Michael Walter

The defendant in a long-term disability action brought a motion for an order requiring the plaintiff to attend a psychiatric Independent Medical Evaluation (IME).

The plaintiff opposed, arguing she had already attended a pre-litigation psychiatric assessment with a different doctor.

The court held that the pre-litigation assessment did not constitute a first examination under section 105 of the Courts of Justice Act, giving the defendant a prima facie right to the requested IME.

Alternatively, the court found sufficient evidence of a change in circumstances to warrant a further examination.

The motion was granted.

The plaintiff moved for judgment on an accepted offer to settle, seeking a determination on the applicable prejudgment interest rate.

Shortly before the offer was accepted, an amendment to the Insurance Act came into force, reducing the prejudgment interest rate for non-pecuniary damages.

The plaintiff argued the amendment was substantive and did not apply retroactively, while the defendants argued it was procedural and did apply.

The court held that the amendment to the calculation of prejudgment interest was procedural in nature and therefore applied retroactively, resulting in the lower interest rate being applied to the settlement amount.

The applicant, Living Realty Inc., sought leave to appeal an order granting the plaintiff leave to amend the Statement of Claim nunc pro tunc to include a breach of trust claim, and an order certifying the action for negligent misrepresentation as a class proceeding.

The Divisional Court dismissed the application, finding no conflict in the authorities regarding the amendment, as it merely set up new facts for an existing claim.

The court also found no principled basis to refuse certification for negligent misrepresentation given the factual overlap with the breach of trust claims, consistent with appellate authority.

Leave to appeal was denied with costs.

The applicant, a taxi driver, was assaulted by a passenger following a dispute over the fare and subsequently robbed.

He applied for statutory accident benefits.

The insurer denied the claim, arguing the incident was not an 'accident' under the 1996 Statutory Accident Benefits Schedule.

The arbitrator held that while the assault was the end product of a commercial relationship resulting from the use of the automobile as a taxi-cab, the use or operation of the taxi-cab was not the direct cause of the applicant's impairment.

The injuries were caused by a new and independent source (the assault).

Therefore, the applicant was not involved in an 'accident' and is not entitled to benefits.