Nestor E. Kostyniuk

The plaintiffs were successful at a jury trial for damages arising from a motor vehicle accident, with the defendant Hann found fully liable and the defendant Albright found not liable.

In this post-trial endorsement, the court addressed several issues including costs, policy limits, and Family Law Act damages.

The court found the plaintiffs' motion regarding the insurer's policy limits premature.

The court granted a Sanderson order, requiring the unsuccessful defendant to pay the successful defendant's costs, finding it was reasonable for the plaintiffs to keep the successful defendant in the action.

The court fixed the plaintiffs' costs on a partial and substantial indemnity basis.

Finally, the court upheld the jury's award of Family Law Act damages to the plaintiff mother for 'on-demand guidance' provided to her brain-injured daughter, finding such support compensable as 'other services' under s. 61(1)(d) of the Family Law Act.

Following a successful claim for statutory accident benefits, the applicant sought expenses for the arbitration and expense hearings.

The insurer conceded entitlement but disputed the quantum of hours claimed and the applicability of HST to certain disbursements.

The Arbitrator reduced the billable hours using a 3:1 ratio for the hearing length, awarding 98 hours at $150 per hour.

The Arbitrator also found that HST was applicable to the disbursements for expert reports, as they were not incurred as an agent.

Total expenses of $26,669.63 were awarded to the applicant.

Following a preliminary issue hearing where the insurer successfully proved fraud and was awarded expenses, the parties could not agree on the quantum.

The arbitrator assessed the insurer's costs, applying a 2:1 ratio for preparation to hearing time and capping the insurer's counsel's hourly rate at the Legal Aid rate of $96.95 per hour pursuant to Rule 78 of the Dispute Resolution Practice Code.

The arbitrator awarded the insurer $3,456.23 in total expenses, inclusive of fees, disbursements, and GST, while disallowing the $3,000 assessment fee.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits, specifically non-earner benefits, from the insurer.

The parties proceeded to arbitration at the Financial Services Commission of Ontario.

The arbitrator applied the principles from Heath v. Economical Mutual Insurance Co. to determine whether the applicant suffered a complete inability to carry on a normal life.

The arbitrator found that the applicant failed to prove that the accident continuously prevented her from engaging in substantially all of her pre-accident activities, as she continued to perform most of her usual activities despite increased pain.

The application for non-earner benefits and interest was dismissed, and the issue of expenses was deferred.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits from the insurer, including income replacement benefits (IRBs) and medical benefits.

The insurer denied the benefits based on its assessors' reports, which concluded the applicant could return to his pre-accident employment as a heavy labourer.

The arbitrator found the applicant's evidence and his experts' reports more credible, noting the insurer's assessors lacked complete information and ignored the applicant's chronic pain.

The arbitrator held that the applicant met the test for IRBs both before and after the 104-week mark, as he suffered a complete inability to engage in suitable employment.

The requested medical benefits were also found to be reasonable and necessary.

However, the arbitrator dismissed the claim for a special award, finding the insurer did not act unreasonably in relying on its medical assessors, despite the flaws in their reports.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer issued a Notice of Stoppage.

The applicant returned to work but later sought further benefits, filing an application for mediation more than five years after the Notice of Stoppage.

The arbitrator held that the two-year limitation period under the Insurance Act and the Statutory Accident Benefits Schedule was not suspended by the applicant's return to work.

The application was dismissed as statute-barred.

The applicant was involved in a motor vehicle accident and claimed statutory accident benefits from the insurer, relying on a liability certificate he allegedly obtained from an independent broker.

The insurer denied coverage, arguing the certificate was fraudulent and it had no connection to the applicant.

The arbitrator found the applicant's evidence regarding the purchase of the insurance to be completely lacking in credibility and concluded the certificate was a forgery.

Applying the 'nexus' test, the arbitrator held that there was no objective or subjective connection between the applicant and the insurer.

Therefore, the insurer had no duty to adjust the claim and was not obliged to respond to the application for accident benefits.

The appellants appealed a trial judge's decision to accept expert opinion evidence on Manitoba law, which concluded their claim was barred by a Manitoba Act.

The Court of Appeal dismissed the appeal, finding it was open to the trial judge to accept the unqualified and unopposed expert opinion.

The Applicant was injured in a motor vehicle accident and applied for statutory accident benefits.

The Insurer denied a Treatment Plan and scheduled an in-home assessment.

The Applicant declined to participate in the assessment, citing lack of space and interference with his sister's work.

The Insurer argued the Applicant unreasonably declined to participate.

The Arbitrator found that the Applicant reasonably declined to participate because the assessment would interfere with his sister's work at home, and the Insurer's assessor compromised her professional neutrality by threatening the Applicant with consequences for non-participation.

The insured was injured in a motor vehicle accident and applied for statutory accident benefits.

After mediation failed, the insured commenced a civil action in the Superior Court of Ontario and subsequently applied for arbitration at the Financial Services Commission of Ontario.

The insurer brought a motion to dismiss the arbitration on the basis of the pre-existing civil action.

The Arbitrator found that the arbitration involved substantially similar issues to the civil action, and allowing both to proceed would unduly duplicate proceedings and risk inconsistent results.

The motion was granted and the arbitration was dismissed.

The appellant appealed the dismissal of her slip and fall claim following a jury trial.

She argued the trial judge erred by failing to discharge the jury after the respondents' counsel made allegedly prejudicial comments in his closing address regarding the credibility of independent witnesses.

The Court of Appeal dismissed the appeal, finding the trial judge properly exercised his discretion to retain the jury and provide a correcting instruction, and that the jury's verdict would inevitably have been the same given the evidence.

Following a successful motion where the applicant was denied interim benefits, the insurer sought its expenses for the motion.

The arbitrator rejected the applicant's request to reserve expenses to the full hearing, finding it appropriate to determine them as the arbitrator who heard the preliminary issue.

Applying the criteria under O. Reg. 664, the arbitrator found the insurer was completely successful and entitled to expenses.

However, the arbitrator reduced the claimed preparation time due to duplication and the straightforward nature of the motion, awarding the insurer $1,046.44 in total expenses.

The appellant appealed the order of the trial judge.

The Court of Appeal found the trial judge's reasons to be exemplary and agreed with her analysis and conclusion.

The appeal was dismissed with costs fixed at $7,000.

The applicant sought interim income replacement benefits following a motor vehicle accident.

The insurer denied the claim, alleging it was out of time.

The applicant brought a motion for interim benefits, claiming urgent financial need and a deterioration in her physical condition.

The arbitrator dismissed the motion, finding that the applicant failed to establish a prima facie case of entitlement, as the medical evidence largely indicated she was able to perform her essential tasks of employment.

Furthermore, the applicant failed to provide sufficient evidence to prove financial urgency.

The appellants appealed a summary judgment decision regarding a motor vehicle accident in Manitoba involving two visitors to the province.

The Court of Appeal allowed the appeal, finding that neither party tendered admissible expert evidence on the interpretation of the applicable Manitoba statute.

The court concluded that the proper interpretation of the statute presented a genuine issue for trial, and the motion judge erred in determining it on a summary judgment motion.

The plaintiff was seriously injured when a snowmobile track shredded while the defendants were attempting to start it.

The defendants sought a declaration that their automobile insurer (TD) and their property insurer (Germania) had a duty to defend the negligence action.

The motion judge found that TD had a duty to defend, as the injuries arose from the ownership, use, or operation of a motor vehicle, and that Germania did not, as its policy excluded such claims.

TD appealed, arguing the motion judge erred in admitting affidavit evidence regarding coverage preconditions and in finding a duty to defend.

The Court of Appeal dismissed the appeal, holding that the affidavit evidence was properly admitted as it only affected coverage and not liability, and that the negligence claims were inextricably linked to the use and operation of the snowmobile, thus falling within TD's coverage and Germania's exclusion clause.

The applicant sought statutory accident benefits following an alleged incident where a taxi she was riding in mounted a curb, causing her pain.

The insurer denied the claim, arguing the incident did not constitute an accident under the Schedule.

The arbitrator found that the applicant's ongoing pain complaints were related to a pre-existing somatoform disorder and a prior bus accident, rather than any physical injury sustained in the taxi.

The arbitrator concluded that no accident occurred within the meaning of the Schedule and dismissed the claim for weekly and caregiver benefits.

The moving parties, a law firm and its lawyer, brought a motion to withdraw as solicitors of record for the applicant in an ongoing statutory accident benefits arbitration, citing an irrevocable breakdown in the solicitor-client relationship.

The applicant opposed the withdrawal, arguing prejudice due to the significant delay in the proceedings, which stemmed from 1993 motor vehicle accidents.

The arbitrator first determined, based on psychiatric evidence, that the applicant possessed the capacity to instruct counsel.

The arbitrator then found that while he had no authority to force a solicitor to continue representing a client against their will, he could impose conditions on the withdrawal to mitigate prejudice under Rule 9.8 of the Dispute Resolution Practice Code.

The motion to withdraw was granted, subject to conditions including that the law firm provide a different lawyer to act as amicus curiae at the upcoming hearing.

Expenses for a previously adjourned hearing were awarded against the moving parties.

The moving party, counsel of record for the applicant, brought a motion to be removed as solicitor of record due to an alleged breakdown in the solicitor-client relationship.

The applicant opposed the motion.

The arbitration had been delayed for years due to concerns regarding the applicant's capacity to instruct counsel, and the moving party's law firm had previously undertaken to have a litigation guardian appointed but failed to do so.

The arbitrator found that the moving party failed to fulfill a subsequent undertaking to produce medical evidence addressing the applicant's capacity.

Given the ongoing ambiguity regarding capacity, the failure to abide by undertakings, and the prejudice to the applicant, the arbitrator declined to exercise discretion to release the moving party as solicitor of record and adjourned the matter for the production of medical evidence.

The insurer appealed an arbitrator's decision awarding the insured income replacement benefits and a $2,500 special award following a minor car wash collision.

The insurer argued the arbitrator erred procedurally by allowing a key medical expert to testify by telephone and substantively by misapprehending the medical evidence regarding the insured's pre-existing conditions.

The Director's Delegate dismissed the appeal regarding income replacement benefits, finding no procedural unfairness and sufficient evidentiary basis for the arbitrator's causation findings.

However, the Director's Delegate rescinded the special award, concluding the arbitrator erred by raising it on his own initiative without providing the insurer adequate notice or opportunity to respond, and by failing to properly assess whether the insurer's withholding of specific medical expenses was unreasonable.