Maximir Luburic

The applicant requested a reconsideration of a Tribunal decision that found she did not sustain a catastrophic impairment.

The applicant argued the Tribunal breached procedural fairness by shortening the hearing from 7 to 4 days and erred in its assessment of expert evidence, the AMA Guides, and causation.

The Tribunal dismissed the request, finding the shortened hearing was proportional given the reduced witness list and that the applicant was improperly attempting to re-weigh the evidence.

The Tribunal confirmed its preference for the respondent's psychiatric expert over the applicant's psychological expert.

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

The respondent denied the benefits, arguing the applicant's injuries fell within the Minor Injury Guideline (MIG) and that the applicant failed to comply with section 33 of the Schedule by not providing requested documents.

The Tribunal found that the applicant's pre-existing and accident-related psychological conditions removed him from the MIG.

However, because the applicant failed to comply with the respondent's section 33 requests for nearly three years without a reasonable explanation, he was barred from receiving the disputed medical and rehabilitation benefits.

The claims for an award and interest were also dismissed.

The applicant sought statutory accident benefits, claiming she sustained a catastrophic impairment under Criterion 8 (mental or behavioural disorder) following a motor vehicle accident.

The applicant argued she suffered a marked impairment in adaptation, relying on psychiatric and occupational therapy evidence.

The respondent contended the impairment was mild, pointing to pre-existing physical health issues and inconsistencies in the applicant's self-reported functioning.

The Tribunal found the applicant's evidence failed to differentiate between physical and mental impairments, concluding her limitations were primarily physical and pre-existing.

The Tribunal held the applicant suffered only a mild impairment in adaptation and did not meet the threshold for catastrophic impairment.

Both parties' requests for costs were dismissed.

The Court of Appeal for Ontario heard an appeal from a jury verdict and costs endorsement in a personal injury action.

The appellants (defendants) challenged the admissibility of a SPECT scan, the exclusion of attendant care forms for credibility, and jury instructions on causation and damages.

They also appealed the trial judge's refusal to deduct non-earner benefits from the tort award and the costs award.

The Court dismissed the appeals regarding the SPECT scan, attendant care forms, and jury instructions.

However, it allowed the appeal in part, ruling that non-earner benefits are deductible from the past income loss award, clarifying the "silo" approach under the Insurance Act.

The appeal on costs was dismissed, and the respondent was awarded costs for the appeal.

The plaintiff brought a negligence action for injuries from an automobile accident, with liability admitted by the defendants.

The trial proceeded on damages only before a jury.

The court addressed a dispute between counsel regarding the wording of jury questions.

The defendants proposed questions that included a causation question despite admitted liability, and sought to particularize damages by apportioning them between the initial accident and subsequent accidents.

The court rejected the defendants' proposed questions, finding them to contain embedded assumptions, to be overly complicated, and to risk confusion.

The court affirmed that admitted liability includes causation, making a separate causation question unnecessary.

It also reiterated principles against apportionment between tortious and non-tortious causes for indivisible injuries, and the general rule against requiring juries to provide reasons or particularize findings, especially for damages assessment.

The plaintiff's simpler, general damages questions were adopted.

The defendants brought a motion seeking production of original diagnostic imaging records, reattendance of the plaintiffs for discovery, and a further defence medical examination of the plaintiff by an orthopaedic surgeon.

The plaintiffs opposed, arguing the requests were disproportionate and that the defendants were only entitled to one physical examination.

The court granted the motion, finding the diagnostic imaging relevant and its production justified.

The court also ordered reattendance for discovery to answer follow-up questions.

Finally, the court ordered the further defence medical examination, limited to assessing the cause and prognosis of the plaintiff's labral tear, as the first examining physiatrist lacked the necessary expertise.

The plaintiff was previously successful on a motion to amend her statement of claim on the basis of misnomer.

The parties could not agree on costs.

The plaintiff sought partial indemnity costs of $6,069.30, while the respondents argued there should be no costs because the amendment was an indulgence.

The court agreed with the respondents, finding that the relief granted was discretionary and constituted an indulgence.

Given the plaintiff's delay and the respondents' reasonable opposition, the court ordered no costs for the motion.

The plaintiff brought a motion to amend her statement of claim to add the former owners of a condominium unit as defendants after the expiry of the limitation period.

The plaintiff had originally named the condominium corporation as the owner due to an incomplete title search.

The court granted the motion on the basis of the doctrine of misnomer, finding that the pleading clearly pointed the 'litigating finger' at the owners of the unit and that the proposed defendants would not suffer non-compensable prejudice.

The court rejected the alternative argument based on discoverability, noting that the true owners could have been discovered with due diligence.

The defendants brought a motion to compel the plaintiff to attend a defence medical examination with a neurologist in Toronto.

The plaintiff opposed the location, providing uncontroverted medical evidence from her treating physician and psychologist that she could not tolerate car travel longer than 30 minutes due to her injuries from a skid steer accident.

The court dismissed the motion, finding that while defendants have a prima facie right to choose their medical expert, this right is not unfettered when it compromises the plaintiff's well-being.

The defendants were granted leave to arrange an examination within a 30-minute drive of the plaintiff's residence.