Sean Giovannetti

This endorsement is the fourth in a series concerning an application for approval of a settlement for damages arising from two falls.

The court identified significant procedural deficiencies, including an improperly amended notice of application, non-compliant affidavit evidence from counsel's associate (failing to meet Rule 39.01(5) and Rule 7.08(4)(b) requirements), and an incomplete draft order.

The application was adjourned, and the applicants were ordered to formally amend their notice of application and file a compliant supplementary record, including proper affidavit evidence and a revised draft order addressing all necessary relief.

The applicant sought statutory accident benefits following a motor vehicle accident.

The Licence Appeal Tribunal found the applicant was entitled to reduced amounts for yoga therapy, occupational therapy services, and an attendant care needs assessment, finding them reasonable and necessary for symptom management and functional improvement.

The Tribunal denied claims for chiropractic and physiotherapy treatment, finding the applicant had reached maximum medical recovery for orthopaedic injuries.

The Tribunal also declined to order a special award under s. 10 of Regulation 664, finding the insurer's conduct was not excessive or imprudent.

The defendant moved for summary judgment to dismiss the plaintiff's claims for breach of fiduciary duty and punitive/aggravated damages, and for complete dismissal of the action.

The court granted partial summary judgment, dismissing the claims for breach of fiduciary duty and punitive/aggravated damages, finding no genuine issue for trial on these points.

The court declined to grant full summary judgment on the plaintiff's claim for the return of a $5,000 retainer, as it involved credibility assessments regarding the amount legitimately billed by the defendant.

Instead, a reference to an Assessment Officer was directed to determine the exact amount owing for the retainer.

Following the dismissal of the applicant's claims for statutory accident benefits after she abandoned the arbitration hearing, the insurer sought its expenses.

The insurer claimed $19,355.53 in fees and disbursements.

The arbitrator found the fees reasonable based on the legal aid tariff but disallowed $1,951.64 in travel-related expenses and associated HST, noting the insurer chose to retain out-of-town counsel without justification.

The applicant was ordered to pay fixed expenses of $18,403.89.

The applicant sought statutory accident benefits following a 2007 motor vehicle accident.

At the scheduled arbitration hearing, the self-represented applicant requested a further adjournment to retain counsel or, alternatively, a transfer to the Superior Court.

The arbitrator denied the adjournment, noting the applicant had been given almost a year to prepare or retain counsel and had failed to comply with production undertakings.

The arbitrator also found no jurisdiction to transfer the matter to the Superior Court.

After the adjournment was denied, the applicant left the hearing.

The arbitrator dismissed the claims, finding the applicant failed to meet her evidentiary burden.

The respondents were injured in a motor vehicle accident and entered into a settlement with their insurer, Aviva Canada Inc., regarding statutory accident benefits.

They later sought to rescind the settlement after the two-day cooling-off period, arguing the Settlement Disclosure Notice (SDN) did not comply with the Settlement Regulation.

The Arbitrator found the SDN deficient and allowed the rescission.

On appeal, the Director's Delegate confirmed the Arbitrator's decision, holding that the SDN failed to provide the mandated information regarding rescission in clear and straightforward language directed towards an unsophisticated person, and that this defect was not merely technical.

The applicant sought to proceed to arbitration for statutory accident benefits following a motor vehicle accident, arguing she had validly rescinded a settlement agreement.

The insurer argued the two-day cooling-off period had expired.

The arbitrator found that the disclosure notice provided by the insurer failed to comply with the Settlement Regulation because it did not clearly state the rescission period when the disclosure notice is signed before the release.

Consequently, the applicant was entitled to rescind the settlement under s. 9.1(5) of the Regulation and could proceed to arbitration.

The applicant sought to rescind a settlement agreement regarding statutory accident benefits arising from a motor vehicle accident.

The insurer argued the rescission was outside the two-day cooling-off period.

The arbitrator found that the disclosure notice provided by the insurer failed to comply with the Settlement Regulation because it did not clearly state the rescission rights when the disclosure notice is signed before the release.

Consequently, the applicant was entitled to rescind the settlement under s. 9.1(5) of the Regulation and may proceed to arbitration.

The appellant insurer appealed an arbitration decision that found the respondent's application for arbitration was not statute-barred.

The dispute centered on when the 90-day limitation period under s. 281.1(2)(b) of the Insurance Act commenced following a failed mediation.

The Director's Delegate held that the arbitrator erred in strictly applying the Rules of Civil Procedure to conclude that delivery of the mediator's report to the claimant's representative was required, finding instead that the period runs from the earlier of delivery to the insured or their representative.

Furthermore, the Delegate found that the arbitrator breached natural justice by denying the insurer the opportunity to cross-examine the respondent's legal assistant on her affidavit regarding the receipt date of the report.

The appeal was allowed, the arbitration decision rescinded, and the matter remitted for a new preliminary issue hearing.

The appellant insurer sought to appeal a preliminary arbitration decision which found that the respondent insured had not missed the 90-day limitation period to apply for arbitration after mediation.

The arbitrator had held that the limitation period only began to run upon service of the mediator's report on the insured's representative, and that deemed service by mail could not be relied upon without a post office stamp.

The Director's Delegate accepted the appeal from the preliminary order, finding that it raised significant issues of law regarding service and limitation periods that could resolve the entire dispute and avoid a lengthy arbitration.

However, the appellant's request for a stay of the arbitration proceeding was denied.