Murray Tkatch

The plaintiffs sought court approval under Rule 7 for a proposed settlement affecting minor plaintiffs, Kofi Obeng and Nana Asiedu Obeng, who had Family Law Act claims for loss of care, guidance, and companionship.

The proposed settlement provided no damages to the minors, based on counsel's assertion that the primary plaintiff's injuries did not impact her ability to provide care.

The court dismissed the motion without prejudice, finding the materials deficient and contradictory to the assertion that the minors had no valid claim exceeding the statutory deductible, particularly given the catastrophic impairment report of the primary plaintiff.

The Applicant sought reconsideration of a Tribunal order dismissing her application for failing to attend a case conference.

The Applicant argued that a case management officer's email created a legitimate expectation of a rescheduled hearing, that the Tribunal erred in law by not personally serving her under the Statutory Powers Procedure Act, and that the Tribunal made a factual error regarding her attendance at a previous conference.

The Tribunal dismissed the reconsideration request, finding no breach of procedural fairness, as the officer's statement lacked certainty and the Applicant had clear notice of the consequences of non-attendance.

The Tribunal also held that service on counsel constituted reasonable notice under the SPPA and that the factual error was not significant enough to alter the outcome.

The applicant sought non-earner benefits and medical benefits following a motor vehicle accident.

The insurer denied the claims, arguing the applicant's injuries fell within the Minor Injury Guideline (MIG).

The Tribunal found that the applicant sustained a minor injury and did not suffer a complete inability to carry on a normal life.

However, because the insurer failed to comply with the notice provisions under sections 36 and 38 of the Schedule, the applicant was awarded non-earner benefits for the period of non-compliance (January 18 to April 30, 2019) and an attendant care assessment plan incurred during the period of non-compliance.

The remaining assessment plans were denied as not reasonable and necessary, and the claim for an award was dismissed.

The applicant sought judicial review of an arbitrator's decision dismissing his claim for non-earner and housekeeping benefits under the Statutory Accident Benefits Schedule following a motor vehicle accident.

The applicant argued that the insurer's failure to promptly respond to his application created a deemed entitlement to benefits, and that the arbitrator erred in applying causation principles given his multiple accidents.

The Divisional Court dismissed the application, finding the arbitrator reasonably concluded that the insurer's delay did not create a deemed entitlement where the insured failed to prove entitlement.

The court also upheld the arbitrator's factual findings that the applicant failed to prove the accident caused his impairments or a complete inability to carry on a normal life, noting his condition was essentially unchanged from pre-existing injuries.

The appellant appealed a trial judgment finding it liable as an occupier of a municipal sidewalk under the Occupiers' Liability Act.

The respondent slipped and fell on ice at the entrance to the appellant's patio, which opened onto the sidewalk.

The trial judge found the appellant was an occupier of the sidewalk portion at the patio threshold based on its exclusive use of the patio, maintenance of the entrance area, and direction of customer traffic.

The Court of Appeal upheld the finding on a narrower basis, confirming that the appellant was an occupier of only the threshold portion where the fall occurred, not the entire sidewalk area.

The court rejected arguments that the finding undermined the principle that mere snow and ice clearing does not create occupier status, and dismissed the appeal with costs.

The applicant was injured in a motor vehicle accident and received income replacement benefits (IRB) until returning to work.

Over nine years later, the applicant sought reinstatement of the IRB.

The insurer argued the claim was statute-barred, relying on a 2006 Explanation of Benefits (EOB) as a denial, and alternatively argued the applicant failed to apply within 104 weeks.

The Tribunal found the EOB was a statement of statutory entitlement under the Pre-Approved Framework, not a clear and unequivocal denial.

The Tribunal also found no requirement to apply within 104 weeks, and regardless, the initial claim was made within that period.

The preliminary motion to dismiss was denied.

The appellant, a pedestrian struck by a vehicle, appealed an Arbitrator's decision denying his claims for non-earner and housekeeping benefits.

He argued that the insurer's delay in denying the benefits created a presumption of entitlement, that hospital records should have been accepted as prima facie proof of causation, and that the Arbitrator misapplied the causation test.

The Director's Delegate dismissed the appeal, finding that the appellant was still required to prove entitlement despite any procedural breach by the insurer, that the hospital records were hearsay regarding causation, and that the Arbitrator correctly applied the causation tests.

The insurer sought its expenses after successfully defending the applicant's claim in its entirety.

The applicant argued that no expenses should be payable or that they should be reduced because the insurer unreasonably attempted to revive a preliminary issue regarding time limits after having settled it.

The arbitrator agreed that the insurer's conduct unnecessarily prolonged the hearing.

As roughly one-third of the hearing time was devoted to the preliminary matters decided against the insurer, the arbitrator awarded the insurer two-thirds of its claimed legal expenses, plus full disbursements and HST, totaling $16,144.23.

The applicant sought non-earner and housekeeping benefits following a motor vehicle accident.

The insurer initially conceded a limitations defence but attempted to withdraw the concession on the eve of the hearing; the arbitrator found this inequitable based on promissory estoppel.

On the merits, the arbitrator found the applicant failed to prove causation under either the 'but for' or 'material contribution' tests, noting the applicant's extensive pre-existing physical and psychological conditions from prior accidents and assaults.

The claims for non-earner and housekeeping benefits were dismissed.

The plaintiff slipped and fell on ice near a commercial coffee shop.

During the jury trial, the court was asked to rule on whether the coffee shop was an occupier of its outdoor patio and the adjacent municipal sidewalk.

The court held that the patio was not a common element under the lease and that the coffee shop was its sole occupier.

Furthermore, by constructing a fence that funnelled customers across a specific portion of the municipal sidewalk and by actively clearing and salting that area, the coffee shop assumed sufficient control over the sidewalk to be considered an occupier under the Occupiers' Liability Act.

The appellant was injured in a fight with another passenger on a TTC bus and subsequently required a leg amputation.

He applied for statutory accident benefits, claiming the incident was an 'accident' under the SABS.

The Arbitrator found that the bus was merely the location of the fight and its use or operation did not directly cause the impairment.

On appeal, the Director's Delegate upheld the Arbitrator's decision, applying the Amos and Chisholm tests, and concluding that an assault on a bus is not a normal incident of risk created by the use or operation of a vehicle.

The appeal was dismissed.

The applicant sought statutory accident benefits after fracturing his hip in a fall at an intersection.

He alleged he was startled and fell when a turning bus nearly struck him in a pedestrian crosswalk.

The insurer denied benefits, arguing no 'accident' occurred because there was no physical contact between the bus and the applicant.

The Arbitrator found that physical contact is not required if the use or operation of the vehicle directly caused the impairment.

The Arbitrator concluded that the approaching bus startled the applicant, causing him to lose his balance and fall, thereby meeting the definition of an 'accident' under section 2(1) of the Schedule.

The applicants sought judicial review of a decision by a Director's Delegate of the Financial Services Commission of Ontario, which upheld an arbitrator's denial of statutory accident benefits.

The applicants argued breaches of procedural fairness, incorrect application of the burden of proof, improper judicial notice, and failure to accept uncontradicted medical evidence.

The Divisional Court dismissed the application, finding the Delegate's decision reasonable in all respects.

The court affirmed that the burden of proof rests on the insured to establish entitlement to benefits and does not shift to the insurer.

The insurer brought a motion to adjourn the scheduled arbitration hearing on the grounds that it intended to seek a stay of the arbitration in favour of a companion tort action, for practical reasons related to mediation, and because the applicant failed to comply with her production obligations.

The arbitrator rejected the first two grounds due to the insurer's delay in pursuing them.

However, the arbitrator granted the adjournment because the applicant had failed to provide agreed-upon productions, finding it would be unfair to the insurer to proceed to a hearing under those circumstances.

The appellants appealed an arbitrator's decision denying them statutory accident benefits.

The appeals were dismissed.

The respondent insurer subsequently sought its legal expenses for the appeals.

The Director's Delegate found that the appeals lacked merit and raised numerous unfounded issues, justifying an award of expenses to the respondent.

The requested quantum was reduced due to excessive written submissions, resulting in a total costs award of $6,570.31, split equally between the two appellants.

The Appellants appealed an arbitrator's decision dismissing their claims for income replacement benefits and a special award following a motor vehicle accident.

The Appellants argued that the arbitrator erred in law by failing to apply the correct standard of proof, shifting the onus of proof, making palpable and overriding errors in reviewing evidence, and relying on hearsay evidence.

The Director's Delegate dismissed the appeals, finding that the arbitrator applied the correct standard of proof, the onus remained on the Appellants to prove entitlement, and the arbitrator's credibility findings were supported by the evidence.

The Delegate also found no breach of procedural fairness, apprehension of bias, or error in admitting hearsay evidence or hearing the matters together.

The applicant applied for statutory accident benefits following a motor vehicle accident.

After failing to attend a pre-hearing, mediation, and scheduled appointments, his counsel brought a motion to be removed from the record, which was granted.

The insurer moved to dismiss the arbitration due to the applicant's non-attendance and failure to advance his claim.

The arbitrator dismissed the arbitration, finding that the applicant had effectively abandoned his claim after failing to respond to notices and a newspaper advertisement.

The applicant was ordered to pay the insurer's reasonable expenses.

The appellants brought a motion to compel the respondent insurer to pay for the transcripts of the arbitration hearing, arguing they were impecunious and the transcripts were necessary for their appeal.

The Director's Delegate dismissed the motion, finding that while the appellants could not afford the transcripts, they failed to demonstrate that the transcripts were necessary for the conduct of the appeal, which is restricted to questions of law, or that they would be unable to proceed without them.

Following the dismissal of the applicants' claims for statutory accident benefits, the insurer sought $33,500 in expenses.

The arbitrator found that while the insurer was completely successful in defending the claims, it had spent excessive time pursuing an unproven conspiracy theory regarding a fraud ring.

The arbitrator reduced the allowable preparation and hearing time, disallowing expenses for the days devoted entirely to the conspiracy theory.

The applicants were ordered to pay a total of $12,013.36 in expenses, apportioned between them based on their respective involvement in the hearing.

The appellants appealed an arbitrator's decision dismissing their claims for income replacement benefits and a special award.

They brought a motion to stay the arbitrator's orders pending the appeal and requested that their appeals be combined.

The Director's Delegate combined the appeals as they arose from the same accident and involved the same parties and counsel.

However, the motion for a stay was dismissed because the arbitrator had not ordered the payment of any monies, meaning there was currently nothing to stay.