Michael Gerhard

In this slip and fall action, one defendant sought leave at a case conference to bring a partial summary judgment motion on duty of care and limitation issues.

The plaintiff opposed the request on the basis that the action would continue against other defendants, the moving defendant would still be a trial witness, and credibility and expert issues remained live.

The court held the proposed motion was not appropriate because it would delay trial scheduling, was unlikely to be materially more cost-effective than trial, and risked inconsistent findings on issues intertwined with the main action.

The request to proceed by summary judgment was therefore refused.

The applicant requested a reconsideration of a Tribunal decision that barred his claim for statutory accident benefits because he failed to notify the insurer within seven days of the incident, as required by s. 32(1) of the Schedule.

The applicant argued the adjudicator breached procedural fairness by providing insufficient reasons regarding prejudice and erred in applying the Horvath test for a reasonable explanation.

The Vice-Chair dismissed the request, finding the adjudicator provided a logical chain of reasoning and made no identifiable errors of fact or law in weighing the parties' relative prejudice and the length of the delay.

The applicant sought statutory accident benefits following an alleged incident where he braked hard to avoid a collision and his seat belt failed, causing him to hit the steering wheel.

The respondent insurer denied the claim and raised two preliminary issues: whether the incident met the definition of an 'accident' under s. 3(1) of the Schedule, and whether the applicant was barred from proceeding for failing to notify the insurer within seven days under s. 32(1).

The Tribunal found that while an incident occurred, the applicant failed to provide contemporaneous medical evidence that it directly caused an impairment, thus failing the causation test.

Furthermore, the Tribunal found the applicant did not notify the insurer within seven days and failed to provide a reasonable explanation for the 12-week delay.

The application was dismissed.

The applicant sought statutory accident benefits following a motor vehicle accident, claiming catastrophic impairment under Criteria 6 and 7 of the Schedule.

The Tribunal found the applicant did not meet the 55% whole person impairment threshold, preferring the respondent's medical experts who assessed a 25% combined impairment over the applicant's experts whose ratings were unsupported by the AMA Guides.

The Tribunal also dismissed claims for income replacement benefits, attendant care benefits, and various treatment plans due to a lack of supporting evidence.

The respondent's claim for repayment of income replacement benefits was also dismissed for lack of evidence.

This class action motion sought approval of a proposed settlement and class counsel fees concerning denied travel insurance claims by TD Home and Auto Insurance Company during the early COVID-19 pandemic, specifically regarding denials based on the availability of non-monetary compensation (credits/vouchers).

The parties reached a settlement of $5.1 million, with $4.8 million available for class members.

The settlement provides $100 for cash-refunded claims and at least 40% of the value for non-cash-refunded claims, allowing class members to retain travel credits.

The court found the settlement fair, reasonable, and in the best interest of the class, noting the risks of litigation and the absence of objections.

Class counsel's request for fees, based on a 21.5% contingency rate (reduced to 17% for the class after defendant's contribution), was also approved as fair and reasonable, proportionate to the settlement size, and reflecting the work and risks undertaken.

The plaintiff brought a class action alleging that the defendant insurer wrongfully deprived insureds of trip cancellation benefits by offering non-monetary compensation such as credits or vouchers.

On consent, the court certified a single threshold common issue regarding the interpretation of the travel insurance policy and dismissed the claim against the parent bank.

The court found that certifying a single threshold common issue, with the possibility of further common issues later, was an efficient procedure akin to a Rule 21 motion.

Following a motion regarding the examination for discovery of the defendant's representative, the parties were unable to agree on costs.

The plaintiff sought substantial indemnity costs, while the defendant argued the parties should bear their own costs.

The court found that while both parties shared responsibility for the conduct of the motion, the defendant's refusal to re-produce the deponent necessitated the motion.

The court awarded the plaintiff costs fixed at $4,000 on a partial indemnity scale.

The plaintiff brought a motion to compel the City of Toronto's representative to re-attend an examination for discovery and to answer various undertakings and refusals, alleging improper conduct by the City's counsel.

The Master found no misconduct by the City's counsel that would render the examination futile.

However, applying principles of proportionality and noting that some refusals were improper, the Master ordered the City's representative to re-attend virtually for 30 minutes to answer follow-up questions and directed the City to provide specific clarifications regarding winter maintenance records and procedures.

The appellant (defendant at trial) appealed a judgment awarding damages for a respiratory injury allegedly caused by being sprayed with a fire extinguisher.

The appeal raised issues regarding the admission of participant expert evidence, the adequacy of the trial judge's reasons for not considering defence expert evidence on causation, and the quantum of non-pecuniary damages.

The Court of Appeal found the trial judge's reasons insufficient for failing to analyze the appellant's expert evidence on the diagnosis of Reactive Airways Disorder Syndrome (RADS) and for relying on an unqualified expert's incorrect summary of other specialists' views.

The appeal was allowed, and a new trial ordered.

The plaintiff was shopping at the defendant's store when an employee accidentally discharged a fire extinguisher in his face.

The defendant admitted liability but disputed causation and damages, arguing the plaintiff's subsequent severe respiratory issues were a natural progression of a pre-existing illness.

The court applied the 'but for' test and the thin skull doctrine, finding that the incident caused the plaintiff to develop Reactive Airways Dysfunction Syndrome (RADS).

The court awarded the plaintiff $225,000 in non-pecuniary damages, along with significant awards for past and future income loss, and subrogated claims.

The plaintiff brought a motion to exclude a defendant from her examination for discovery, citing intimidation and fear of tailored evidence.

The court dismissed the motion, affirming a litigant's inherent right to be present at discovery unless exceptional circumstances, such as a real and substantial probability of intimidation or evidence tailoring, are proven.

The court found the plaintiff's discomfort and anxiety insufficient for exclusion and noted the defendant's evidence could be impeached by prior statements.

Costs were awarded to the successful defendants on a partial indemnity basis.