Linda Matthews

The defendant insurance company brought a motion to dismiss the plaintiff's action for delay, arguing that the plaintiff's inordinate and inexcusable delay in advancing the litigation created a substantial risk that a fair trial would not be possible.

The plaintiff brought a cross-motion to restore the action to the trial list and to compel the defendant to attend examination for discovery.

The court found that while delay was inordinate, it was excusable because the defendant's former counsel was primarily responsible for the delay by failing to serve a sworn affidavit of documents despite three court orders.

The court found no non-compensable prejudice to the defendant and restored the action to the trial list.

The plaintiff's motion to compel discovery was dismissed to avoid further delay.

The applicant, a self-employed bicycle delivery person, was injured in a motor vehicle accident and sought a determination of catastrophic impairment under criterion 8 of the Statutory Accident Benefits Schedule.

The Licence Appeal Tribunal assessed the applicant's mental and behavioural impairments across four spheres of function.

Preferring the evidence of the applicant's experts, the Tribunal found the applicant sustained marked impairments in activities of daily living, social functioning, concentration, persistence and pace, and adaptation.

The Tribunal concluded the applicant suffered a catastrophic impairment.

The appellant appealed a Licence Appeal Tribunal decision finding he did not suffer a catastrophic impairment from a 2016 motor vehicle accident.

The appellant argued the Tribunal erred in its treatment of expert and lay evidence, relied on hearsay, and misapplied the causation test.

The Divisional Court dismissed the appeal, finding the Tribunal reasonably rejected the appellant's expert evidence after the expert recanted his opinion upon being presented with contradictory medical and benefits records.

The court also held that hearsay evidence is admissible before the Tribunal and the causation test was properly applied.

The applicant sought a non-earner benefit following a motor vehicle accident.

The respondent denied the benefit and brought a motion to dismiss the claim for failure to comply with a notice of examination.

The Tribunal proceeded with the hearing and found that the applicant failed to meet her burden of proof, as she provided no medical or documentary evidence to support her claim of a complete inability to carry on a normal life.

The application was dismissed.

The applicant requested a reconsideration of a decision finding he did not sustain a catastrophic impairment from a motor vehicle accident.

The applicant argued the adjudicator violated procedural fairness by relying on hearsay evidence from medical reports and erred in finding his expert witness recanted his opinion.

The Tribunal dismissed the request, finding no breach of procedural fairness as the hearsay evidence was only one of many factors considered and the applicant had the opportunity to cross-examine on it.

The Tribunal also found no error regarding the expert witness, who admitted during cross-examination that his opinion was inaccurate because he had not reviewed crucial medical records that contradicted the applicant's self-reports.

The applicant requested a reconsideration of a previous Licence Appeal Tribunal decision which found she did not sustain a catastrophic impairment.

The applicant argued the tribunal made an error of fact by stating the respondent's position was that her psychological impairments were pre-existing, when the respondent had conceded some impairments were caused by the accident.

The tribunal dismissed the request, finding that even if an error of fact was made regarding causation, it would not change the outcome because the original decision was based solely on the applicant's level of function not meeting the threshold for a catastrophic impairment.

The appellant filed a notice of appeal from a Licence Appeal Tribunal (LAT) decision denying a request to adjourn a scheduled hearing.

The appellant argued the appeal automatically stayed the LAT proceedings under the Statutory Powers Procedure Act.

The Divisional Court dismissed the appeal pursuant to Rule 2.1, confirming it has no jurisdiction to hear interlocutory appeals from the LAT.

The court noted the dismissal was without prejudice to an application for judicial review but declined to grant an interim stay of the LAT hearing.

The applicant sought a determination that he sustained a catastrophic impairment due to a mental and behavioural disorder following a 2016 motor vehicle accident.

The Tribunal found the applicant was not credible, noting significant inconsistencies between his testimony, pre-accident medical records, and surveillance video showing him performing activities he claimed he could not do.

The Tribunal concluded the applicant failed to prove on a balance of probabilities that his psychological impairments and functional limitations were caused by the accident, as he had significant pre-existing conditions and was completely disabled prior to the accident.

The application was dismissed, and the respondent's request for costs was denied.

The applicant sought a determination that she sustained a catastrophic impairment due to mental or behavioural disorders following a motor vehicle accident.

The Tribunal found that the applicant failed to prove a marked impairment in the adaptation domain.

The Tribunal placed limited weight on the applicant's experts because the applicant had concealed significant functional activities, such as independently driving to Nova Scotia and planning a wedding, and because her psychiatrist strayed into advocacy.

The application was dismissed, and no award for unreasonable delay was granted.

The Tribunal also ordered the applicant's name initialized to protect her safety as a survivor of intimate partner violence.

The applicant sought a determination of catastrophic impairment based on a mental and behavioural disorder (Criterion 8) following a 2019 motor vehicle accident.

The applicant relied on the opinions of an ABI specialist and an orthopaedic surgeon, neither of whom performed formal catastrophic impairment testing.

The respondent presented surveillance evidence showing the applicant performing activities of daily living unassisted, contradicting her self-reports, and a psychiatric assessment concluding she suffered only moderate impairments.

The Tribunal found the applicant failed to meet her burden of proving a catastrophic impairment, noting inconsistencies in her reporting and the lack of qualified psychological or psychiatric assessments supporting her claim.

The application was dismissed.

The applicant sought to dispute the denial of an income replacement benefit following a motor vehicle accident.

The respondent brought a motion arguing the application was filed after the two-year limitation period under s. 56 of the Schedule.

The applicant conceded the delay but requested an extension under s. 7 of the LAT Act.

Factoring in the COVID-19 limitation period suspension, the Tribunal found the delay was only eight days.

Applying the four-factor test, the Tribunal found the applicant demonstrated a bona fide intention to appeal within the time limit, the delay was not excessive, there was an arguable case on the merits, and the prejudice to the respondent was not significant enough to deny relief.

The Tribunal granted the extension, allowing the applicant to proceed with her dispute.

The applicant sought reconsideration of a decision finding she did not suffer a catastrophic impairment following an ATV accident.

She argued the adjudicator misapplied the 'but for' test, misinterpreted her mental health history, and failed to consider the accident's effect on her employment.

The Vice-Chair dismissed the request, finding the applicant was improperly attempting to reweigh the evidence.

The original adjudicator properly applied the causation test, reasonably relied on the respondent's psychiatric expert regarding the applicant's pre-existing autism spectrum disorder, and was entitled to place less weight on the applicant's psychological and occupational therapy evidence because those experts lacked critical pre-accident records.

The applicant sought a determination that she sustained a catastrophic impairment due to a mental or behavioural disorder following an ATV accident.

The central issue was whether she suffered a marked impairment in the domain of adaptation.

The Tribunal found that the applicant's psychological impairments, including autism spectrum disorder and depression, were pre-existing and not caused by the accident under the 'but for' test.

Furthermore, the Tribunal preferred the respondent's psychiatric evidence, concluding that the applicant's level of function was compatible with a mild impairment rather than a marked one.

The application was dismissed, and claims for an award and interest were denied.

During a hearing to determine if the applicant was catastrophically impaired, the respondent objected to the applicant's expert witness testifying to matters beyond her original report, specifically a late-served rebuttal report.

The Tribunal ruled that the expert could testify to all relevant matters, including the new report.

The Tribunal found that under the Statutory Powers Procedure Act, it has broad discretion to admit relevant evidence, and the probative value of the testimony outweighed any prejudice to the respondent, which could be cured by allowing cross-examination and reply evidence.

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

The insurer denied certain medical benefits and requested a preliminary issue hearing to determine if the applicant was barred from proceeding with her application because she failed to attend section 44 insurer's examinations.

The Tribunal found that the applicant failed to attend multiple scheduled examinations without a reasonable explanation.

Consequently, the applicant was barred from proceeding with her application under section 55 of the Schedule.

The plaintiff sued multiple defendants for a serious workplace injury sustained when her arm was caught in a turret winder.

The defendant manufacturer, GN Gear, brought a motion for summary judgment to dismiss the plaintiff's claim and the co-defendants' crossclaims against it, arguing it only manufactured the machine to specifications and had no role in its design.

The court dismissed the motion against the plaintiff, finding genuine issues for trial regarding the interwoven nature of the design and manufacturing process due to reverse engineering, and the risk of inconsistent findings if partial summary judgment were granted.

The unopposed motion to dismiss the crossclaims was granted.

The applicant was injured in a motor vehicle accident and sought income replacement benefits (IRBs) and the cost of a multi-disciplinary assessment from her insurer.

The insurer terminated IRBs after 104 weeks and denied the assessment costs.

The Licence Appeal Tribunal found that the applicant suffered a substantial inability to perform the essential tasks of her pre-accident employment as a restaurant crew member due to unresolved left shoulder tendonitis, entitling her to IRBs up to the 104-week mark.

However, the Tribunal concluded she did not meet the post-104 week test of a complete inability to engage in any suitable employment, relying on surveillance evidence and vocational assessments showing she could perform alternative jobs.

The Tribunal also awarded partial costs for the multi-disciplinary assessment, finding the occupational therapy, orthopedic, and vocational components reasonable and necessary, while denying the psychological and neurological components.

The applicant sought production of the respondent's adjuster's log notes from the date of a prior FSCO application to the date the current application was filed with the Tribunal.

The respondent claimed the notes were protected by litigation privilege.

The Tribunal found that while litigation was contemplated for some claims as of the FSCO application date, the respondent failed to establish that all subsequent log notes were created for the dominant purpose of litigation.

The Tribunal ordered the respondent to produce the log notes, subject to redactions for irrelevancy, solicitor-client privilege, and reserves, and to provide particulars for each redaction.

The applicant sought income replacement benefits (IRBs) following a motor vehicle accident.

The insurer denied the benefits and the parties subsequently reached a partial settlement for IRBs up to the 104-week mark.

Years later, the applicant sought post-104 week IRBs, which the insurer denied based on the original limitation period.

The Tribunal found that the appeal was filed beyond the limitation period, but granted an extension under s. 7 of the Licence Appeal Tribunal Act.

The Tribunal reasoned that the language of the settlement agreement induced a bona fide belief that the applicant could still claim post-104 week benefits, and the balance of prejudice favoured allowing the appeal to proceed.

The appellant insurer appealed a Licence Appeal Tribunal (LAT) preliminary decision finding that the respondent was a resident of Ontario at the time of his motor vehicle accident in Alberta, and thus an 'insured person' under the Statutory Accident Benefits Schedule.

The respondent had been living and working in Alberta for more than 60 days prior to the accident.

The Divisional Court dismissed the appeal, holding that the LAT reasonably applied a flexible, context-specific test for 'ordinary residence' rather than a strict physical presence test, and that the LAT's weighing of the evidence regarding the respondent's ties to Ontario was reasonable.