M. Dahab

The defendants brought a motion to exclude a SPECT scan from being shown to the jury by the plaintiff's expert neurologist, arguing it was novel science and unreliable for diagnosing a mild traumatic brain injury.

The court dismissed the motion, distinguishing this case from previous decisions where SPECT scans were used as the sole diagnostic tool by a nuclear medicine specialist.

The court permitted the clinical neurologist to refer to the SPECT scan because it was used as one of many diagnostic tools to confirm a clinical diagnosis, and the nuclear medicine specialist's opinions were redacted to prevent undue influence on the jury.

The plaintiff was struck by a TTC bus and awarded damages for past loss of income at trial.

The defendants brought a motion to deduct the non-earner benefits (NEBs) the plaintiff received under the Statutory Accident Benefits Schedule from the tort award for income loss, arguing that recent case law and legislative changes placed NEBs in the 'income loss silo'.

The court dismissed the motion, holding that it remained bound by the Court of Appeal's decision in Walker v. Ritchie, which established that NEBs compensate for loss of enjoyment of life and are not deductible from income loss awards.

The court found that obiter comments in a subsequent Court of Appeal decision did not overturn this established principle.

The plaintiff was struck by a transit bus while crossing the street, sustaining multiple fractures to her left ankle and knee.

Following a jury trial where the plaintiff was awarded $175,000 in general damages, the defendants brought a motion arguing the plaintiff did not meet the statutory threshold under s. 267.5(5) of the Insurance Act.

The court reviewed the medical evidence, preferring the plaintiff's orthopaedic expert who found objective evidence of post-traumatic osteoarthritis and permanent restricted range of motion.

The court concluded the plaintiff sustained a permanent and serious impairment of an important physical function that substantially interfered with her activities of daily living.

The defendants' motion was dismissed, entitling the plaintiff to the jury's award for non-pecuniary damages.

The applicant insurer sought judicial review of a FSCO Director's Delegate's decision upholding an arbitrator's award of non-earner benefits to the respondent, who was struck by a bus.

The insurer argued the arbitrator failed to apply the 'continuously prevents' aspect of the test for non-earner benefits.

The Divisional Court dismissed the application, finding that the Director's Delegate reasonably concluded the arbitrator had addressed the test in light of the evidence and the specific arguments raised by the parties at the arbitration.

The defendants in a motor vehicle accident tort action brought a motion to compel the plaintiff to attend orthopaedic and neurological defence medical examinations.

The plaintiff opposed the motion, arguing that the defendants were issue estopped because the Licence Appeal Tribunal had already found her to be catastrophically impaired under the Statutory Accident Benefits Schedule (SABS).

The court rejected the issue estoppel argument, noting the different thresholds between SABS and tort actions and the 'firewall' between the two processes.

The court granted the orthopaedic examination as the plaintiff had put her physical condition in issue, but denied the neurological examination because the plaintiff had not claimed neurological impairment.

Following an arbitration where the applicant was largely successful in claiming statutory accident benefits, the parties could not agree on the quantum of expenses.

The applicant sought $43,405.26 in costs, while the insurer argued for a significantly reduced amount due to alleged delays, improper conduct, and excessive disbursement claims.

The arbitrator found that both parties contributed to procedural frustrations and applied a broad stroke approach, reducing certain excessive disbursements and correcting the law clerk's hourly rate.

The insurer was ordered to pay $38,000.00 in expenses.

The plaintiff purchased a used 2006 BMW from the defendant dealer.

Shortly after purchase, the vehicle experienced significant mechanical issues, including excessive oil consumption and computer malfunctions.

The plaintiff sued for breach of contract, claiming the vehicle was not of merchantable quality.

The court found that because the 'as is' box on the purchase agreement was not checked, the implied warranties under the Sale of Goods Act and Consumer Protection Act applied.

The court held the vehicle was not reasonably fit for its purpose and awarded the plaintiff $11,606.21 for repair estimates and inspection costs, dismissing claims for rental car and insurance expenses.