Nicholas Mester

Case conference endorsement in a civil action that had been transferred from Ottawa to Toronto on consent.

The defendants sought to vacate the case conference following the transfer order, arguing the Ottawa court lacked authority to make further decisions.

The court declined to vacate, finding nothing in the transfer order or the Rules prevented it from finalizing pending issues to ensure an orderly transition.

The court directed the parties to proceed to examinations for discovery rather than pursue further production motions, reasoning that outstanding production issues could be canvassed under oath during examinations and a timetable was established on consent.

The applicant requested a reconsideration of a Tribunal decision that found her injuries fell within the Minor Injury Guideline (MIG) and denied her treatment plans.

The applicant argued the Tribunal misinterpreted the medical evidence of her expert and erred by allowing the insurer to rely on a MIG position without conducting a section 44 examination.

The Tribunal dismissed the request, finding that section 44 examinations are not mandatory and that the original decision correctly weighed the medical evidence, including a CT scan that contradicted the applicant's expert regarding a suspected spinal fracture.

The applicant sought post-104-week income replacement benefits following a motor vehicle accident.

The respondent initially approved the benefits but denied them four days later based on the same Insurer's Examination reports.

The Tribunal found that the respondent's denial was a correction of the initial approval and that the applicant failed to prove a complete inability to engage in any employment for which he was reasonably suited.

The applicant's expert reports were given little weight due to a lack of objective testing and failure to outline functional limitations.

The claim for income replacement benefits and interest was dismissed.

However, the Tribunal awarded the applicant $500 in costs because the respondent breached a case conference report and order by producing documents 137 days late, which interfered with the efficiency of the dispute resolution process.

The applicant sought statutory accident benefits following a motor vehicle accident.

The respondent denied the benefits, arguing the applicant's injuries fell within the Minor Injury Guideline (MIG).

The Tribunal found the applicant failed to provide medical evidence to establish his injuries warranted removal from the MIG.

The Tribunal also rejected the applicant's argument that the treatment plans were payable due to non-compliant denial notices, finding the respondent's notices complied with the Schedule.

The application was dismissed.

The applicant sought statutory accident benefits for optometric services, an eye assessment, and speech language pathology following a 2019 motor vehicle accident.

The respondent denied the treatment plans, arguing the applicant had not proven they were reasonable and necessary.

The Tribunal found that the applicant failed to provide sufficient medical evidence to support the ongoing need for the proposed treatments years after the accident, noting her high level of functioning and lack of recent complaints in clinical records.

The application was dismissed.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits from the respondent insurer.

The respondent denied the benefits, arguing the applicant's injuries fell within the Minor Injury Guideline (MIG).

The applicant applied to the Licence Appeal Tribunal, arguing she should be removed from the MIG due to pre-existing lower back and knee conditions.

The Tribunal found that the applicant failed to provide compelling medical evidence that her pre-existing conditions precluded her recovery within the MIG limits.

The Tribunal concluded the applicant's injuries were predominantly minor and subject to the $3,500 MIG limit.

The application for disputed treatment plans, interest, and an award was dismissed.

The applicant was injured in a rear-end motor vehicle accident and sought statutory accident benefits.

The insurer denied the benefits, arguing the applicant's injuries fell within the Minor Injury Guideline (MIG).

The Tribunal found that the applicant suffered from psychological impairments, including somatic symptom disorder and adjustment disorder, removing him from the MIG.

The Tribunal denied the claim for physiotherapy services as the applicant failed to prove they were reasonable and necessary.

However, the Tribunal approved a psychological assessment up to the Schedule limit of $2,200.00 and a psychological treatment plan for $5,668.28, along with interest on overdue payments.

The applicant sought statutory accident benefits following a motor vehicle accident.

The respondent insurer denied the claims for non-earner benefits and two treatment plans in 2019.

The applicant filed an application with the Tribunal in 2024, well beyond the two-year limitation period under section 56 of the Schedule, even accounting for the 183-day suspension under O. Reg. 73/20.

The Tribunal found the insurer's denial notices were valid and triggered the limitation period.

As the applicant provided no submissions to justify an extension, the application was dismissed as statute-barred.

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

The respondent denied the benefits in June 2017.

The applicant filed an application with the Tribunal in May 2023, nearly six years later.

The Tribunal found that the respondent's denial was clear and unequivocal, triggering the two-year limitation period under s. 56 of the Schedule.

As the applicant did not file submissions or request an extension under s. 7 of the LAT Act, the Tribunal declined to extend the limitation period and dismissed the application as statute-barred.

The applicant sought statutory accident benefits following a motor vehicle accident.

The respondent insurer denied certain benefits and requested the applicant attend insurer examinations under s. 44 of the Schedule.

The applicant failed to attend, arguing the notices of examination were invalid because they did not specifically mention her suspected concussion.

The Tribunal found the notices were valid and compliant with s. 44(5), as the insurer relied on the information available at the time.

The Tribunal declined to exercise its discretion under s. 55(2) to allow the application to proceed, noting the applicant provided no reasonable explanation for her non-attendance and the passage of four years prejudiced the insurer's ability to assess her injuries.

The application was dismissed and the applicant's request for costs was denied.

The applicant sought statutory accident benefits following a motor vehicle accident.

The insurer raised several preliminary issues.

The Tribunal found the applicant was barred from proceeding with disputes over four treatment plans due to her failure to attend scheduled insurer examinations, but was not barred regarding a fifth plan.

The Tribunal also held that the claim for attendant care benefits was not premature, as the insurer's failure to agree to pay constituted a dispute.

Finally, the Tribunal found the applicant was time-barred from disputing the denial of income replacement benefits and was precluded from claiming them for the period prior to submitting a disability certificate.

The applicant sought medical and rehabilitation benefits following a motor vehicle accident.

The insurer denied the benefits, arguing the applicant's injuries fell within the Minor Injury Guideline (MIG).

The applicant argued for removal from the MIG based on pre-existing degenerative disc disease, chronic pain, and psychological injuries.

The Tribunal found the applicant failed to prove that his pre-existing condition precluded recovery within the MIG, or that he suffered from accident-related chronic pain or psychological injuries.

As the MIG limits were exhausted, the application for further benefits, interest, and a special award was dismissed.

The applicant sought statutory accident benefits following a motor vehicle accident.

The insurer determined the injuries fell within the Minor Injury Guideline and denied treatment plans exceeding the monetary limit.

The insurer requested an Insurer's Examination to determine if the injuries were predominantly minor, which the applicant refused to attend.

The Tribunal found that the insurer's notice met the requirements of section 44(5) of the Schedule and that the applicant failed to provide a valid reason for non-attendance.

Consequently, the applicant was statute-barred from proceeding under section 55(1), and the application was dismissed.

The applicant sought statutory accident benefits following a motor vehicle accident.

The insurer denied two treatment plans on the basis that the applicant's injuries fell within the Minor Injury Guideline (MIG) and scheduled section 44 insurer's examinations.

The applicant refused to attend the examinations and filed an application with the Licence Appeal Tribunal over six months after the two-year limitation period expired.

The Tribunal found the application was statute-barred due to the expired limitation period and declined to extend it under section 7 of the LAT Act.

Furthermore, the Tribunal held the applicant was barred from proceeding under section 55 of the Schedule for failing to attend the properly scheduled examinations.

The plaintiffs, Steven and Carolyn Nadeau, brought an action for damages after Steven Nadeau was injured by an automatic garage door.

They sued the building owner (Ontario), property manager (CBRE), door installer (Wilcox), garage manager (SP Plus), and maintenance contractor (Haws).

Wilcox, SP Plus, and Haws each brought motions for summary judgment to dismiss the action against them.

The court granted Wilcox's motion, finding no duty of care owed to the plaintiffs and no basis for cross-claims, deeming it a rare case suitable for partial summary judgment.

The motions brought by SP Plus and Haws were dismissed, as genuine issues requiring a trial remained regarding their respective duties of care and, for SP Plus, ambiguities in contractual indemnification clauses.

The plaintiff suffered injuries at a pub when another patron, allegedly intoxicated, fell on him.

The plaintiff sued the pub operators and the landlord, 2320152 Ontario Inc. The landlord brought a motion for summary judgment, arguing it was not an 'occupier' under the Occupiers’ Liability Act.

The court granted summary judgment, finding that the landlord, operating under a 'completely carefree net lease' with limited involvement in the pub's operation, did not meet the definition of an occupier.

The action against the landlord was dismissed.

The appellant appealed a jury award of zero damages and a trial judge's ruling that her claim for non-pecuniary loss did not meet the statutory threshold under the Insurance Act following a motor vehicle accident.

The appellant argued the jury verdict was perverse and the trial judge erred in his threshold analysis.

The Court of Appeal dismissed the appeal, finding it was open to the jury to conclude the appellant's post-accident difficulties were inevitable due to pre-existing osteoarthritis, and there was ample evidence supporting the trial judge's threshold ruling.

The Third Parties moved for summary judgment to dismiss claims against them arising from a motor vehicle accident.

The Defendant, Samra, brought a cross-motion to amend her Third Party Claim to allege the Plaintiff, Juneja, was the driver.

The court found no genuine issue for trial regarding the Third Parties' liability, concluding Samra was solely responsible for a precipitous left turn.

The summary judgment motion was granted, dismissing the Third Party Claim, and Samra's cross-motion was dismissed as moot.

The defendant brought a motion for leave under Rule 48.04 to compel the plaintiff to re-attend for a further examination for discovery and to permit examination on all events since the last discovery.

The action arose from a motor vehicle accident in 2005, with discovery in 2011 and the action set down for trial in 2015.

The court found the evidentiary basis for the motion, an affidavit by an articling student, problematic due to reliance on hearsay regarding the plaintiff's alleged employment change.

The defendant failed to demonstrate a "substantial or unexpected change in circumstances" or that refusing leave would be "manifestly unjust," as required by Rule 48.04(1).

The motion was dismissed, with the court also noting deficiencies in the motion record, including the absence of tax returns and discovery undertakings.

Following a jury award for general damages and future chiropractic care, the court addressed several post-trial issues.

These included the applicable statutory deductible, the rate of prejudgment interest, whether future chiropractic care costs should be deducted from the plaintiff's accident benefits settlement, a request for a remedial penalty against the defendant insurer for its conduct during mediation, and the final costs award.

The court determined that the $30,000 deductible applied (as the jury award predated the statutory amendment), prejudgment interest was 5% per annum (as it is a substantive matter not to be applied retrospectively), and future chiropractic care was not deductible from accident benefits.

The court declined to impose a remedial penalty, finding the insurer's mediation participation meaningful despite its aggressive stance.

Ultimately, the plaintiff was awarded costs of $106,906.90.