Sherilyn J. Pickering

The applicant sought statutory accident benefits for psychological treatment following a motor vehicle accident.

The core dispute was whether the applicant's psychotherapist should be paid at an enhanced hourly rate of $149.61, akin to a psychologist, rather than the $100.00 rate approved by the respondent.

The adjudicator found that the psychotherapist was not listed in the Professional Services Guideline and the applicant failed to demonstrate entitlement to the enhanced rate, noting the absence of evidence that specialized cognitive behavioural therapy was provided.

Claims for ancillary documentation fees and workbooks were also denied for lack of evidence.

The application was dismissed.

The applicant, a firefighter who responded to the Toronto van attack, sought reconsideration of a decision finding that his psychological impairments were not caused by an 'accident' under the Statutory Accident Benefits Schedule.

The applicant argued that the adjudicator erred in applying the purpose and causation tests to both the Ryder van used in the attack and the fire truck he drove to the scene.

The Vice-Chair dismissed the request for reconsideration, finding no significant legal or evidentiary errors in the adjudicator's conclusion that the applicant's impairments were directly caused by exposure to the horrific scene rather than the use or operation of a vehicle.

The defendants brought a motion to transfer a personal injury action from Barrie to Toronto.

The plaintiff opposed the motion, arguing it was brought late and for tactical reasons.

The court dismissed the motion, noting that the defendants failed to raise the issue until after the pretrial conference and that transferring the action to Toronto would result in significant delay in securing a trial date.

Following a successful summary judgment motion dismissing the plaintiffs' action, the defendant TD sought partial indemnity costs of $231,077.50.

The plaintiffs argued for a reduction based on the principal plaintiff's impecuniosity, the novelty of the case, and excessive time claimed.

The court found that while the plaintiff's financial circumstances warranted some moderation, the novelty of the case did not justify a reduction as basic negligence principles applied.

The court also found some of TD's claimed time excessive, but noted the plaintiffs' conduct caused significant delay.

The court awarded TD costs of $130,000 inclusive of disbursements and HST.

At the outset of a personal injury trial arising from a motor vehicle accident, the defendant moved to exclude expert evidence based on a brain SPECT scan used to diagnose a traumatic brain injury (TBI).

The court held that using a SPECT scan to diagnose TBI and distinguish it from anxiety or depression constitutes novel science.

Applying the reliable foundation test from R. v. J.-L.J., the court found the methodology had not been tested, lacked peer review, had no known error rate, and was not generally accepted by the relevant scientific community.

The evidence was ruled inadmissible.

The plaintiff brought a motion to strike the defendant's jury notice in a personal injury action arising from a motor vehicle collision, citing anticipated delays in scheduling civil jury trials due to the COVID-19 pandemic.

The court granted the plaintiff leave to bring the motion under Rule 48.04(1) but ultimately dismissed the motion to strike the jury notice.

The court found that the plaintiff had not moved the action forward expeditiously prior to the pandemic and failed to demonstrate that any potential delay outweighed the defendant's substantive right to a jury trial, noting that civil jury trials were likely to resume by May 2022.

The plaintiff was severely assaulted by another customer in the vestibule of a TD Bank ATM late at night.

The plaintiff sued TD Bank for negligence and breach of the Occupier's Liability Act, alleging inadequate security measures.

TD brought a motion for summary judgment to dismiss the action.

After conducting a voir dire to determine the admissibility of five expert reports, the court found that the assault was a random, unforeseeable event and that TD's security measures were reasonable for a low-risk branch.

The court granted summary judgment and dismissed the action against TD.

The applicant was injured in a motor vehicle accident and sought non-earner benefits.

The respondent denied the claim, leading to a preliminary issue hearing to determine whether the insurance policy was entered into or renewed before June 1, 2016, which would dictate the applicable version of the Statutory Accident Benefits Schedule.

The Tribunal found that the insurance contract was a new contract entered into on April 28, 2016, before the June 1, 2016 amendments.

Consequently, the pre-June 1, 2016 Schedule applied to the applicant's claim for non-earner benefits.

The plaintiff brought a motion to strike the defendant's jury notice due to significant trial delays caused by the COVID-19 pandemic.

The plaintiff argued that waiting for a jury trial would cause substantial financial prejudice, as his future income loss would convert to past income loss subject to statutory deductions.

The court found that the practical reality in the Central East Region meant a jury trial would be delayed until at least late 2022, whereas a judge-alone trial could proceed much sooner.

The motion was granted and the jury notice was struck to ensure the timely delivery of justice.

The applicant sought court approval for an accident benefit settlement.

The court previously identified deficiencies and concerns regarding the allocation of settlement funds, legal fees, and a solicitor's loan.

Following a capacity assessment report indicating the applicant was not mentally incapable, the court noted that judicial approval was not required.

The court requested an explanation from the applicant's counsel regarding a prior representation to the Licence Appeal Tribunal that a court order had appointed a litigation guardian, and a copy of any such order, before considering dismissing the application without costs.

This motion concerned an application for judicial approval of a settlement for statutory accident benefits (SABS) for a catastrophically injured claimant who lacked capacity to instruct counsel.

The court expressed significant concerns regarding the adequacy of the proposed settlement amount, the fairness and applicability of the contingency fee agreement to a SABS claim, the claimant's capacity at the time of signing the fee agreement and various loans, and the absence of a proper management plan for the lump sum payment.

The court refused to approve the settlement as proposed and referred the matter to the Office of the Public Guardian and Trustee for further input, remaining seized of the matter.

The court denied approval of a settlement for a party under disability due to significant deficiencies in the motion material.

These deficiencies included insufficient medical evidence to assess the injured party's present and future needs, lack of full disclosure regarding a companion tort action and any settlement offers therein, and inadequate details for the proposed allocation of settlement funds.

Furthermore, the court found insufficient information regarding a loan from counsel to the applicant and the fairness and reasonableness of the contingency fee agreement, which appeared to conflate tort and accident benefits claims.

The court also dismissed the request to seal the court record, emphasizing the high bar for such an extraordinary order.

The matter was to be re-submitted after the identified deficiencies were addressed.

The plaintiff's counsel sought an adjournment of a long motion brought by the defendant to dismiss a class action.

The adjournment was requested primarily due to the recent retention of outside counsel who was unavailable, among other reasons.

The court reluctantly granted the adjournment, criticizing plaintiff's counsel's conduct for causing needless delay and wasting judicial resources, but found it necessary to prevent irreparable prejudice to the plaintiff.

The court emphasized that retaining new counsel on the eve of a hearing will not constitute exceptional circumstances for future adjournments.

Costs of $10,000 were awarded against the plaintiff's counsel.

The defendant sought to proceed with a summary judgment motion, but an issue remained regarding the cross-examination of experts.

The plaintiff argued the matter was too complicated for summary judgment and should proceed to trial.

The court rejected this argument, holding that the defendant was entitled to have its motion heard.

The court directed that the experts be cross-examined in open court on all issues relating to their reports, not just their qualifications, to allow the court to exercise its gatekeeper function regarding the admissibility of the evidence.

This decision addresses the costs of a prior motion concerning the plaintiff's requests for additional documents and answers to undertakings and refusals.

The plaintiff sought partial indemnity costs, arguing for divided success as fourteen questions were ordered answered.

The defendant sought substantial indemnity costs, citing the plaintiff's unreasonable conduct in attempting to re-litigate proportionality issues, asking questions beyond the scope of follow-up undertakings, and providing an incomplete motion record.

The court found the defendant largely successful on the substantive issues, particularly regarding the plaintiff's attempts to re-litigate and expand the scope of discovery.

While the plaintiff achieved some success in obtaining answers to specific questions, the overall conduct and the defendant's success on major points warranted a costs award against the plaintiff.

The court ordered the plaintiff to pay the defendant $2,500.00 in costs.

This endorsement addresses the plaintiff's late service of three expert reports, despite previous directions for one, in advance of a summary judgment motion.

The court expressed concerns about delay and good faith, cancelling a conference call and directing an in-person appearance to determine the admissibility of the reports, the plaintiff's reliance on multiple experts, and potential schedule adjustments.

The insurer applied to vary an appeal order that required the insured to repay interim benefits but failed to specify the quantum.

The insured argued the Director's Delegate lacked jurisdiction as the omission was not a mere typographical error.

The Director's Delegate held that issuing an unenforceable order without a quantum was an 'error in the order' under Rule 61.1(c) of the Dispute Resolution Practice Code.

The order was varied to require the insured to repay $41,919.18 in interim benefits.

However, the insurer's request to include benefits paid after a subsequent arbitration order was dismissed, as there was no error in the original appeal order regarding those payments.

This endorsement addresses a case management motion concerning outstanding follow-up questions from discovery and the timing of the plaintiff's expert report.

The plaintiff sought further answers from the defendant, TD Canada Trust, regarding security protocols and risk assessments following an alleged assault at an ATM vestibule.

The court applied principles of proportionality and finality, rejecting many of the plaintiff's requests for information deemed beyond the scope of appropriate discovery or based on information that should have been obtained earlier.

The court also found the plaintiff responsible for significant delays in the litigation and ordered the expert report to be produced promptly, with strict timelines, while allowing for a supplemental report if new information warranted it.

The plaintiffs brought a motion to compel answers to follow-up questions posed in a written examination for discovery, following an earlier oral examination and a previous court order regarding refusals.

The underlying action involves an alleged assault in the defendant bank's ATM vestibule.

The court held that the plaintiffs were not entitled to conduct a full written discovery after an oral discovery without leave, but were permitted to ask reasonable follow-up questions arising from undertakings and refusals.

The court applied the principle of proportionality, limiting the scope of questions primarily to the specific branch where the incident occurred, and provided a detailed schedule ruling on each of the 40 disputed questions.

The Plaintiff sought leave to bring a Rule 30.10 motion for third-party records production from other banks, which the Defendant opposed.

The court found the Plaintiff's delay in bringing the motion unreasonable due to counsel's dilatory conduct in retaining and instructing an expert.

Despite the unreasonable delay and potential for further adjournment of the summary judgment motion, the court reluctantly granted leave to the Plaintiff to bring the motion on terms, including payment of costs to the Defendant, to avoid prejudicing the Plaintiff due to counsel's failures.