Edward Goldentuler

The insurer appealed an arbitrator's decision regarding jurisdiction to calculate interest and the quantum of expert witness expenses.

The parties agreed on the expense amounts and that the arbitrator had jurisdiction to determine interest.

The Director's Delegate resolved the remaining interest calculation disputes, finding that no interest accrues on a special award prior to the date of the order, and that an earlier expense award against the claimant could not be set off against benefits until the final order determining the cause was issued.

The appellant law firm appealed an order of a Small Claims Court Deputy Judge who dismissed the appellant's claim for unpaid legal fees, vacated a writ of seizure and sale, and awarded costs to the respondent.

The appellant had previously obtained default judgment against the respondent.

The respondent moved to set aside the default judgment, but the Deputy Judge instead struck the claim based on the Solicitors Act and the Limitations Act.

The Divisional Court held that the Deputy Judge had no jurisdiction to dismiss the claim while the default judgment stood, effectively acting as an appellate court over a fellow judge.

Furthermore, the respondent failed to provide a reasonable explanation for the delay in moving to set aside the default judgment.

The appeal was allowed, and the Deputy Judge's order was set aside.

The appellants retained the respondent lawyer to represent them in a motor vehicle accident claim.

The respondent issued the statement of claim more than two years after the accident.

The appellants subsequently sued the respondent for professional negligence.

The respondent successfully moved for summary judgment on the basis that the professional negligence action was statute-barred.

On appeal, the Court of Appeal set aside the summary judgment, finding that under s. 5(1)(a)(iv) of the Limitations Act, 2002, the appellants did not discover their claim against the respondent until the defendants in the underlying motor vehicle action amended their statement of defence to plead a limitations defence.

The former solicitor for the defendants brought a motion for leave to intervene as an added party in the plaintiff's default proceedings for the assessment of damages.

The solicitor argued he had an interest in the subject matter and could be adversely affected by the judgment, as the defendants had commenced a separate action against him for professional negligence.

The court dismissed the motion, finding the solicitor had no interest in the subject matter of the proceeding and failed to show he would be adversely affected.

The court also held that allowing the intervention would unduly delay and prejudice the plaintiff's rights.

The plaintiff brought a motion to set aside an earlier order dismissing the action for delay under the Rules of Civil Procedure.

The court considered whether it had jurisdiction to set aside the order and whether the plaintiff satisfied the criteria for setting aside a dismissal under the Reid v. Dow Corning Corp. and Scaini v. Prochnicki framework.

The court found the plaintiff failed to adequately explain extensive litigation delay, failed to show inadvertence in missing procedural steps, and failed to bring the motion promptly after learning of the dismissal.

The court also found actual prejudice to the defendant due to the passage of time and potential loss of relevant records.

Applying a contextual approach to the Reid/Scaini test, the court concluded the interests of justice did not justify setting aside the dismissal.

The applicant sought a determination that he was catastrophically impaired as a result of a 2001 motor vehicle accident.

In a previous arbitration, it was determined that the accident caused his impairments for the purpose of various statutory accident benefits.

The applicant argued that the issue of causation was res judicata and could not be relitigated in the current catastrophic impairment arbitration.

The arbitrator held that the specific issue of causation as it relates to assigning a percentage of whole person impairment for catastrophic impairment had not yet been adjudicated.

Therefore, the insurer was permitted to argue causation at the upcoming hearing.

The appellants insured a classic vehicle under a stipulated value policy and later claimed it was stolen.

After the vehicle was recovered, expert evidence at trial revealed it was not the rare, excellently preserved vehicle it was represented to be.

The jury dismissed the claim, finding the appellants gave false particulars to the prejudice of the insurer under s. 233(1)(a)(i) of the Insurance Act.

On appeal, the appellants argued the insurer waived the misrepresentation defence, failed to prove prejudice, and introduced unfair evidence suggesting fraud.

The Court of Appeal dismissed the appeal, finding no evidence of waiver or estoppel, sufficient evidence of prejudice, and that the evidence of false particulars was properly admitted.

The appellant insurer appealed an order requiring it to pay interest at the rate provided for by s. 46(2) of the Statutory Accident Benefits Schedule on a sum payable to the respondent insured but unpaid for 19 months.

The Court of Appeal dismissed the appeal, holding that the clear policy intent of s. 46 is compensatory, and it was entirely consistent with that policy to calculate the loss incurred due to the late payment pursuant to s. 46(2).

The appellants appealed an order granting summary judgment to the respondents in a medical malpractice action.

The Court of Appeal allowed the appeal, finding that the respondents had not filed an expert medical report and failed to meet their burden of showing no genuine issue for trial.

The Court also held that the limitation period defence raised an issue of discoverability that must go to trial.

The summary judgment was set aside and costs were awarded to the appellants.

The applicant sought judicial review of a decision by a FSCO Director's Delegate, who had revoked an Arbitrator's award of statutory accident benefits and ordered a new hearing on the basis of inadequate reasons.

The Divisional Court determined that the standard of review for the adequacy of reasons is correctness.

The Court found that the Arbitrator's reasons were sufficiently thorough to explain her rejection of the insurer's medical expert and her acceptance of the applicant's evidence.

The application for judicial review was allowed, the Director's Delegate's decision was set aside, and the Arbitrator's decision was restored.

Following an appeal, the appellants sought costs of the motion below on a substantial indemnity basis.

The Court of Appeal rejected the claim for substantial indemnity costs, noting the respondents' conduct was not unreasonable and the novel aspect of the claim.

However, as the appellants were partially successful in maintaining their right of action, the court awarded them partial indemnity costs of the motion below fixed at $10,000.

The appellants were injured in a motor vehicle accident and sought statutory accident benefits.

The insurer required them to undergo a Designated Assessment Centre (DAC) assessment, which concluded the requested treatments were not reasonable or necessary.

The appellants sued the DAC and its assessors for negligence and bad faith.

The motion judge struck the claims, finding no duty of care and applying witness immunity.

The Court of Appeal allowed the appeal in part, holding that while policy considerations preclude a claim for simple negligence against DAC assessors, it is not plain and obvious that claims based on bad faith or breach of a duty of neutrality should be struck, nor does witness immunity necessarily apply to their role as decision-makers.

The appellant appealed the dismissal of its motion for summary judgment, arguing the respondents' action was statute-barred.

The respondent was injured in a motor vehicle accident and commenced an action for both pecuniary and non-pecuniary damages more than two years after discovering her pecuniary loss, but within two years of discovering her injuries met the statutory threshold for non-pecuniary damages.

The Court of Appeal held that under the Bill 59 insurance regime, the legislature created separate causes of action for different heads of damages.

Therefore, the non-pecuniary damage claim was not statute-barred, and the appeal was dismissed.

The insured suffered a foot injury when he was struck by a vehicle while crossing a highway while impaired by alcohol.

Over a month later, he was found dead in an apartment, having bled to death from scalp lacerations sustained in a fall.

His spouse and daughters applied for statutory accident death and funeral benefits, arguing that his foot injury caused the fatal fall.

The arbitrator dismissed the application, finding that the insured fell because he was impaired by alcohol and that his foot injury did not materially or significantly contribute to his fall or death.

The arbitrator also determined that the insured's two daughters qualified as dependants under the Statutory Accident Benefits Schedule.

The appellant was injured in a motor vehicle accident and claimed income replacement benefits (IRBs) and other expenses, arguing she was unable to continue her employment as a live-in housekeeper.

The arbitrator awarded IRBs for a brief period following the accident but concluded the appellant failed to prove ongoing disability, relying on surveillance evidence and testimony that she stopped working for reasons unrelated to the accident.

On appeal, the Director's Delegate upheld the arbitrator's decision, finding no error in the evaluation of medical evidence, the admission of hearsay, or the reliance on surveillance videotapes.

The appeal was dismissed, and the arbitrator's reduction of the appellant's expenses due to delay was affirmed.