Matthew Gervan

The respondent insurer requested a reconsideration of a Licence Appeal Tribunal decision that granted the applicant a 50% award ($1,300) for unreasonably withholding approval of a chiropractic treatment plan.

The insurer argued the Tribunal misapprehended the medical evidence and improperly applied the standard for an award.

The Vice-Chair dismissed the request, finding that the insurer was attempting to re-litigate the weighing of evidence and that the original adjudicator provided adequate reasons and acted within their discretion in granting the maximum award.

The applicant sought statutory accident benefits following a motor vehicle accident, including a non-earner benefit and a chiropractic treatment plan.

The Licence Appeal Tribunal dismissed the claim for the non-earner benefit, finding the applicant's inconsistent self-reporting of her pre-accident activities and pre-existing conditions precluded a clear comparison under the Heath test.

However, the Tribunal approved the chiropractic treatment plan, noting the respondent's own occupational therapy assessor found the treatment relieved the applicant's pain.

The Tribunal also ordered the respondent to pay a 50% award under s. 10 of Reg. 664 ($1,300) for unreasonably withholding approval of the treatment plan despite having its own assessor's supportive report.

The applicant sought statutory accident benefits beyond the $3,500 Minor Injury Guideline (MIG) limit following a motor vehicle accident, claiming psychological injuries and chronic pain.

The respondent denied the claims, arguing the injuries were minor.

The Tribunal preferred the respondent's psychological and medical evidence, which indicated symptom magnification and malingering, over the applicant's evidence.

The Tribunal found the applicant's injuries fell within the MIG and, as the funding limit was exhausted, dismissed the application for further medical benefits, interest, and an award.

The applicant, a self-employed individual who had taken maternity leave prior to the accident, sought an income replacement benefit (IRB).

She argued that calculating her pre-accident income based on her last completed taxation year under s. 4(3) of the Statutory Accident Benefits Schedule (SABS) infringed the Human Rights Code on the ground of sex/pregnancy, as her income was reduced during her maternity leave.

The Adjudicator agreed that s. 4(3) had a discriminatory effect but found that the Tribunal lacked the jurisdiction to amend or read in language to the Schedule to craft the remedy sought by the applicant.

The Adjudicator determined the quantum of the IRB based on the applicant's 2016 tax return without deducting the capital cost allowance (CCA), as the current SABS does not mandate such a deduction.

The applicant's claim for an award under O. Reg 664 was dismissed, but interest on overdue benefits was awarded.

The applicant sought income replacement benefits (IRBs) beyond the 104-week post-accident mark, claiming he was completely unable to engage in any employment for which he was reasonably suited.

The adjudicator found that the applicant failed to disclose his pre-accident employment as a National Sales Manager to the vocational assessor.

Furthermore, medical and surveillance evidence demonstrated that the applicant retained the physical and psychological capacity to perform sedentary work similar to his undisclosed previous role.

The application for IRBs and a claim for an award for unreasonable delay were dismissed.

The court reconsidered its previous decision to decline scheduling a summary judgment motion due to the significant and indefinite delays in civil trials caused by the COVID-19 pandemic.

Initially, the court deemed a trial more efficient, but the changed circumstances rendered trial scheduling unrealistic for the foreseeable future.

Consequently, leave was granted to the defendants to bring a summary judgment motion under Rule 20 to test insurance defences, as this mechanism was now considered more efficient for streamlining issues given the prolonged trial backlog.

Directions were provided for electronic filing and virtual hearing protocols.

An insurer (State Farm) sought to pursue a subrogated claim against fuel oil suppliers for contamination losses.

The central issue was whether the insurer could commence the action in the name of its bankrupt insured or whether it was required to proceed in the name of the trustee in bankruptcy.

The majority held that the insurer's subrogation rights do not create a proprietary interest in the cause of action itself, and that upon the insured's bankruptcy, the cause of action vested in the trustee.

Consequently, the insurer could not commence the action in the name of the undischarged bankrupt but should have proceeded in the trustee's name.

The majority dismissed the action.

A dissent would have remitted the matter to permit the insurer to regularize the action by substituting the trustee as plaintiff.

The appellants appealed the dismissal of their motion for summary judgment.

The underlying action was a subrogated claim brought by an insurer in the names of the respondents for damages arising from a fuel oil spill.

The appellants argued the action was a nullity because the respondents were undischarged bankrupts when the claim was issued, meaning their causes of action had vested in their Trustees.

The Divisional Court dismissed the appeal, finding that the insurer's subrogation rights crystallized before the husband's assignment in bankruptcy, and the Trustee had disclaimed interest in the insurance claims.

Thus, the insurer was entitled to commence the action in the husband's name.

Homeowners’ insurer brought a fully subrogated action against fuel oil suppliers following a residential oil spill after indemnifying the insureds for remediation and property losses exceeding $800,000.

The insureds had filed for bankruptcy prior to the action being commenced.

The defendants moved for summary judgment arguing the insureds lacked capacity to sue because their causes of action vested in the bankruptcy trustee under the Bankruptcy and Insolvency Act.

The court held that once the insureds were fully indemnified, the insurer became dominus litis and was entitled to pursue the claim in the insureds’ names.

The Bankruptcy and Insolvency Act did not extinguish or override the insurer’s subrogation rights, and allowing the defendants’ motion would improperly allow an alleged wrongdoer to benefit from the existence of insurance.

The moving parties sought directions regarding compliance with a prior court order addressing undertakings, advisements, and objections arising from examinations for discovery.

The dispute concerned whether the defendants had adequately addressed issues relating to corporate ownership and control, particularly whether a named entity was a subsidiary of other defendants.

The court accepted admissions provided by defence counsel confirming the relevant corporate relationships and held that these admissions satisfied the earlier order’s requirements.

The admissions were permitted to be entered into evidence to prove the truth of their contents.

The moving parties were awarded modest costs payable by certain defendants.