Ryan Mitchell Naimark

The applicant sought to introduce fresh evidence on an application for judicial review of a decision by the Director's Delegate, which had upheld an Arbitrator's decision.

The Director's Delegate had previously refused to admit the applicant's affidavit because it failed the Palmer test, as the evidence was available during the arbitration.

The Divisional Court agreed, refusing to admit the affidavit for the purposes of the application.

The court allowed certain other documents to be referenced on consent of the parties, but excluded the accompanying affidavit.

The insurer brought a motion to strike out the insured's claim for a special award prior to the arbitration hearing.

The insurer argued that because all income replacement benefits had been paid and none were outstanding at the time the application for arbitration was filed, a special award could not be granted under section 282(10) of the Insurance Act.

The arbitrator dismissed the motion, finding that the legislation mandates a special award where payments are unreasonably delayed, and that a literal interpretation requiring benefits to be outstanding at the time of the award would lead to an absurdity contrary to the consumer protection mandate of the accident benefits scheme.

The arbitrator concluded it was not plain and obvious that the claim for a special award would fail.

The insurer sought its expenses of an appeal and variation/revocation proceeding after successfully defending an arbitration order that required the appellant, former counsel for the insured, to personally pay the insurer's arbitration expenses.

The appellant argued the expenses claimed were excessive and sought to offset them based on his success on a preliminary procedural issue.

The Director's Delegate rejected the offset, noting the preliminary issue was merely deferred and the appellant ultimately lost the appeal.

After adjusting the claimed preparation time and disbursements, the Director's Delegate fixed the insurer's expenses at $2,246.60 inclusive of GST.

The applicant, a former counsel for an insured person, appealed and applied for variation/revocation of an arbitrator's order that he personally pay the insurer's arbitration expenses.

The arbitrator had found that the representative commenced the arbitration without authority and caused expenses to be incurred without reasonable cause.

On appeal, the Director's Delegate refused to admit fresh evidence, finding it could have been adduced at the arbitration had the representative not relied on client confidentiality.

The Director's Delegate upheld the arbitrator's finding that the representative was personally liable for the expenses under s. 282(11.2)(c) of the Insurance Act, as the arbitration should not have been commenced.

The appeal and application for variation/revocation were dismissed.

The appellant was charged with theft of hydro and marijuana offences, but entered a diversion program under s. 717 of the Criminal Code, accepting responsibility for the acts.

The Attorney General subsequently brought a successful application under the Civil Remedies Act for forfeiture of cash and the net proceeds from the sale of the appellant's house.

On appeal, the appellant raised Charter arguments and challenged the finding that the cash was proceeds of unlawful activity.

The Court of Appeal dismissed the appeal, holding that the Charter arguments were subsumed by his acceptance of responsibility in the diversion program, and that there was overwhelming evidence supporting the forfeiture of the cash.

Following the dismissal of the insurer's appeal, the parties disputed the quantum of appeal expenses payable to the insured.

The insurer challenged the claimed hourly rate of $150 and the total hours docketed by the insured's counsel.

The Director's Delegate found the $150 hourly rate justified given counsel's experience and the relative complexity of the issues raised by the insurer on appeal.

Rejecting a strict line-by-line assessment or a fixed ratio of preparation to hearing time, the Delegate assessed a global figure of $5,000 for legal fees, disbursements, and GST.

The insurer appealed an arbitrator's decision finding that the claimant was involved in a motor vehicle accident, arguing that the accident was staged and that the arbitrator failed to provide sufficient reasons for rejecting its expert and circumstantial evidence.

The Director's Delegate dismissed the appeal, holding that the arbitrator's reasons were adequate, that she properly assessed the claimant's credibility, and that her factual findings were entitled to deference.

The arbitrator was not required to engage in a detailed analysis of every piece of evidence, and there was no error of law in her preference for the claimant's direct evidence over the insurer's expert theories.

The appellants appealed a summary judgment order finding that their debt to the respondents survived bankruptcy due to fraud and breach of fiduciary duty.

The Court of Appeal upheld the motion judge's finding that the appellant physician breached his fiduciary duty to the respondent patients by falsely assuring them their investment was safe.

The appeal was dismissed on the merits, but the costs awarded by the motion judge were reduced to exclude costs from related proceedings.

The applicant was completely successful in her arbitration for statutory accident benefits and sought an assessment of her arbitration expenses.

The insurer disputed the hourly rates for senior counsel and a law clerk, the number of preparation hours, the use of junior counsel, and certain disbursements.

The arbitrator allowed the maximum hourly rate of $150 for senior counsel due to the complexity of the case and the applicant's success.

The arbitrator also allowed the use of junior counsel and a senior law clerk, and approved most of the claimed disbursements, including accounting reports used to calculate interest.

The applicant's expenses were assessed at a total of $56,592.95.

The insurer sought its expenses of an arbitration proceeding against the applicant's former representative, Alon Rooz, personally.

The arbitrator found that the representative commenced the arbitration without the authority of the insured person, who had moved to Ukraine and had no knowledge of the claim.

The representative was ordered to personally pay the insurer's expenses of $4,621.17 pursuant to subsection 282(11.2) of the Insurance Act.

The applicant sought income replacement benefits, a special award, and interest following a motor vehicle accident.

She claimed to be completely disabled by chronic pain and psychological distress.

The insurer denied the claims, arguing the applicant was not credible and was malingering.

The arbitrator dismissed the applicant's claims, finding her evidence riddled with inconsistencies, including a failure to report pre-existing medical conditions and psychometric test results indicating a lack of effort or intentional poor performance.

The arbitrator preferred the evidence of the insurer's experts and concluded the applicant failed to prove she suffered a complete inability to engage in employment as a result of the accident.

The applicant was injured when she slipped and fell on a bus.

She applied for statutory accident benefits.

The insurer deducted amounts she received from a private disability policy from her pre 104-week income replacement benefits and denied her post 104-week benefits.

The arbitrator held that the private policy was a non-indemnity policy and its benefits were not deductible.

The arbitrator also found that the applicant suffered a complete inability to engage in suitable employment due to chronic pain and was entitled to post 104-week benefits.

A special award of $1,500 was granted due to the insurer's unreasonable delay in adjusting the claim.

The Applicant applied for statutory accident benefits following an alleged motor vehicle accident.

The Insurer denied the benefits, alleging that the accident was staged and that the Applicant's vehicle was struck while stationary.

The Insurer relied on the reports of an investigator and two accident reconstruction experts who concluded the collision did not occur as described.

The Arbitrator found the Applicant to be a credible witness and accepted her version of events.

The Arbitrator gave little weight to the Insurer's expert reports because the experts did not examine the vehicles or interview the drivers, and relied on inaccurate information.

The Arbitrator concluded that the Applicant was involved in an accident as defined in section 2 of the Schedule.

The insurer brought a motion to dismiss the applicant's claim for statutory accident benefits or to have it deemed withdrawn.

The applicant had returned to Ukraine in 2003 and did not attend the pre-hearing or the motion.

The arbitrator found no evidence that the application was frivolous, vexatious, or commenced in bad faith, but concluded that the applicant did not intend to pursue the claim.

The application was deemed withdrawn pursuant to Rule 70.3 of the Dispute Resolution Practice Code, and the insurer was awarded its expenses.

The appellant sued his insurer for a fire loss but was subsequently convicted of arson.

Despite having a legal opinion that his criminal appeal had merit, he agreed to settle the civil action by a consent dismissal without costs.

His criminal convictions were later quashed on appeal and the charges withdrawn.

He moved to set aside the civil settlement and consent order, arguing common mistake and fresh evidence.

The motion judge dismissed the motion.

The Court of Appeal upheld the dismissal, emphasizing the principle of finality in litigation and noting that the appellant knew his appeal had merit when he chose to settle.

The appellant appealed a trial decision dismissing his claim regarding a damaged sculpture.

The trial judge found that the purported assignment of the sculpture to the appellant was invalid under s. 53(1) of the Conveyancing and Law of Property Act, as the sculpture had been pledged to the respondent as collateral for an outstanding debt.

The Divisional Court upheld the trial judge's findings, including the valuation of the sculpture based on expert testimony and the conclusion that the respondent owed no duty of care to the appellant when the sculpture was damaged.

The appeal was dismissed with costs.

Following a decision dismissing the applicant's claim for statutory accident benefits and ordering repayment due to fraud, the insurer sought its expenses for the arbitration proceeding.

The arbitrator awarded the insurer its expenses, noting the applicant's claims were improper, unnecessary, and fraudulent, and that the applicant failed to attend the hearing.

The insurer was awarded $9,864.77 in expenses, calculated using the applicable Legal Aid hourly rate and a 4:1 ratio of preparation to hearing time.

The insurer sought its expenses arising from an appeal decision that affirmed a preliminary issue decision finding the insured's paralegal had entered into a binding settlement.

The insured agreed the insurer was entitled to expenses but disputed the quantum, specifically the $150 hourly rate claimed for counsel.

The Director's Delegate found that the maximum allowable hourly rate for the insurer's counsel was $83.10 based on his year of call.

While the appeal issue was no longer novel following a prior Director's decision, the Delegate did not find the appeal frivolous or vexatious.

Considering the nature and complexity of the appeal, the Delegate awarded the insurer $2,000 in appeal expenses.

The insurer sought expenses following its success in a preliminary issue hearing where it was determined that the insured was precluded from proceeding with her arbitration due to a full and final settlement.

The arbitrator considered the criteria under Rule 75.2 of the Dispute Resolution Practice Code.

While the insurer was entirely successful, the insured's position was not manifestly unfounded and raised a legitimate issue regarding the cooling-off period.

The arbitrator awarded the insurer $1,500 in expenses.

The applicant sought ongoing income replacement benefits (IRBs) and payment for a medical assessment following a motor vehicle accident.

The insurer sought repayment of IRBs, alleging the applicant had been working full-time while claiming complete disability.

The arbitrator found overwhelming evidence, including surveillance and employment records, that the applicant had been employed full-time installing GPS units while simultaneously telling medical assessors he was completely disabled.

The arbitrator concluded the applicant obtained benefits through deliberate and material fraud.

The insurer was relieved of its obligation to pay ongoing IRBs and was awarded repayment of all IRBs paid since December 9, 2002, with interest.

The applicant's claim for the cost of a medical report was dismissed because the report was rendered useless by his intentional misrepresentations.