Ryan Mitchell Naimark

The Receiver of a deceased personal injury lawyer's professional corporation brought a motion seeking to impose a 'Sliding Fee Structure' on new counsel who took over the deceased lawyer's client files.

The Receiver argued this was necessary to efficiently realize on the estate's interest in the files.

The court dismissed the request to impose the fee structure, finding it would inappropriately override the clients' statutory rights under the Solicitors Act to receive and assess a bill.

However, the court ordered new counsel to provide the Receiver with 'Determinable Information' about the files to assist the Receiver in rendering accounts, subject to a privilege protocol.

The applicants, three brothers involved in separate motor vehicle accidents, brought a motion seeking to disqualify the respondent insurer's counsel and adjuster, alleging breaches of privacy and a conflict of interest due to the sharing of information between their related accident benefits claims.

The Licence Appeal Tribunal held that while it has jurisdiction to disqualify counsel for a conflict of interest, it lacks the authority to disqualify an adjuster.

On the merits, the Tribunal found that the applicants had expressly consented to the sharing and pooling of their information for the purpose of investigating and verifying their claims when they signed the OCF-1 forms.

The Tribunal concluded there was no breach of privacy and no disqualifying conflict of interest, and dismissed the motion.

The plaintiffs brought an ex parte motion to approve an infant settlement and a contingency fee agreement following a fatal motor vehicle accident.

The court approved the settlement amount for the minor plaintiff but reduced the requested legal fees, finding the proposed fees disproportionate to the minor's share of the global settlement and the complexity of the case.

The court also ordered the settlement funds to be held in a trust account until the minor reaches age 25, rather than being paid into court and released at age 18.

Following a jury verdict awarding general damages to the plaintiff in a motor vehicle collision action, the court heard a threshold motion to determine if the plaintiff's claim surpassed the verbal threshold under the Insurance Act.

The court found that the plaintiff failed to prove a permanent, serious impairment of an important physical, mental, or psychological function as a result of the accident.

Credibility issues regarding the plaintiff's post-accident work activities contributed to this finding.

Consequently, the plaintiff's claim for general damages was dismissed.

The defendants in a motor vehicle accident claim sought an adjournment of the trial to bring a motion to consolidate the action with the plaintiff's separate defamation lawsuit against a newspaper.

The defendants argued the plaintiff was claiming psychological damages in both actions.

The court dismissed the request for an adjournment, finding the two pieces of litigation to be separate and distinct, and noting the defendants could cross-examine the plaintiff and experts on the overlapping issues without consolidating the trials.

The plaintiff brought a motion to amend her Statement of Claim to substitute Saint Elizabeth Health Care for the originally named defendant, Toronto Community Care Access Centre, after the expiry of the limitation period.

The plaintiff relied on the doctrine of misnomer, arguing that the proposed defendant was always the intended target and had received notice letters within the limitation period.

The court granted the motion, finding that the proposed defendant would have known it was the intended target upon reading the claim, and that there was no actual prejudice to justify refusing the amendment.

The appellant was injured in a motor vehicle accident and received income replacement benefits (IRBs) from the respondent insurer.

The insurer stopped the IRBs when the appellant returned to work, providing a notice that did not include medical reasons.

When the appellant later had to stop working and sought to resume IRBs, the insurer denied the claim, and the Licence Appeal Tribunal found the appeal time-barred.

On appeal, the Divisional Court held that section 37(4) of the Statutory Accident Benefits Schedule requires insurers to provide medical reasons for discontinuing IRBs.

Because the insurer's notice lacked medical reasons, it was not a valid refusal and did not trigger the limitation period.

The appeal was allowed and the matter remitted to the Tribunal.

The defendants in a defamation action sought leave to amend their statement of defence to plead limitation defences under sections 5 and 6 of the Libel and Slander Act.

The plaintiff opposed the motion, arguing that the amendment would cause actual prejudice due to the passage of time, changes to computer systems, and the unavailability of website snapshots from the date of publication.

The court granted the motion, finding that any evidentiary difficulties would prejudice the defendants rather than the plaintiff, and that the proposed defences were tenable at law.

The amendment was granted on the condition that the defendants pay the plaintiff's costs thrown away.

The appellant, Patricia Ann Smith, appealed the dismissal of her medical malpractice action against Dr. Brenda Kane.

The trial judge found no breach of the standard of care by Dr. Kane in her treatment of the appellant's foot complaints.

The appeal raised three main issues: misapprehension of expert evidence, failure to apply the "ordinary knowledge and common sense" exception to expert evidence, and error in failing to find a breach of the duty to diagnose.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of expert evidence, rejecting the application of the "common sense" exception as it was not raised at trial and the issues were complex, and clarifying that there was no freestanding duty to diagnose in this context given the specific concessions and causation findings.

A case management conference was held for a personal injury action arising from a 2015 motor vehicle accident.

The plaintiff's previous lawyer had passed away, and the plaintiff had declared bankruptcy in 2019.

The parties required assistance scheduling the remaining steps in the litigation.

The court established a consent timetable for updated records, further discovery, independent medical examinations, mediation, and setting the action down for trial, and directed the Registrar not to administratively dismiss the action before July 31, 2022.

The applicant sought reconsideration of a Licence Appeal Tribunal decision that dismissed her claims for income replacement and medical benefits, finding her injuries fell within the Minor Injury Guideline.

The Vice-Chair granted the reconsideration, finding that the original adjudicator misapprehended key evidence from the applicant's family physician and occupational therapist, and provided inadequate reasons that failed to meet the standards of justification, transparency, and intelligibility set out in Vavilov.

The matter was referred back to the original adjudicator for a redetermination on the existing record.

This endorsement addresses the determination of reasonable legal fees for counsel representing a person under disability in an accident benefits claim.

The court had previously approved a global settlement of $1.3 million for the catastrophically injured applicant, Robert Jones, after initially declining a lower proposed settlement due to concerns about its adequacy and the absence of a proper management plan.

The primary issue in this endorsement was the reasonableness of the applicant's counsel's proposed contingency fee of 23% (or 26.57% by the court's calculation) of the settlement.

Applying the principles from Henricks-Hunter, the court found the contingency agreement was not fair when made and the proposed fees were not reasonable, considering the minimal risk assumed by counsel due to the undeniable catastrophic injuries, and the fact that the settlement achieved was at the low end of entitlement.

The applicant requested a reconsideration of a preliminary issue decision which found his application for income replacement benefits was statute-barred.

The applicant argued the adjudicator erred in finding the insurer's denial notice was valid because it did not provide a medical reason for termination alongside the fact that he had returned to work.

The Tribunal dismissed the reconsideration request, holding that a return to pre-accident employment is a valid reason for termination under section 37 of the Schedule that does not require an accompanying medical reason, and the denial notice was clear and unequivocal.

This endorsement addresses the entitlement to costs following a medical malpractice action where the plaintiff's claim was dismissed.

The parties had agreed on a quantum of $300,000 for costs.

The court found that the defendant, as the successful party, was ordinarily entitled to costs.

The plaintiff's arguments for denying costs, including the defendant's failure to make a settlement offer, alleged divided success on causation and contributory negligence, and the plaintiff's impecuniosity and tragic circumstances, were rejected.

The court emphasized that the defendant's explicit undertaking not to demand costs alleviated concerns regarding hardship, allowing the ordinary rule that costs follow the event to apply.

The court reserved the right to revisit the disposition if the defendant were to seek enforcement of the costs order.

The Plaintiffs brought a motion for court approval of a settlement for a minor's personal injury claim and a derivative Family Law Act claim.

The court initially declined approval due to concerns regarding the allocation of settlement funds between the minor and the litigation guardian, and the reasonableness of legal fees.

Following the submission of supplementary affidavits and a re-allocation of the settlement, the court approved the settlement, finding it to be in the minor plaintiff's best interest.

The order included specific directions for the payment of funds into court and the finalization of the draft order.

The application for court approval of a $1.1 million accident benefits settlement for a catastrophically injured person under disability was denied.

The court raised serious concerns regarding the adequacy of the proposed settlement to meet the applicant's long-term needs, the absence of a comprehensive care plan, insufficient provisions for accessible accommodation and adequate personal care, and the quantum of legal fees requested without proper documentation.

The court mandated a conference with all parties, including the Public Guardian and Trustee, to address these deficiencies and develop a suitable care plan before any settlement approval.

The applicant insurer sought judicial review of a decision by the Director's Delegate, which allowed the insured's appeal from an arbitrator's denial of statutory accident benefits.

The Director's Delegate found that the arbitrator erred in law by failing to provide adequate reasons for denying income replacement and medical benefits.

Applying the Vavilov framework, the Divisional Court held that the standard of review was reasonableness.

The Court concluded that the Director's Delegate reasonably found the arbitrator's reasons inadequate, as they failed to address the principal evidence or explain the reasoning process.

The application for judicial review was dismissed.

This appeal concerned the ownership of a cottage and the appellant daughter's liability under two mortgages.

The parents purchased a cottage in 2001, registering title in the daughter's name, with an original mortgage in their favour.

After the father's death, the mother registered a subsequent mortgage.

The mother sought a declaration of true ownership, claiming a resulting trust.

The trial judge found the cottage was a gift to the daughter but also ruled the daughter was liable under the original mortgage, though not the subsequent one.

The Court of Appeal allowed the daughter's appeal, finding the trial judge erred by making a substantive determination on mortgage liability, an issue not squarely pleaded or fully addressed by the parties at trial, thereby denying the daughter a fair opportunity to present her case on that specific issue.

The plaintiff, a diabetic patient, brought a medical malpractice action against her family physician after requiring a below-knee amputation due to an undiagnosed neuropathic fracture (Charcot foot).

The plaintiff alleged the physician breached the standard of care by failing to order timely imaging or refer her to an orthopedic specialist.

The court found that the physician's treatment did not fall below the standard of care, noting that the condition was rare and not detected by other specialists who examined the plaintiff during the same period.

Although the court concluded that timely imaging would likely have saved the leg, the action was dismissed because the standard of care was not breached.

The applicant was injured in a motor vehicle accident and received income replacement benefits (IRBs) until he returned to work, at which point the insurer terminated the benefits.

More than two years later, the applicant sought reinstatement of the IRBs and applied to the Tribunal.

The insurer raised a preliminary issue that the application was statute-barred.

The Tribunal found that the insurer's initial denial was clear, unequivocal, and provided valid reasons, thereby triggering the two-year limitation period.

The Tribunal declined to extend the limitation period under section 7 of the LAT Act, finding the 10-month delay excessive and without compelling excuse.

The application for IRBs was dismissed as statute-barred.