Michael D. Smitiuch

The respondent insurer requested a reconsideration of a Tribunal decision that barred the applicant from proceeding with his application due to his failure to attend a properly scheduled s. 44 insurer's examination.

The respondent argued the Tribunal erred by failing to also address whether the applicant was barred for failing to dispute the denial of benefits within the two-year limitation period.

The Tribunal dismissed the request, finding that because the application was already barred under s. 55, the limitation period issue was moot and there was no error in declining to rule on it.

A Hamilton jury awarded the plaintiff over $1 million in damages for serious injuries from a motor vehicle accident.

The jury award exceeded both the plaintiff's and defendants' offers to settle.

This decision addresses the plaintiff's application for costs, prejudgment interest, and post-judgment interest.

The court applied Rule 49.10, entitling the plaintiff to partial indemnity costs up to the date of their offer and substantial indemnity costs thereafter.

The court also exercised its discretion under the Courts of Justice Act to fix prejudgment interest at 3% and post-judgment interest at 7%.

The total award for costs and interest was $1,104,557.50.

The applicant requested a reconsideration of a Licence Appeal Tribunal decision that found him statute-barred from pursuing a claim for occupational and physical therapy treatment plans and denied 10 other treatment plans.

The applicant argued the adjudicator made several errors of fact and law, including misinterpreting section 44 of the Schedule and failing to consider the severity of his concussion.

The adjudicator granted the reconsideration in part, correcting a factual error regarding the applicant's attendance at an insurer's examination and awarding a $200 form completion fee.

However, the adjudicator found no errors of law or fact that would change the outcome of the remaining dismissed claims.

The applicant sought medical and rehabilitation benefits following a motor vehicle accident.

The respondent denied the benefits on the basis that the applicant failed to attend scheduled insurer examinations (IEs) and that the treatment plans were not reasonable and necessary.

The Tribunal found that the applicant was statute-barred from proceeding with claims related to two issues because he failed to attend the required IEs without a reasonable explanation.

For the remaining treatment plans, the Tribunal concluded that the applicant failed to meet his evidentiary burden to establish that the proposed treatments were reasonable and necessary.

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

The plaintiff, a prominent human rights lawyer, was struck by the defendant's motor vehicle while riding her bicycle.

The defendant failed to discharge the reverse onus under the Highway Traffic Act and was found wholly liable.

The court accepted expert medical evidence that the plaintiff suffered a permanent mild traumatic brain injury (mTBI) and chronic migraines, which effectively ended her legal career.

The court dismissed the defendants' threshold motion, finding the plaintiff sustained a permanent serious impairment of an important function, and awarded substantial damages including $250,000 in general damages, past and future income loss, and future care costs.

The applicant sought a $10,000 death benefit under the Statutory Accident Benefits Schedule following the death of her husband in a motor vehicle accident.

The respondent insurer denied the claim on the basis that the applicant was not "principally dependent" on her late husband for financial support.

The Tribunal applied the criteria from Miller v. Safeco, analyzing the applicant's financial situation in the six months prior to the accident.

The Tribunal found that the applicant's own income was sufficient to cover more than 51% of her financial needs, meaning she was not principally dependent on her husband.

The application for the death benefit, along with claims for interest and a special award, was dismissed.

The plaintiff brought an urgent motion to conditionally strike the jury notice for a trial scheduled to commence on January 17, 2022, due to COVID-19 pandemic developments suspending jury selections.

The defendants opposed the motion.

The court considered factors such as court resources, local pandemic impact, prejudice to parties (especially the plaintiff due to financial implications and case age), and history of adjournments.

The court granted the plaintiff's motion, ordering that the trial proceed without a jury if juries are not being impaneled, and awarded costs to the plaintiff.

The appellants sought to overturn a jury verdict finding them negligent for a fatal fire and challenging the quantum of damages awarded for loss of care, guidance, companionship, mental distress, and future costs of care.

The Court of Appeal dismissed the appeal, upholding the jury's findings of negligence based on fire safety violations and affirming the damages awards, finding they did not "shock the conscience of the court" despite being high.

The court also clarified that Section 76 of the Fire Protection and Prevention Act does not immunize landlords from negligence related to fire safety precautions, even if the fire's origin is accidental.

The plaintiff was injured while attempting a back flip at the defendant's indoor trampoline park.

The defendant moved for summary judgment, arguing that the electronic waiver signed by the plaintiff at a kiosk barred the action.

The court dismissed the motion, finding a genuine issue for trial regarding whether the defendant took reasonable steps to bring the terms of the waiver to the plaintiff's attention, given the plaintiff's uncontroverted evidence that he was rushed through the process.

The court issued an endorsement on costs and the deductibility of a prior settlement following a jury trial.

The plaintiffs were awarded damages and punitive damages against the defendants.

The court ruled that a settlement received by one plaintiff from the City of Brampton, explicitly labeled as general damages, was not deductible from the jury's award for loss of income, rejecting the defendants' claim of double recovery.

Regarding costs, the court found the defendants' Rule 49 offer to be improper due to its non-severable nature for multiple plaintiffs and that the plaintiffs' net award exceeded the offer.

Considering the complexity, importance of issues, and the defendants' aggressive litigation tactics, the court awarded the plaintiffs partial indemnity costs, fixing the total at $445,000, which included fees, disbursements, and costs thrown away due to an adjournment.

This endorsement addresses costs arising from two summary judgment motions.

The Plaintiff successfully defended Halton's motion to dismiss claims against it, and also successfully defended against Mervyn White and Carters PC's motion to dismiss claims against them, though White and Carters PC obtained a declaration regarding the limitation period.

The court found the Plaintiff entirely successful in defending both motions and entitled to costs.

It also found it reasonable to join the defendants and applied the Moore v. Wienecke framework for a Bullock order, requiring Halton to pay a majority of White and Carters PC's costs due to Halton's motion effectively shifting responsibility and prompting White and Carters PC's companion motion.

The defendants, The Corporation of the Regional Municipality of Halton and the plaintiff's former lawyers (Mervyn F. White and Carters Professional Corporation), brought motions for summary judgment to dismiss the plaintiff's claims for long-term disability (LTD) benefits.

Halton argued the LTD application was late, the plaintiff's employment was terminated, and the claim was statute-barred.

The former lawyers sought dismissal if the claims against Halton were time-barred.

The court granted the plaintiff relief from forfeiture for the late LTD application, finding Halton's misleading information and failure to assist contributed to the delay.

It also determined that the termination of employment did not preclude the claim and that the two-year statutory limitation period applied, which had not expired.

Both defendants' motions for summary judgment were dismissed.

The court issued a corrigendum to correct and add the names of counsel for the plaintiffs and defendants in the original Reasons for Judgment issued on December 7, 2016.

All other contents of the original judgment remain unchanged.

The plaintiff was rendered a quadriplegic after the minivan he was a passenger in was struck by a vehicle driven by the defendant Ellis at an intersection.

Ellis had stopped at a stop sign rather than the faded stop line, resulting in poor sightlines, and pulled into the intersection when it was unsafe.

The court found the City of Hamilton 50% liable for failing to maintain the stop line, which created an unreasonable risk of harm.

Ellis was found 50% liable for failing to ensure it was safe to proceed.

Claims against the driver of the minivan were dismissed.

The applicant sought judicial review of the Chief Coroner's decision not to hold a discretionary inquest into the death of his son, who died by suicide while on constant watch in a hospital psychiatric department.

The applicant argued the decision was unreasonable and that the Chief Coroner's remarks about the efficacy of lay juries raised a reasonable apprehension of bias.

The Divisional Court dismissed the application, finding the Chief Coroner reasonably concluded that the hospital had already addressed the specific contributors to the death and there was no evidence of systemic failure.

The court also held the Chief Coroner's remarks represented professional judgment and did not raise a reasonable apprehension of bias.

Following a jury trial in a personal injury action arising from a golf cart accident, the court addressed the narrow post-verdict issue of the applicable pre-judgment interest rate on past pecuniary damages.

The defendant sought a reduction from the statutory 3.3% rate to 1.3% under s. 130(1) of the Courts of Justice Act, relying on lower prevailing rates, the timing of the income loss, severance-related income continuation, and alleged delay.

The court held that the rate fluctuations were not sufficiently marked to justify departure from the statutory regime, declined to speculate about the jury’s calculation of past income loss, and found no egregious delay by either side.

The statutory rate remained applicable.

During a personal injury trial arising from a golf cart accident, the court was asked to determine whether a severance package received by the plaintiff after his termination should be deducted from any damages awarded for loss of income.

The plaintiff argued the severance fell under the private insurance exception to the rule against double recovery.

The court agreed, finding that the severance package was obtained in exchange for the plaintiff giving up his rights as a long-term employee, and was not merely a continuation of salary.

Therefore, no deduction for the severance allowance would be made from any jury award for past or future loss of income.

The plaintiffs sought costs following a 22-day product liability trial where the jury awarded them $1,157,850 in damages but found the plaintiff 25% contributorily negligent.

The court awarded costs on a partial indemnity basis, rejecting the plaintiffs' request for substantial indemnity costs and a cost premium.

The court also declined the defendants' request to reduce the costs award by 25% to reflect the contributory negligence finding, noting that the plaintiff's negligence did not materially affect the prospects for settlement.

The plaintiffs were awarded $387,140 in fees, plus HST and disbursements.

During a product liability jury trial, the defendants requested that the jury be charged on the doctrine of spoliation because the plaintiffs discarded the broken pieces of the cookware that allegedly caused the injury.

The court declined to charge the jury on spoliation, finding no evidence that the plaintiffs intentionally destroyed the evidence to affect ongoing or contemplated litigation.

The plaintiffs discarded the broken pieces shortly after the accident without contemplating a lawsuit.

The plaintiffs brought a motion seeking court approval of a proposed infant settlement arising from a motor vehicle accident in which a minor sustained a fractured femur and facial fractures.

The proposed settlement totalled $85,000 and included damages, interest, legal fees, HST, and disbursements pursuant to a contingency fee agreement entered into by the litigation guardian.

The court found the evidentiary record insufficient regarding the facial injury and raised concerns about whether the contingency fee agreement complied with the Solicitors' Act.

Applying the fairness and reasonableness framework articulated by the Court of Appeal, the court held that the materials were inadequate to determine whether the settlement and fee arrangement were appropriate.

The matter was referred to the Office of the Children's Lawyer to investigate and report on the settlement and the enforceability and reasonableness of the contingency fee agreement.