Rachel Andrews

The applicant insurance company brought an application to the Superior Court seeking an order to compel the production of records from non-parties for an ongoing License Appeal Tribunal (LAT) proceeding regarding statutory accident benefits.

The court dismissed the application, finding that the LAT has exclusive jurisdiction over disputes for statutory automobile accident benefits under section 280 of the Insurance Act.

The proper forum to address non-compliance with production orders is at the LAT hearing.

Substantial indemnity costs were awarded to the respondent.

The appellant was injured when the public transit bus she was riding stopped abruptly, throwing her forward.

She sought statutory accident benefits, which were denied by the Licence Appeal Tribunal under s. 268(1.1) of the Insurance Act because the bus did not collide with another vehicle or object.

On appeal, the appellant argued she constituted 'any other object' under the statute.

The Divisional Court dismissed the appeal, holding that the plain wording and context of the provision require the object to be outside the vehicle, and a bus does not collide with a person inside it.

The plaintiff brought a motion for leave to admit a late-served expert report on broker negligence in an action arising from a motorcycle accident.

The expert report was served five months after the deadline under the Rules of Civil Procedure and one month after a without-prejudice deadline set by the pre-trial judge.

The court applied the two-part test under Rule 53.08(1), finding that while the explanations of difficulty finding an expert and staff turnover were problematic, the unique circumstance that the report was served nearly two years before the reconvened pre-trial tipped the balance in the plaintiff's favour.

Leave was granted.

The court also directed the order of trial, ordering the tort action against the municipality to proceed first, followed by the broker negligence action.

The appellant sought judicial review and appealed a Licence Appeal Tribunal (LAT) decision dismissing his application for Income Replacement Benefits (IRBs) as statute-barred.

The LAT found that the insurer's May 3, 2021 letter constituted a clear and unequivocal denial of benefits, triggering the two-year limitation period under the Statutory Accident Benefits Schedule.

The Divisional Court upheld the LAT's decision, finding no error in its application of the limitation period or its refusal to extend the time to appeal.

The court also rejected the appellant's arguments regarding discoverability and the impact of subsequent correspondence from the insurer.

The applicant requested a reconsideration of a decision finding she was not catastrophically impaired.

She argued the Tribunal breached procedural fairness by failing to assess two spheres of Criterion 8, and made errors of law and fact in assessing her visual and psychiatric impairments.

The Tribunal dismissed the request, finding no breach of procedural fairness as the statute did not require further analysis.

The Tribunal also found no errors of law or fact, noting that the applicant's experts failed to follow the AMA Guides' methodology for rating impairments.

The request for reconsideration was dismissed.

The applicant requested a reconsideration of a Licence Appeal Tribunal decision which found she was not catastrophically impaired and denied her claims for attendant care, treatment plans, housekeeping, and costs.

The applicant argued the Tribunal breached procedural fairness and made errors of fact and law in assessing various Whole Person Impairment (WPI) ratings, including those for upper extremity, mental status, diplopia, medications, and social functioning.

The Adjudicator dismissed the request, finding no material breach of procedural fairness as the applicant had ample opportunity to present her case during the 11-day hearing.

Furthermore, the Adjudicator concluded that no errors of fact or law were made that would have resulted in a different outcome.

The appellant slipped and fell on black ice while holding her key fob and reaching to unlock her car door.

She applied for accident benefits, which the insurer initially paid but later disputed by raising a preliminary issue that the incident was not an 'accident' under s. 3(1) of the SABS.

The Licence Appeal Tribunal found the incident was not an accident.

On appeal, the Divisional Court held that the LAT did not err in allowing the preliminary issue to be raised late, but erred in law in its causation analysis.

The court found the appellant was engaged in the ordinary use of her vehicle and the ice was not an intervening cause, concluding the incident met the definition of an accident.

The appellant appealed a Licence Appeal Tribunal (LAT) decision regarding her entitlement to attendant care benefits and home modifications under the Statutory Accident Benefits Schedule following a 2010 motor vehicle accident.

The appellant argued LAT erred in determining the applicable hourly rates, assessing her need for supervisory care, denying home modifications, and violating her Charter equality rights by distinguishing between mental and physical impairments.

The Divisional Court dismissed the appeal, finding no errors of law, as LAT correctly applied the 1996 Schedule rates, provided adequate reasons for preferring the respondent's expert evidence, and appropriately applied the reasonable and necessary test for home modifications.

The London & Middlesex Housing Corporation (LMHC) brought a summary judgment motion to dismiss a claim against it by a tenant, Keith Horn.

Horn alleged LMHC was liable for an assault and battery committed by another tenant, Brian Latondress, who was also employed by LMHC as a Resident Contact.

Horn claimed direct negligence in hiring Latondress and/or vicarious liability.

LMHC argued that Latondress's actions were either self-defence or an independent intentional act outside the scope of his employment.

The court dismissed LMHC's motion, finding that there was a genuine issue for trial regarding the nexus between Latondress's conduct and his employment, particularly concerning vicarious liability under the Salmond test and the "enterprise risk" principle.

The plaintiffs brought a motion for the pre-trial determination of a question of law regarding whether the defendant tort insurer was entitled to deduct long-term disability settlement funds received by the plaintiff from a separate action against her disability carrier.

The court applied the 'silo' approach and found that the settlement was for an income replacement claim.

The court held that the defendant is entitled to deduct the settlement amount from the tort damages for income loss pursuant to s. 267.8(1) of the Insurance Act.

The plaintiff tripped and fell on a 50 mm milled asphalt edge while crossing a road under construction at night, sustaining a broken arm.

She sued the municipality under the Municipal Act and the paving contractor under the Occupiers' Liability Act.

The court found that the defendants breached their respective duties by failing to install a temporary ramp at the pedestrian crossing, which constituted an unreasonable hazard.

However, the plaintiff was found 35% contributorily negligent for failing to keep a proper lookout in a known construction zone.

The defendants were held jointly and severally liable for 65% of the agreed damages.