Naphtali Silverman

The applicant was involved in a motor vehicle accident and sought statutory accident benefits.

The insurer denied benefits and argued the applicant was barred from proceeding because he failed to submit the OCF-1 application within the prescribed 30-day time limit.

The Tribunal found that the applicant provided a reasonable explanation for the delay, as the insurer's correspondence regarding the interplay between WSIB benefits and accident benefits was confusing.

Although the applicant was not barred from proceeding, the Tribunal closed the file as there were no substantive issues in dispute.

The defendant Phillip Franchetto brought a motion for summary judgment to dismiss negligence claims against him arising from a head-on motor vehicle collision.

The plaintiffs, passengers in the other vehicle, alleged Franchetto was negligent for his speed and evasive maneuvers.

The court dismissed the motion, finding that Franchetto's actions were reasonable and did not breach the standard of care, nor were they a legal cause of the plaintiffs' injuries.

The court emphasized that expert opinions based on hindsight and counterfactuals cannot supplant the legal standard of a reasonable and prudent driver in an emergency.

The Estate of Helen Martindale brought a medical malpractice action against two emergency room physicians, Dr. Lee and Dr. Chiu, alleging negligence in their diagnosis and treatment of Helen Martindale's perianal pain, which was later diagnosed as anal cancer requiring an ileostomy.

The plaintiff contended that the doctors breached the standard of care by failing to properly diagnose, investigate, and provide adequate follow-up.

The court found that both Dr. Lee and Dr. Chiu met the applicable standard of care, concluding that their assessments and treatment plans were reasonable given the patient's presentation and the circumstances at a community hospital.

The court also found the plaintiff's evidence unreliable regarding follow-up instructions and determined that no imaging was medically necessary at the time of the initial emergency room visits.

As no breach of the standard of care was found, the issue of causation was not determined, but the court noted that the plaintiff failed to prove that any alleged breach caused the need for an ileostomy.

The action was dismissed.

The applicant requested a reconsideration of a Licence Appeal Tribunal decision that denied his claim for post-104-week income replacement benefits (IRBs).

The applicant argued that the adjudicator violated procedural fairness by considering arguments not raised by the respondent, overruling medical professionals, and failing to provide adequate reasons, and that the adjudicator made errors of fact regarding the medical evidence.

The Tribunal dismissed the request, finding that the adjudicator properly applied the legal test under s. 6(2) of the Statutory Accident Benefits Schedule, appropriately weighed the medical evidence, and provided sufficient reasons for concluding that the applicant failed to prove a complete inability to engage in employment.

The applicant sought income replacement benefits (IRBs) following a 2017 motor vehicle accident.

The respondent initially paid IRBs but terminated them in March 2018 based on insurer's examinations.

The applicant claimed entitlement for two periods: March 2018 to April 2019 (pre-104 weeks) and March 2020 onwards (post-104 weeks).

The Tribunal dismissed the application, finding the applicant failed to prove a substantial inability to perform the essential tasks of his employment for the first period, noting evidence he had returned to work earlier than claimed.

For the post-104-week period, the Tribunal found the applicant stopped working in March 2020 due to COVID-19 concerns rather than a complete inability to engage in employment due to accident-related impairments.

The respondent insurer requested a reconsideration of a preliminary issue decision which found that the applicant was involved in an 'accident' when he fell from the roof of his transport truck while inspecting it.

The insurer argued the Tribunal failed to properly apply the 'but for' and 'intervening act' tests for causation.

The Tribunal dismissed the request, finding no error of law or fact.

The Tribunal confirmed that the use and operation of the truck was a direct cause of the impairments and that the ladder sliding away was not an intervening act that broke the chain of causation.

The defendants brought a motion at the commencement of trial to exclude a late-served expert radiology report from the plaintiff.

The plaintiff argued the report was necessary for a fair determination on the merits, as it analyzed actual CT images rather than relying on previous radiology reports.

The court found the evidence relevant, probative, and necessary.

The court granted leave to admit the late-served report and adjourned the trial to allow the defendants to obtain a responding radiologist's report.

The applicant sought statutory accident benefits for occupational therapy and assistive devices following a 2016 motor vehicle accident.

The respondent insurer denied the treatment plans.

The Licence Appeal Tribunal found that while the applicant continued to suffer impairments from the exacerbation of pre-existing degenerative disc disease, she failed to prove that the proposed occupational therapy and assistive devices were reasonable and necessary.

The adjudicator relied on the respondent's occupational therapy assessment, which concluded the applicant could perform self-care and had returned to work without the devices.

The application was dismissed.

The defendants brought a motion seeking to exclude the plaintiff from the examination for discovery of the defendant C.H., who alleged sexual assault by the plaintiff when C.H. was a minor.

The plaintiff denied the allegations and opposed exclusion, asserting his right to be present.

The court, considering medical evidence of C.H.'s distress and drawing parallels to testimonial accommodations in criminal law (e.g., Criminal Code s. 486.2), ordered a testimonial accommodation.

C.H. was to be examined in a separate room, with the plaintiff observing via closed-circuit television.

The court clarified that such accommodation does not imply an admission of guilt and that the additional costs would be borne by the defendants.

The applicant was injured in a motor vehicle accident and sought approval for a multi-disciplinary catastrophic impairment assessment totaling $22,416.69.

The respondent partially approved the treatment plan for $7,006.00.

The applicant applied to the Licence Appeal Tribunal for the unapproved balance of $15,410.69.

The adjudicator found that most of the disputed assessments were either duplicitous, ancillary to the psychological assessment, or exceeded the $2,000 statutory cap per assessment under s. 25(5)(a) of the Schedule.

The applicant was awarded $2,000 for the CAT Rating/Executive Summary and $200 for the OCF-19 completion fee, plus interest, with the remainder of the claim dismissed.

The appellant employer appealed the dismissal of its motion for summary judgment seeking to enforce a release signed by the respondent employee upon his dismissal.

The release purported to waive any claim for long-term disability benefits.

The motion judge found the release unconscionable and unenforceable as it related to the long-term disability claim.

The Court of Appeal allowed the appeal, finding that the motion judge erred in determining unconscionability on summary judgment.

The court held that the issue of unconscionability and enforceability of the release was a genuine issue requiring trial determination.

The applicant was injured in a motor vehicle accident and sought payment for a physiotherapy treatment plan to address ongoing symptoms, primarily headaches.

The respondent denied the plan based on an insurer's examination by a neurologist who recommended pharmacological treatment instead.

The applicant had also suffered a second concussion post-accident.

The Tribunal applied the 'but for' test, finding the accident made the applicant more susceptible to the second concussion.

Applying the Violi factors, the Tribunal found the physiotherapy treatment was reasonable and necessary given the documented improvements, and ordered the respondent to pay the treatment plan with interest.

The plaintiff, Joe Swampillai, brought an action for long-term disability (LTD) benefits against his former employer, Royal & Sun Alliance Insurance Company of Canada (RSA), and Sun Life Assurance Company of Canada (Sun Life).

The defendants moved for summary judgment, arguing that a full and final release signed by Swampillai barred his claim.

Swampillai pleaded unconscionability to set aside the release as it pertained to LTD benefits.

The court found that the release was unconscionable regarding the LTD claim because the transaction was grossly unfair and improvident, Swampillai lacked independent legal advice on this specific aspect, there was an overwhelming imbalance in bargaining power, and RSA knowingly took advantage of his vulnerability.

Consequently, the release was set aside as it related to the LTD claim, and the defendants' motions for summary judgment were dismissed.

The applicant sought a $10,000 death benefit following her mother's death in a motor vehicle accident, claiming she was principally dependent on her mother for financial support and care.

The Licence Appeal Tribunal found that the applicant, who was employed and earning over $44,000 annually, was capable of meeting her own financial needs and was not financially dependent on her mother.

The application for the death benefit and associated interest was dismissed.

The applicant applied for a $10,000 death benefit following her mother's death in a motor vehicle accident.

The insurer denied the claim on the basis that the applicant, an adult child living at home and working full-time, was not principally dependent on her mother for financial support or care.

The Tribunal found that the applicant earned sufficient income to be self-supporting and failed to prove that her mother provided more than 50% of her financial needs.

The application for death benefits and interest was dismissed.