Robert Michael Ben

The defendants, William and Mary Wade, sought an extension of time to bring a motion for summary judgment to dismiss the action against them, alleging that trees on their property obstructed visibility at an intersection where a serious motor vehicle collision occurred.

The plaintiffs, the Greens, opposed the extension.

The court dismissed the Wades' motion, finding substantial delay without satisfactory explanation, significant prejudice to the plaintiffs, and a risk of inconsistent factual findings if the summary judgment motion proceeded.

The court emphasized that the novel legal question of a private property owner's duty of care to motorists on adjacent roadways is best determined at a full trial, aligning with principles of proportionality, timeliness, and affordability.

The insurer raised a preliminary issue seeking to stay the arbitration pending the applicant's attendance at an updated occupational therapy in-home assessment and a psychological examination under section 44 of the Statutory Accident Benefits Schedule.

The applicant argued the occupational therapy assessment was causing him severe physical and psychological distress.

The arbitrator ordered the arbitration stayed until the applicant completes the psychological assessment and the remaining functional testing for the occupational therapy assessment, though the latter could be conducted by a different occupational therapist.

The arbitrator also ruled that the applicant's service provider was not required to speak with the insurer's assessor or provide further documentation under section 46.2, as sufficient information had already been provided.

The plaintiff in a motor vehicle accident tort action sought to schedule a motion for partial summary judgment regarding contributory negligence and non-pecuniary general damages.

The trial was already fixed for a few months later.

The court refused to schedule the motion, finding that allowing some damages claims to proceed by summary judgment while others went to trial risked inconsistent findings and duplication of evidence.

Applying the principles of proportionality, timeliness, and affordability, the court concluded that scheduling the motion shortly before trial was not appropriate.

The applicant was injured while riding as a passenger on an ATV.

The insurer denied certain accident benefits on the basis that the applicant knew or ought to have known the driver was operating the ATV without the owner's consent.

The applicant brought a motion for the production of the Ontario Provincial Police investigation file.

The arbitrator held that under section 22 of the Insurance Act, a FSCO arbitrator has the power to issue a Wagg order compelling the production of police records.

As the OPP and Attorney General were served but did not appear to assert any public interest immunity, and the documents were already vetted in a related tort action, the arbitrator ordered the OPP to produce the unredacted file.

The applicant insurer sought judicial review of a Director's Delegate decision upholding an arbitrator's award for private school tuition and a special award for unreasonably withholding benefits under the Statutory Accident Benefits Schedule.

The Divisional Court found the Delegate's broad interpretation of 'incurred' and 'undertaken' under s. 15 of SABS was reasonable.

The court also upheld the finding that the insurer unreasonably denied benefits by relying on flawed expert reports and ignoring the insured's future needs.

The court fixed the quantum of the special award at $20,000.

The plaintiffs brought a motion seeking relief to prevent an administrative dismissal and to permit substituted service of court documents.

The court considered evidence that the responding party had been difficult to serve and that traditional service methods were ineffective.

The court found that staying any administrative dismissal was necessary in the interests of justice.

The court further concluded that service by posting the documents to the responding party’s Facebook page was likely to bring the materials to their attention.

The motion was granted and the requested orders were directed to issue.

The applicant, who was injured in a motor vehicle accident, applied for arbitration regarding the quantum of his attendant care benefits.

The insurer requested that the applicant attend an occupational therapy examination and a neuropsychological examination pursuant to section 44 of the Statutory Accident Benefits Schedule.

The applicant refused, arguing the insurer had sufficient information and failed to comply with section 42(7) of the Schedule.

The arbitrator found that the requested examinations were reasonably necessary given the time elapsed since the last examinations and the changing nature of the applicant's needs.

The arbitrator also held that the insurer's non-compliance with section 42(7) did not bar the request.

The arbitration was stayed pending the applicant's attendance at the examinations.

Following a jury trial in a motor vehicle personal injury action, the plaintiffs moved for an order staying the determination of costs pending satisfaction of the judgment or resolution of a separate insurance coverage dispute involving the liable defendant and his insurer.

The plaintiffs argued that costs should be deferred because the verdict was under appeal and because the defendant’s ability to pay costs was uncertain pending determination of coverage, particularly given their intention to seek a Sanderson costs order.

The court held that the existence of an appeal or unresolved insurance coverage litigation does not justify departing from the usual practice of fixing costs after trial.

The ability to pay costs is only one factor in determining whether a Sanderson order is appropriate and does not require postponement of the costs determination.

The motion for a stay of the costs determination was dismissed.

Following a 21‑day personal injury trial concerning municipal liability for road conditions and signage, the successful plaintiffs sought partial indemnity costs exceeding $1,045,000.

The court considered the complexity of the litigation, the extensive expert evidence, and the reasonableness of the fees and disbursements claimed.

Applying the principle that costs must be fair and reasonable for the unsuccessful party to pay rather than fully reflective of the successful party’s expenditures, the court concluded that the amounts claimed exceeded reasonable expectations.

Significant reductions were made to both fees and disbursements.

Costs were fixed at $406,000 in fees and $200,000 in disbursements, plus applicable taxes.

The appellant insurer appealed an arbitrator's decision granting a special award to the respondent for unreasonably withholding payments for rehabilitation support worker services and private school tuition.

The Director's Delegate confirmed the appeal decision, finding that there was an adequate evidentiary foundation to support the arbitrator's finding that the insurer acted unreasonably.

The insurer had failed to consider new information, including a DVD with statements from the respondent's rehabilitation team, and relied on overlapping and preliminary assessments to deny benefits.

The plaintiffs brought a negligence action against a municipality arising from a single‑vehicle collision on a rural road curve that caused catastrophic injuries to a young driver.

The court considered whether the municipality breached its duty under s. 44 of the Municipal Act to keep the roadway in a reasonable state of repair, focusing primarily on inadequate warning signage and the absence of an advisory speed sign for a sharp curve.

Expert evidence established that proper signage, including a 40 km/h advisory speed tab and additional warning devices required by the Ontario Traffic Manual, should have been installed.

The municipality had not conducted any evaluation of the signage following amalgamation and allowed substandard signage to remain in place for years.

The court found the municipality liable for failing to maintain the road in a reasonable state of repair, but also held the driver contributorily negligent for failing to sufficiently reduce speed in snowy conditions.

The applicant, who sustained a serious brain injury after being struck by a dump truck as a pedestrian, brought a motion for interim benefits pending arbitration.

The insurer agreed to pay ongoing attendant care, housing, and assistive devices.

The arbitrator declined to order interim benefits for past attendant care, finding that the applicant had not demonstrated a compelling case or urgency, as there was no evidence that anyone was waiting to be paid for past care.

The insurer appealed an arbitrator's decision awarding the insured, a minor who sustained a catastrophic brain injury, private school tuition as a rehabilitation benefit and a $28,000 special award for unreasonably withholding benefits.

The Director's Delegate upheld the tuition award, finding no error in the arbitrator's conclusion that the expense was reasonable, necessary, and 'incurred' under the Schedule despite not being paid upfront.

The Delegate also upheld the entitlement to a special award, noting the insurer unreasonably relied on preliminary and flawed expert reports to deny benefits.

However, the Delegate set aside the quantum of the special award and remitted it to arbitration, finding the arbitrator failed to provide sufficient reasons explaining how the $28,000 figure was calculated.

The applicant sought expenses following a successful arbitration for statutory accident benefits.

The applicant claimed $75,719.35 in expenses, including legal fees and disbursements.

The insurer argued that the attendance of two senior counsel was unnecessary and disputed certain disbursements.

The arbitrator agreed that two senior counsel were not required for the hearing but allowed some time for the second counsel's pre-hearing work.

The arbitrator also disallowed disbursements for medical illustrations and a video, and reduced an expert's fee to the regulatory maximum.

The insurer was ordered to pay the applicant $50,525.60 in expenses, inclusive of HST.

During a civil jury trial arising from a motor vehicle accident involving a child pedestrian, the court ruled on the permissible scope of testimony from an accident reconstruction expert.

The plaintiffs sought to elicit opinion evidence concerning alleged deficiencies in the defendant vehicle’s braking system and on driver perception and reaction times.

The court held that Rule 53 of the Rules of Civil Procedure requires expert reports to clearly state the opinions being advanced and their factual bases, and an expert cannot introduce a new field of opinion not articulated in the report.

Because the expert’s reports did not opine that the brake condition contributed to the collision, such testimony would improperly expand the report.

The court also barred additional human factors opinion evidence as duplicative of testimony already provided by a qualified human factors expert.

The defendant moved to exclude examination for discovery transcripts on the basis that he did not have an interpreter during the first discovery and that some answers during the second discovery were given in broken English.

The moving party argued the transcripts were unreliable and unfair to use at trial.

The court held that the obligation to arrange for an interpreter rests with the party being examined and noted the defendant had an opportunity during the second discovery to correct earlier answers.

The court found that although the defendant would testify at trial through an interpreter, the discovery transcripts should not be struck.

Instead, the court directed that proposed read‑ins be reviewed to ensure fairness in light of the language issues.

During a jury trial arising from a motor vehicle accident involving a child pedestrian, the defendants moved for a mistrial following the plaintiffs’ opening address.

The court had previously ruled that a police mechanic could not provide expert opinion evidence regarding the condition or effect of the vehicle’s brakes.

In the opening address, plaintiffs’ counsel suggested that the defendant driver’s brakes were in an unsatisfactory condition and invited the jury to infer that this contributed to the accident, despite the absence of expert evidence supporting such a theory.

The court held that the opening address improperly contained argument, inaccurate statements about the police investigation, and suggestions that the jury act as enforcers of societal rules.

Because the comments invited the jury to draw conclusions unsupported by admissible evidence and could not be cured by a corrective instruction, a mistrial was declared.

During a civil jury trial arising from a pedestrian motor vehicle accident involving a child, the defendants moved for a mistrial after the plaintiffs’ counsel delivered an opening address containing alleged misstatements of law and improper argument.

The court found that counsel repeatedly misstated the reverse onus under the Highway Traffic Act by suggesting that all defendants bore the burden of disproving negligence, improperly argued factual conclusions regarding vehicle brake defects without supporting expert evidence, and displayed discovery transcript excerpts suggesting an admission of negligence by one defendant.

The court held that the discovery excerpt was misleading, potentially inadmissible, and taken out of context, particularly given language barriers during the examination for discovery.

Considering the cumulative prejudicial impact of the opening remarks, the court concluded that corrective instructions would not sufficiently remedy the prejudice to the jury.

A mistrial was therefore declared.

The plaintiffs in a motor vehicle personal injury action involving a child with an alleged brain injury sought leave under s. 12 of the Evidence Act to call more than three expert witnesses at trial.

The court considered factors governing leave to call additional experts, including necessity, duplication of evidence, fairness between parties, and proportionality.

While acknowledging the complexity of the medical issues and future care claims, the court emphasized the trial judge’s gatekeeping role and the need to avoid unnecessary or repetitive expert testimony.

Leave was granted for several experts with distinct specialties but denied for others whose proposed evidence lacked a compliant Rule 53 report or would duplicate testimony from other experts.

The court limited the number of occupational therapists who could testify and refused permission for certain proposed witnesses whose opinions were unnecessary or procedurally deficient.

The appellant insurer sought a stay of an arbitrator's order requiring it to pay tuition expenses, rehabilitation support worker expenses, and a special award to the respondent, who sustained a catastrophic brain injury in a motor vehicle accident.

Applying the Armstrong criteria, the Director's Delegate found that while the appeal was brought in good faith, the appellant failed to demonstrate that it would suffer hardship or prejudice if the stay was not granted.

The Delegate noted the exceptional nature of a stay under the Insurance Act and the legislative intent of a special award, concluding that the prejudice to the respondent in ordering a stay outweighed any prejudice to the appellant.

The motion for a stay was denied.