping duties.

The arbitrator preferred the insurer's medical evidence, noting the applicant's lack of supporting medical records, inconsistent testimony, and surveillance evidence showing her working.

The insurer appealed an arbitrator's order requiring it to produce all current and future surveillance information and supporting documentation regarding the claimant.

The Director's Delegate allowed the appeal, finding that under Rule 40.1 of the Dispute Resolution Practice Code, an insurer's obligation to disclose surveillance materials only arises when it decides to rely on that evidence at the hearing.

The arbitrator erred in applying a balancing approach to litigation privilege and in finding that she had unfettered discretion to order early production.

In a dispute over statutory accident benefits, both parties brought motions for the production of documents.

The insurer sought the applicant's employment and tax records to test the reliability of medical reports regarding work-related limitations.

The arbitrator ordered the applicant to produce employment records related to collateral medical benefits from one year pre-accident to the present.

The applicant sought the immediate production of all surveillance evidence obtained by the insurer.

The arbitrator held that surveillance information is subject to early disclosure to facilitate dispute resolution, finding that the applicant's interest in knowing the nature of the surveillance trumped the insurer's litigation privilege.

The insurer was ordered to produce existing and future surveillance information within 30 days.

The applicant was seriously injured in a motor vehicle accident and received statutory accident benefits for 156 weeks before the insurer terminated them.

She sought reinstatement of weekly income benefits and housekeeping expenses, as well as reimbursement for prescriptions.

The arbitrator found that the applicant suffered from chronic pain syndrome and depression, and that her honest belief in her disability rendered her incapable of returning to work, entitling her to ongoing weekly benefits.

However, the arbitrator found she was capable of performing more household tasks than she admitted and reduced her housekeeping benefits to five hours per week.

Prescription expenses were awarded in full.