Martin P. Forget

The applicant requested a reconsideration of a decision that found she was not catastrophically impaired under criterion 8.

The applicant argued the Tribunal acted outside its jurisdiction, breached procedural fairness by limiting her testimony and allegedly diagnosing malingering, and erred in law by failing to follow the Pastore framework.

The Vice-Chair dismissed the request, finding that the original decision correctly applied the 'but for' test for causation, offered reasonable accommodations during testimony, and properly followed the legal tests without making an unauthorized medical diagnosis.

The applicant, who had pre-existing autism, was involved in a motor vehicle accident while riding her bike.

She sought a determination of catastrophic impairment and various statutory accident benefits.

The respondent denied the benefits, arguing her impairments were solely related to her pre-existing autism.

The Tribunal found that the accident was a necessary cause of her worsened psychological condition, leading to an extreme impairment in adaptation.

The applicant was deemed catastrophically impaired and awarded ongoing attendant care benefits and partial occupational therapy costs, but denied past attendant care benefits and other treatment plans.

Following their successful defence against a motion to add them as third parties, the Proposed Defendants sought partial indemnity costs.

The moving party, Security National, argued the Proposed Defendants were merely intervenors and not entitled to costs.

The court found that the Proposed Defendants had standing and, even if considered intervenors, met the exception to the general rule against awarding costs to intervenors due to their significant interests and necessary participation.

The court awarded partial indemnity costs of $5,328 to People on Bikes and Gord Townley, and $2,667 to His Majesty the King.

The insurer appealed a Licence Appeal Tribunal (LAT) decision finding that the insured's election of benefits under s. 31(5) of the Statutory Accident Benefits Schedule was invalid due to the insurer's non-compliance with s. 32(2)(b).

The Divisional Court dismissed the appeal, holding that the LAT's factual findings regarding the insurer's non-compliance were not reviewable on a question of law.

The Court agreed that because the initial election was invalid, the insured had not made an election within the meaning of the SABS, and therefore the general prohibition against changing an election did not apply.

The plaintiff, Titus Steel Company Limited, sued its former Vice President, Wayne Hack, and his new companies (Progressive Armor), alleging breach of fiduciary duty, breach of employment duties (fidelity, loyalty, good faith), misappropriation of confidential documents, conversion, and willful misconduct/gross negligence.

The court found that Hack was not a fiduciary and therefore did not breach any fiduciary duties by competing or soliciting customers post-resignation.

However, Hack did breach his employment duties and committed conversion by copying, deleting, and retaining Titus's business records.

The court found no damages for breach of confidence or the employment breaches related to documents, as Titus failed to prove loss or unauthorized use of confidential information, and a prior payment covered recovery costs.

Claims of willful misconduct/gross negligence regarding two clients were also dismissed due to lack of proof or the employer's own inconsistent conduct.

The court ordered the return of all business records to Titus.

This is an appeal from an order dismissing a motion to set aside a noting in default.

The appellants (defendants in the original action) had repeatedly delayed filing a defence, despite extensions and changes in counsel.

The motion judge applied the principles for setting aside a noting in default, considering the full context, including the parties' behaviour and reasons for delay.

The Court of Appeal found no error in the motion judge's comprehensive analysis and dismissed the appeal, affirming that the plaintiff was entitled to proceed given the defendants' prolonged non-compliance.

This endorsement concerns costs following an 18-day jury trial where the action was dismissed.

The defendant sought substantial indemnity costs, citing the plaintiff's refusal of multiple settlement offers, 14 years of litigation delay, and egregious conduct, including threats made by his agent.

The self-represented plaintiff argued unfamiliarity with court processes.

The court awarded the defendant $120,927.02 in costs, applying a partial indemnity scale up to January 5, 2024, and a substantial indemnity scale thereafter.

The judge found the plaintiff's conduct, including rationalizing threats, causing excessive and unexplained delays, and failing to prepare for trial despite ample opportunity, warranted the higher scale of costs, emphasizing the need to correct behaviour and discourage ill-founded litigation.

This motion addressed Security National's request to add additional defendants (People on Bikes, Gordon Townley, and His Majesty the King in Right of Ontario) to an existing third-party claim, almost six years after the incident and after the expiry of the statutory limitation period.

The court determined that the applicable rule for adding parties to an existing claim was Rule 5.04(2), not Rule 29.02(1.2), which required considering prejudice to both the plaintiff and the proposed new parties.

The court found that Security National failed to demonstrate that the information regarding the proposed defendants was not discoverable earlier with due diligence, thus prejudicing the proposed defendants due to the expired limitation period.

Furthermore, the court found that allowing the motion would cause significant delay and increased costs, resulting in actual prejudice to the plaintiff, Erin Townley, who has suffered serious injuries and seeks closure.

The court also noted the questionable merit of the claim against uninsured proposed parties.

Consequently, Security National's motion was denied.

The applicant sought statutory accident benefits following a 2015 motor vehicle accident, claiming catastrophic impairment under criterion 8 (mental or behavioural disorder) and entitlement to an income replacement benefit (IRB) and a chiropractic treatment plan.

The Tribunal dismissed the application, finding the applicant was not catastrophically impaired because her self-reported functional impairments were inconsistent with her history and objective findings, suggesting malingering or exaggeration.

The Tribunal also denied the IRB claim, finding the applicant failed to prove a complete inability to engage in employment, noting she had worked for 10-11 months post-accident.

Claims for the treatment plan, an award, interest, and costs were also dismissed.

The respondent insurer brought a motion to bar the applicant from proceeding with her application for statutory accident benefits under s. 55(1)2 of the Schedule.

The applicant had attended an initial psychiatric insurer's examination but left before it was completed, citing discomfort with the assessor.

The applicant subsequently refused to attend rescheduled examinations with different assessors, arguing they were too intrusive.

The Tribunal found that the insurer was entitled to a complete examination and that the applicant failed to provide a reasonable explanation for her non-attendance.

The motion was granted and the application was barred from proceeding.

The applicant requested a reconsideration of a Licence Appeal Tribunal decision that found his injuries fell within the Minor Injury Guideline (MIG) and denied his claim for ongoing Income Replacement Benefits (IRB).

The applicant argued the Tribunal breached procedural fairness, ignored new medical evidence, and erred in fact regarding the MIG and the IRB dispute period.

The adjudicator found no breach of procedural fairness and held that the new evidence could have been obtained prior to the hearing.

While the adjudicator agreed the Tribunal made a factual error regarding the dates in dispute for the IRB claim, upon reviewing the evidence for the corrected period (February 26, 2020 to April 23, 2023), the adjudicator concluded the applicant failed to prove a substantial inability to perform the essential tasks of his employment.

The reconsideration was allowed in part to correct the dates, but the claim for ongoing IRB was dismissed.

The appellant appealed the dismissal of his personal injury action, which was found to be statute-barred due to the two-year limitation period.

The motion judge concluded that the appellant's injuries were discoverable well within the limitation period.

The Court of Appeal dismissed the appeal, finding no reversible error in the motion judge's application of discoverability principles under the Limitations Act and the threshold for serious and permanent impairment under the Insurance Act.

The Court clarified that formal medical opinions required for a threshold motion are not necessary to trigger the limitation period.

The applicant requested a reconsideration of a Licence Appeal Tribunal decision that denied her claims for various statutory accident benefits, including attendant care, housekeeping, and medical treatments.

The applicant argued that the adjudicator committed a material breach of procedural fairness, demonstrated institutional bias, and made several errors of law and fact.

The Tribunal dismissed the request, finding no reasonable apprehension of bias or breach of procedural fairness.

The Tribunal also concluded that the adjudicator made no errors of law or fact, noting that the applicant was improperly attempting to use the reconsideration process to reweigh the evidence.

The appellant, Ontario Place Corporation, appealed a trial judge's decision finding them liable under the Occupiers' Liability Act for injuries sustained by the respondent, Patrick Lyng, on their premises.

The trial judge found Ontario Place 75% liable and the respondent 25% contributorily negligent for a knee injury sustained after jumping down a wet, slippery hill when a pedestrian bridge was closed.

The appeal raised issues regarding the theory of liability, causation, breach of duty under the Act, contributory negligence, and the award for loss of competitive advantage.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings on all grounds, including the "train of events" causation and the damages award.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiff's action for long-term disability benefits on the basis that it was commenced outside the two-year limitation period.

The defendant also moved to dismiss the action for late service of the statement of claim, while the plaintiff cross-moved to validate service.

The court validated the late service of the statement of claim, finding the delay was due to solicitor inadvertence during the COVID-19 pandemic and caused no prejudice.

The court also allowed the summary judgment motion to proceed despite the defendant not having filed a statement of defence, finding the plaintiff's prior counsel had implicitly consented to the procedure.

On the limitation period issue, the court held that the plaintiff's claim was discovered when she received the initial denial letter, which clearly stated the denial was final and explicitly warned of the limitation period.

The internal appeal process did not pause the limitation period.

The action was dismissed as statute-barred.

The applicant sought a determination that he sustained a catastrophic impairment under Criterion 8 (mental and behavioural disorders) following a 2012 motor vehicle accident.

The Tribunal found that the applicant's multidisciplinary catastrophic impairment evaluation was conducted in compliance with section 45(2)1 of the Schedule.

However, the Tribunal concluded that the applicant did not sustain a Marked (Class 4) impairment in the domain of Adaptation.

The Tribunal preferred the evidence of the respondent's experts, finding that the applicant's self-reporting was unreliable and that his psychological impairments did not significantly impede his useful functioning.

During a trial concerning an oil spill, the plaintiff sought to admit an expert witness, Michael Flynn, retained by their insurer.

The defendant objected, arguing Flynn did not qualify as a participant expert and his report was non-compliant with Rule 53.03.

The court ruled that Flynn was not a participant expert as he was engaged by a party to the litigation and his opinions were not based on personal observation or participation in the events.

However, the court granted leave under Rule 53.08 to admit his report and allow him to testify as a Rule 53 expert, finding a reasonable explanation for the non-compliance and no prejudice to the defendant.

The court qualified Flynn to provide expert opinion on the origin and cause of the oil spill, Microbial Influenced Corrosion (MIC) generally, and compliance with codes and regulations for heating appliances and fuel suppliers.

He was not permitted to testify on the standard of care applicable to an Oil Burner Technician (OBT), adhering to the "specialist to specialist" rule for such opinions.

The respondent insurer requested a reconsideration of a Tribunal decision which found that the applicant was not catastrophically impaired and could change her election from a non-earner benefit to an income replacement benefit.

The insurer argued the Tribunal made errors of fact and law in finding the initial election invalid.

The Tribunal dismissed the request, finding no error of fact, as the applicant qualified for the income replacement benefit and thus did not meet the criteria for the non-earner benefit.

Furthermore, the Tribunal found no error of law in its determination that the insurer's failure to comply with the mandatory 10-day notice requirement under s. 35(1) of the Schedule rendered the applicant's election not final.

The appellant appealed the dismissal of his claim for damages related to an oil spill caused by a corroded oil filter.

The appellant argued that the respondent's oil burner technician (OBT) breached the standard of care by failing to replace the filter, citing manufacturer instructions for annual replacement, the Ontario Installation Code for Oil-Burning Equipment, and a duty to 'tag out' the filter.

The Court of Appeal upheld the trial judge's findings that the OBT was not obligated to replace the filter if it was in good condition, that manufacturer instructions were recommendations rather than requirements under the Code, and that the 'tag out' requirement did not apply as the OBT deemed the filter in good working order.

The appeal was dismissed, affirming the trial judge's factual findings.

The Plaintiff, W. James D. Helmer, brought a motion seeking leave to amend his Statement of Claim against Economical Mutual Insurance Company.

The proposed amendments sought to particularize claims of waiver, misrepresentation, and promissory estoppel, and to clarify the claim for breach of duty to act in good faith, related to an insurance policy's 6558 Extension.

Economical opposed, arguing non-compensable prejudice due to delay and that new claims were asserted outside the limitation period.

The court also addressed a preliminary objection to the defendant's affidavit evidence.

The motion was granted, finding no actual non-compensable prejudice and that the amendments did not constitute new causes of action, leaving the limitation period dispute for trial.