Nestor E. Kostyniuk

The applicant sought statutory accident benefits following a motor vehicle accident, claiming catastrophic impairment and attendant care benefits.

The applicant failed to attend the scheduled videoconference hearing despite receiving proper notice.

The Tribunal proceeded in the applicant's absence pursuant to the Licence Appeal Tribunal Rules and the Statutory Powers Procedure Act.

As the applicant presented no evidence or submissions to meet his burden of proof, the application was dismissed.

The applicant was injured in a 1994 motor vehicle accident and sought a supervisory level of attendant care benefits (ACB) and several treatment plans after reopening her claim in 2015.

The respondent denied the benefits, arguing a lack of causation and relying on insurer's examinations that recommended minimal care.

The Tribunal found the applicant suffered from conversion disorder causing unpredictable, debilitating tremors, necessitating 24/7 supervisory care for her safety.

The Tribunal awarded the maximum $3,000 monthly ACB, past ACB, and all disputed treatment plans.

Furthermore, the Tribunal ordered a 50% special award against the respondent under s. 10 of Regulation 664, finding the insurer's prolonged reliance on a baseless causation argument to deny benefits was excessive, stubborn, and unreasonable.

The applicant sought reconsideration of a decision finding he did not suffer a catastrophic impairment following a motor vehicle accident.

The applicant argued he was denied procedural fairness when his expert was prevented from expanding on answers during cross-examination and re-examination, and that the adjudicator misunderstood the expert's evidence regarding cauda equina-like syndrome.

The Vice Chair dismissed the request, finding that limiting re-examination correctly prevented the applicant from splitting his case.

Furthermore, while the adjudicator acknowledged a minor factual error regarding the AMA Guides, it was not material, as the expert's diagnosis was suspect due to his unawareness of the applicant's pre-existing severe degenerative disc disease.

The applicant was injured in a motor vehicle accident and sought attendant care and housekeeping benefits.

The respondent insurer raised a limitation defence, arguing the applicant failed to challenge the denial of these benefits within the two-year limitation period under s. 56 of the Statutory Accident Benefits Schedule.

Applying the Court of Appeal's decision in Tomec, the adjudicator found that the limitation period for the housekeeping benefit and post-104-week attendant care benefit did not commence until the applicant was deemed catastrophically impaired, as she could not have discovered her entitlement before that designation.

However, the claim for attendant care services incurred prior to the 104-week mark was statute-barred, as it was clearly denied and not pursued within two years.

The applicant's request for costs was dismissed.

The applicant sought a determination that he sustained a catastrophic impairment following a motor vehicle accident, which would entitle him to enhanced statutory accident benefits.

The central dispute involved whether the applicant's lower extremity symptoms were caused by accident-related damage to the cauda equina or by pre-existing degenerative disc disease.

The Tribunal preferred the respondent's medical evidence, finding that the applicant suffered an L1 fracture and that his ongoing symptoms were degenerative rather than accident-related.

As the applicant's Whole Person Impairment score did not reach the 55% threshold without the cauda equina impairment rating, the motion was dismissed.

The applicant sought a determination that he sustained a catastrophic impairment following a motor vehicle accident, which would entitle him to enhanced statutory accident benefits.

The dispute centered on whether his lower extremity symptoms were caused by accident-related damage to the cauda equina or pre-existing degenerative disc disease.

The tribunal accepted the respondent's medical evidence that the symptoms were degenerative and that treating physicians had ruled out cauda equina involvement.

Consequently, the applicant's Whole Person Impairment score did not meet the 55% threshold, and the application was dismissed.

The appellant solicitors represented the plaintiff in a motor vehicle accident trial.

Although the jury awarded damages, the trial judge's costs award resulted in a net judgment requiring the plaintiff to pay the defendants.

The solicitors sought a charging order under s. 34(1) of the Solicitors Act on the damages awarded before set-off.

The motion judge dismissed the request, finding no property was recovered.

The Court of Appeal upheld the decision, confirming that mutual debt obligations in a judgment are set-off, and since the plaintiff emerged as a net debtor, no property was recovered through the solicitors' instrumentality.

The applicant, an 18-year-old pedestrian, suffered a severe traumatic brain injury when struck by a car.

He applied for non-earner benefits, which the respondent insurer denied based on insurer examinations suggesting symptom exaggeration.

The Licence Appeal Tribunal found that the applicant suffered a complete inability to carry on a normal life, noting his inability to return to school, drive, play basketball, or maintain his pre-accident social life.

The Tribunal rejected the insurer's neuropsychological assessments as they were contradicted by the insurer's own catastrophic impairment assessors, who found genuine, severe cognitive deficits.

The Tribunal ordered the payment of non-earner benefits and granted a special award of 40% under Regulation 664, finding the insurer acted unreasonably by maintaining its denial despite its own catastrophic assessors' reports.

The plaintiff's former solicitors, Lofranco Corriero, brought a motion for a solicitor's charging order under s.34 of the Solicitors Act, seeking a first charge on monies (damages and costs) awarded to the plaintiff at trial, in priority to the defendants' right of set-off for their own costs.

The court dismissed the motion, finding that no property or fund existed upon which a charge could be imposed.

The trial judge's final order, after applying statutory deductibles, credits, and Rule 49 cost consequences, resulted in a net payment from the plaintiff to the defendants.

The court emphasized that a solicitor's efforts must result in a net benefit or recovery of property for a charging order to be granted, and that severing the trial judge's order to create a fund would undermine the purpose of Rule 49.10.

The appellants appealed the dismissal of a third party claim arising from a tug-of-war injury.

The plaintiff was severely injured during a recreational tug-of-war at a campground when his arm became caught in a loop in the rope, resulting in amputation of his forearm.

The appellants sought contribution and indemnity from the third parties who participated in the game.

The motion judge dismissed the third party claim, finding that the third parties owed no duty of care to the plaintiff.

The Court of Appeal upheld the dismissal, holding that the third parties did not fall within any of the circumstances that would impose a positive duty to act, and that the injury was not a reasonably foreseeable result of participation in a recreational tug-of-war game.

The applicant was injured in a motorcycle accident and applied for catastrophic impairment benefits, which the insurer denied.

The central issue was whether the applicant's impairments met the 55% Whole Person Impairment (WPI) threshold, with the insurer arguing that a pre-existing back condition accounted for a significant portion of his current disability.

The arbitrator rejected the insurer's expert evidence regarding the pre-existing condition and symptom magnification, finding the applicant's experts more reliable.

The arbitrator concluded that the applicant sustained a catastrophic impairment as a direct result of the accident and awarded him his full arbitration expenses.

Following a jury trial where the plaintiff was awarded general damages, housekeeping, and medical/rehabilitation costs, the court addressed post-trial issues including the application of the monetary threshold and deductible, prejudgment interest, collateral benefits, and costs.

The court applied the August 1, 2015 deductible of $37,385.17 to the non-pecuniary award, reducing it to $62,614.83, and credited the defendants for collateral benefits received by the plaintiff.

A 5% prejudgment interest rate was applied.

Due to the defendants' substantial Rule 49 offers exceeding the jury's net award, significant costs were awarded to the defendants, while the plaintiff's claimed costs were reduced.

A token cost award was also made to the defendants for a mistrial caused by the plaintiff's counsel.

The defendant Western Assurance Company brought a motion to amend a previously issued consent judgment that approved an infant settlement and dismissed the action against another defendant.

Western Assurance sought to amend the judgment to dismiss the entire action without costs, relying on a prior unapproved release.

The court dismissed the motion, finding that the prior judgment was fully executed and could not be amended to include a non-party to that settlement.

The court directed that a separate motion under Rule 7.08 is required to approve the settlement and dismiss the action against Western Assurance.

The respondent insurer requested a reconsideration of a Tribunal decision which found that the applicant's injuries fell outside the Minor Injury Guideline (MIG) due to psychological impairments.

The insurer argued the Tribunal made significant errors of fact and law in assessing the medical evidence and failing to determine the predominant injury.

The Executive Chair denied the request, finding that the hearing adjudicator carefully weighed the evidence and made determinations of fact within their jurisdiction, and did not make any significant error of law or fact that would have led to a different decision.

Following the dismissal of the plaintiffs' personal injury action on summary judgment, the court determined the costs payable.

The defendants sought costs from the plaintiffs and argued the plaintiffs should also be liable for the costs of the third parties, whom the defendants had joined.

The court applied the general rule that an unsuccessful plaintiff is not responsible for the costs of third parties they did not sue, finding no exceptional circumstances to depart from this rule.

The plaintiffs were ordered to pay the defendants $44,000 in partial indemnity costs, while the defendants were ordered to pay the full costs claimed by the various third parties, totaling over $133,000.

The applicant sought interim accident benefits, including non-earner benefits, attendant care benefits, and medical/assessment benefits, following a motor vehicle accident.

The insurer denied the benefits.

The arbitrator found that the applicant had significant pre-existing physical and psychological conditions that were not proven to be exacerbated by the accident.

The arbitrator concluded that the applicant failed to demonstrate a compelling need or urgency for interim benefits, as he continued to receive medical treatment and had some assistance for his day-to-day needs.

The motion for interim benefits was dismissed.

The Applicant was injured in a 2006 motor vehicle accident and applied for a non-earner benefit.

During the pre-hearing, the Applicant sought to withdraw his application on a without-costs basis, which the Insurer opposed, seeking $8,288.40 in expenses on the basis that the Applicant was driving without insurance.

The Arbitrator permitted the withdrawal and held a written expense hearing.

The Arbitrator denied the Insurer's request for expenses, finding that neither party did their due diligence, as the Insurer's defence regarding the lack of insurance only became clear later in the process, after which the Applicant reasonably sought to withdraw the claim before a hearing.

In a motor vehicle accident case, the appellant's insurer appointed defence counsel under a non-waiver agreement.

Following a trial on liability, the insurer sought to intervene in the appeal to challenge a finding regarding insurance coverage, while a co-defendant moved to remove the appellant's counsel for conflict of interest.

The Court of Appeal granted the motion to remove counsel, finding an inescapable conflict between the interests of the appellant and the insurer who instructed counsel to appeal the coverage finding.

The motion to intervene was dismissed because the insurer failed to show it would be adversely affected by the judgment and bore responsibility for the confusion at trial.

The plaintiff sought damages for negligence arising from a motorcycle collision in which a rider lost control, crossed the centre line, and struck the plaintiff’s vehicle, causing death and serious injury.

The court considered whether two other motorcyclists riding with the deceased rider were negligent and contributed to the accident.

Evidence included their guilty pleas under the Highway Traffic Act and video footage showing excessive speeds, unsafe lane changes, and stunt riding during the group ride.

The court found that the three motorcyclists were engaged in a joint venture involving unlawful and dangerous driving that created a foreseeable risk of serious harm to other road users.

The two defendants were each found 25 per cent liable for the plaintiff’s damages, jointly and severally.

The plaintiff was injured in a motor vehicle accident and subsequently received Canada Pension Plan (CPP) and Hospitals of Ontario Pension Plan (HOOP) disability benefits.

The defendants brought a motion to determine whether these benefits were deductible from any tort award for loss of income or loss of earning capacity under s. 267.8(1)2 of the Insurance Act.

The motion judge ruled they were not deductible.

The Court of Appeal dismissed the defendants' appeal, holding that the benefits fall within the private insurance exception at common law, and the statutory addition of 'loss of earning capacity' did not clearly and unambiguously change this rule.

Furthermore, the benefits were paid in respect of the plaintiff's disability, not 'in respect of the incident' as required by the statute.