L. Scott Smith

A scheduled three-hour special appointment hearing was adjourned due to a potential conflict of interest identified by counsel.

The court noted that despite the adjournment on consent, the matter was not fully ready for hearing as the plaintiff had not filed a factum and neither party had filed a compendium, both required by practice directions for special appointment hearings.

The endorsement emphasized the necessity of compliance with new mandated procedures for court filings, warning that non-compliance could result in the court declining to hear a matter.

The Applicant sought expenses following the settlement of his claim for an income replacement benefit arising from a motor vehicle accident.

The Insurer had initially denied the benefit, alleging the accident was staged, but agreed to pay after a jury in a bifurcated tort action found the accident was not staged.

The Arbitrator determined that the Applicant was entitled to expenses because he had to pursue arbitration to dispute the Insurer's position.

Taking a broad stroke approach, the Arbitrator awarded the Applicant $11,996.64 for legal fees, disbursements, and HST, rejecting claims for tort-related reports and fees.

The plaintiff sought costs for three contested motions in a class action regarding a listeria outbreak: a motion for leave, a certification motion, and a summary judgment motion.

The defendants argued for no costs or a reduced award, citing divided success and the novelty of the legal issues.

The court found the plaintiff was the successful party overall and that the issues were not novel.

The court awarded the plaintiff costs of $10,000 for the leave motion, $120,000 for the certification motion, and $20,000 for the summary judgment motion, plus disbursements and HST.

The applicant brought a motion to exclude engineering reports obtained by the insurer in a related unidentified driver claim, arguing that sharing the reports with the accident benefits adjuster breached a firewall and the applicant's privacy rights.

The arbitrator found that the firewall only prevents the transfer of medical information from the accident benefits file to the tort file, not vice versa.

Although the applicant's privacy rights were violated by sharing the information without consent, the arbitrator admitted the reports because they were relevant to the issues in dispute and the privacy interest was waived when there was a need to defend against a claim.

The appellant appealed a trial judge's interpretation of a will regarding a house.

The testatrix's marriage contract provided that her husband could live in the house after her death but would make no claim against her estate.

The Court of Appeal found the will ambiguous and considered extrinsic evidence, concluding that the testatrix left the house in trust consistent with the marriage contract, but subject to that, the house fell into the residue for her son.

The appeal was dismissed, and each party was ordered to bear their own costs.

The appellants appealed the dismissal of their action for breach of contract and negligent performance regarding the construction of a golf course reservoir.

On appeal, they brought a motion to amend their statement of claim to add a cause of action for negligent misrepresentation, which had not been pleaded at trial.

The Court of Appeal dismissed the motion, finding that the respondents would suffer non-compensable prejudice if the amendment were allowed post-trial.

The appeal was also dismissed, as the trial judge made no error in finding that the respondents complied with the amended agreement and that the agreement did not stipulate an average depth for the reservoir.

The insurer appealed an arbitrator's decision awarding the insured weekly income benefits beyond the 156-week mark and a $20,000 special award.

The insured had suffered physical and psychological injuries in a severe motor vehicle accident and was unable to continue working.

The Director's Delegate upheld the arbitrator's finding that the insured was continuously prevented from engaging in suitable employment, noting the insurer failed to provide evidence of alternative suitable jobs while the insured adduced substantial medical evidence of disability.

The special award was also confirmed because the insurer unreasonably terminated benefits and disregarded the recommendations of its own medical experts.

The appellant insurer appealed an arbitration decision allowing the respondent insured to proceed with her claim for income replacement benefits (IRBs).

The insured had returned to work within 104 weeks of the onset of her disability but later worked for more than 90 days after the 104-week mark before resigning due to her injuries.

The Director's Delegate dismissed the appeal, holding that under section 14(1) of the SABS-1994, an insured who returns to work within 104 weeks preserves their right to resume receiving IRBs if they are subsequently unable to continue working due to the accident, regardless of how long they worked after the 104-week mark.

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

She returned to work full-time for over a year before resigning due to her injuries.

The insurer argued her claim for resumed benefits was barred by section 14(2) of the Statutory Accident Benefits Schedule because she worked for more than 90 days.

The arbitrator held that section 14(1) governed because the applicant initially returned to work within 104 weeks of the onset of her disability.

Therefore, her entitlement to resume benefits was not affected by the duration of her return to work, and she was permitted to proceed to arbitration.

The applicant was injured in a motor vehicle accident and received statutory accident benefits until the insurer terminated them.

The applicant sought ongoing weekly income benefits and a special award.

The arbitrator found that the applicant was substantially unable to perform the essential tasks of her pre-accident employment and was continuously prevented from engaging in any suitable employment due to chronic pain and severe depression.

The arbitrator also ordered the insurer to pay a $20,000 special award because it unreasonably withheld benefits by ignoring the recommendations of its own medical experts.

The applicant was injured in a motor vehicle accident and received weekly income benefits until the insurer terminated them.

The applicant applied for arbitration, claiming an ongoing inability to perform her essential tasks as a Becker's store manager due to chronic pain and psychological factors.

The arbitrator found that the applicant's job was physically demanding and that she remained substantially unable to perform its essential tasks.

The arbitrator rejected the insurer's arguments that the applicant's disability was solely due to unrelated personal tragedies or pregnancy, and ordered the insurer to pay ongoing weekly income benefits, interest, and arbitration expenses.