Ryan Steiner

The moving parties sought leave to appeal an order dated December 20, 2021.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to one responding party on a partial indemnity basis in the amount of $5,000.

No costs were awarded to the other responding parties as no factum was filed.

The plaintiffs were injured in a motorcycle accident while travelling through a road construction zone.

A flagger employed by the defendant paving contractor directed the plaintiff to cross an elevated lip of freshly laid asphalt.

The asphalt was unstable and had not sufficiently cooled, causing the motorcycle's rear tire to lose traction and the plaintiff to be thrown from the vehicle.

The court found the County liable under the Municipal Act, 2001 for failing to keep the road in a reasonable state of repair, and the contractor liable under the Occupiers' Liability Act for failing to ensure the premises were reasonably safe.

No contributory negligence was found against the plaintiff.

The defendants were held jointly and severally liable for the agreed damages of $325,000.

The applicant sought reconsideration of a Tribunal decision that capped the cost of home accessibility and alternative housing assessments at $2,000 under s. 25(5)(a) of the Statutory Accident Benefits Schedule.

The applicant argued the cap should only apply to medical assessments of a claimant's health status, not housing evaluations.

The adjudicator denied the request, finding no error of law or fact in the original decision's application of the modern approach to statutory interpretation.

The plain meaning of 'any one assessment or examination' includes the housing assessments, which inherently involved an appraisal of the applicant's health status.

The applicant, who was catastrophically impaired following a motor vehicle accident, sought funding for home accessibility and alternative housing assessments.

The insurer partially approved the first assessment up to the $2,000 limit and denied the second as a duplication.

The Licence Appeal Tribunal held that both assessments are subject to the $2,000 cap under section 25(5)(a) of the 2010 Statutory Accident Benefits Schedule, as they constitute clinical evaluations or appraisals of the applicant's health status.

The defendant, Gail MacDonald (Trustee of John's Estate), brought a motion for a determination of a question of law under Rule 21.01(1)(a) of the Rules of Civil Procedure.

The plaintiff, Giovanni Zambri, claimed negligence and liability under the Occupiers' Liability Act following an explosion at a house.

The core issue was whether John's Estate owed a duty of care or was an occupier, given that a prior decision (Spies J.'s Decision) retroactively established Paul Zigomanis (John's son) as the legal and beneficial owner of the house at the time of the explosion.

The court found that John's Estate, not being the owner or trustee at the time of the explosion, did not owe a duty of care, nor was it an occupier under the Act.

Consequently, the plaintiff's claim against John's Estate was dismissed.

The appellant appealed an arbitrator's decision denying him post-104 week income replacement benefits following a motor vehicle accident.

The Director's Delegate allowed the appeal, finding that the arbitrator failed to provide adequate reasons for his decision and mischaracterized the test for post-104 week benefits.

The arbitrator did not properly analyze the vocational evidence or explain how the appellant was reasonably suited for the suggested alternative employments.

The decision was rescinded and the matter returned to arbitration before a different arbitrator.

The respondent was injured in a motor vehicle accident and submitted a claim for long-term disability benefits well beyond the policy's time limits.

The appellant insurer denied the claim and moved for summary judgment.

The motion judge granted the respondent relief from forfeiture under s. 98 of the Courts of Justice Act, finding minimal prejudice to the insurer.

The Court of Appeal dismissed the insurer's appeal, holding that the motion judge reasonably applied the three-part test for relief from forfeiture given the abundance of medical information available and the insurer's failure to request independent assessments.

The insurer moved for summary judgment dismissing a long-term disability claim on the basis that notice and proof of claim were delivered outside the contractual deadlines in a group policy.

The insured asserted relief from forfeiture, relying on confusion about coverage, misleading information from the employer, and the absence of actual prejudice given the extensive medical record.

The court held that timely notice was a matter of imperfect compliance for which equitable relief could be available, and applied the three-part s. 98 Courts of Justice Act framework.

It found the insured's conduct reasonable, the breach relatively modest, and the disparity between the forfeited benefits and the damage caused by the breach significant.

Summary judgment was dismissed and a binding determination granting relief from forfeiture was made.

In a personal injury action arising from a motor vehicle accident, the plaintiffs sought leave to amend their statement of claim to significantly increase claims for future care, housekeeping, and income loss.

The defendant did not oppose the amendment but sought orders compelling a further examination for discovery and requiring the plaintiff to attend a defence in-home occupational therapy assessment.

The court held the defendant had not met the requirements under Rule 31.09 to justify a further discovery because there was no evidence the plaintiff’s prior answers were incomplete or incorrect.

However, the court exercised its discretion to order a non‑medical occupational therapy assessment, finding that the plaintiff had placed functional limitations and significant future care costs in issue and fairness required the defendant be able to obtain comparable evidence.

The motion for further discovery was denied, but the defence occupational therapy assessment was ordered and costs were awarded partially to the defendant.

The appellant was injured in a motor vehicle accident and applied for statutory accident benefits.

The insurer terminated income replacement benefits and the matter proceeded to arbitration.

The insurer brought a motion for the production of defence medical examination (DME) reports from the appellant's related tort action, and for an order requiring the appellant to attend a neuropsychological insurer's medical examination (IME).

The arbitrator ordered the production of the DME reports and found the IME reasonable.

On appeal, the Director's Delegate upheld the arbitrator's decisions, finding no error in law.

The Delegate held that fairness dictated the production of the DME reports because the appellant's own experts had reviewed and relied upon them.

The Delegate also found the neuropsychological IME reasonable, particularly since the equivalent DME was incomplete due to the appellant's physical illness.

The insurer requested a preliminary issues hearing to determine if the applicant was precluded from arbitrating her claims for treatment expenses and a higher income replacement benefit (IRB) due to the expiry of the two-year limitation period under s. 281.1(1) of the Insurance Act.

The applicant withdrew her claim for treatment expenses.

For the IRB claim, the arbitrator found that the insurer's provision of an accounting report and payment of a lump sum did not constitute a clear and unequivocal refusal of a higher benefit level.

Therefore, the limitation period was not triggered, and the applicant was permitted to proceed to arbitration on the quantum of her IRB.

The insurer brought a motion to have issues regarding the applicant's compliance with sections 34, 55, and 56 of the Statutory Accident Benefits Schedule heard as preliminary issues.

The arbitrator found that hearing these issues preliminarily would not serve judicial economy, as they would require extensive evidence that would likely be duplicated at a substantive hearing.

The motion was dismissed, and the issues were ordered to be determined at the main arbitration hearing.

The insurer appealed a jury verdict awarding disability benefits to the plaintiff, arguing that the plaintiff's counsel made improper comments during the closing address and that the verdict was perverse.

The plaintiff cross-appealed the trial judge's decisions on punitive damages, prejudgment interest, the form of judgment, and costs.

The Court of Appeal dismissed both the appeal and the cross-appeal, finding that the trial judge's instructions to the jury were adequate, the jury's verdict was supported by evidence, and there was no error in the trial judge's exercise of discretion regarding the cross-appeal issues.