Philip Tyborski

The applicant insurer appealed an arbitrator's decision in a priority dispute regarding accident benefits.

The arbitrator had found that the applicant failed to establish that the claimant and his co-parent were spouses under s. 224(1)(c)(ii) of the Insurance Act, making the applicant the priority insurer.

The Superior Court of Justice applied the appellate standard of review, finding no extricable error of law in the arbitrator's application of the M. v. H. criteria for a conjugal relationship.

Applying the palpable and overriding error standard, the court held that the arbitrator's conclusion was supported by the evidence, which included contradictory testimony and surveillance evidence of limited weight.

The appeal was dismissed.

During a jury trial, the plaintiff brought a motion under Rule 52.10 of the Rules of Civil Procedure to allow the jury to determine if past and future care costs were warranted, despite having called no evidence on these issues.

The plaintiff proposed that if the jury found such costs warranted, the quantum could be determined later by a judge.

The court dismissed the motion, finding that the plaintiff failed to exercise reasonable diligence in obtaining the necessary expert evidence before trial.

The court also held that bifurcating the issue would improperly remove the determination of the extent and quantum of future care costs from the jury.