Stephen M. Birman

The plaintiff brought a motion to strike the jury notice in her long-term disability benefits action, seeking to proceed virtually due to COVID-19 related jury trial suspensions.

The court considered factors including available resources, local pandemic impact, prejudice to parties, age of the case, and history of adjournments.

The motion was dismissed, as the plaintiff failed to discharge her onus to show the trial should proceed without a jury or that parties would be better served by its discharge.

The trial was adjourned, and the defendant was awarded partial indemnity costs.

The applicant was catastrophically injured in a motor vehicle accident.

Ten days prior to the accident, he had signed an employment contract but had not yet started working.

He applied for income replacement benefits, arguing that having a valid employment contract meant he was 'employed at the time of the accident' under section 5(1) of the Statutory Accident Benefits Schedule.

The Tribunal found that the applicant was not employed, as he had not commenced work or received remuneration.

Applying principles of statutory interpretation, the Tribunal noted that previous versions of the Schedule explicitly included future employment contracts, but the current version does not.

The application for income replacement benefits was dismissed.

The plaintiffs brought a motion to strike several paragraphs from the defendant insurer's statement of defence.

The plaintiff pedestrian was struck by a motor vehicle and suffered catastrophic injuries.

The insurer, added as a defendant, pleaded that the collision was an intentional act in self-defence and included allegations about the plaintiff's past criminal record, gang affiliation, and drug involvement.

The court found these allegations to be irrelevant evidence that improperly cast a derogatory light on the plaintiff's character.

The court struck the offending paragraphs under Rule 25.11, concluding that their prejudicial effect outweighed any potential probative value.

The applicant sustained a catastrophic traumatic brain injury in a motorcycle accident and applied for statutory accident benefits.

The respondent denied several benefits, arguing the applicant was excluded for driving without a valid motorcycle licence and that his impairments were due to pre-existing conditions.

The Tribunal found the applicant's G1 licence was valid for the purpose of the Schedule's exclusion clause.

The Tribunal awarded non-earner benefits, attendant care benefits of $6,000 per month, and rehabilitation support worker services, finding the applicant suffered a complete inability to carry on a normal life and required 24-7 supervision.

A claim for $401,215 in home modifications was dismissed as excessive.

The Tribunal also granted a special award under O. Reg. 664, finding the respondent unreasonably withheld benefits by relying on flawed medical reports and ignoring its own adjuster's recommendations.

The applicant sought statutory accident benefits from the Motor Vehicle Accident Claims Fund (MVACF) and brought a motion to add claims for an award and costs to the issues in dispute, and to compel production of MVACF's file and related correspondence.

The adjudicator granted the request to add the award and costs issues, finding no prejudice to the respondent.

The adjudicator also held that the Licence Appeal Tribunal has jurisdiction to order production of MVACF's file, rejecting the argument that MVACF, as a Crown entity, is exempt from discovery in this context, because MVACF acts as an insurer for the purposes of statutory accident benefits.

The plaintiffs and defendants brought a joint motion for approval of a proposed settlement in a class action regarding alleged misrepresentations about access to a golf course and clubhouse in a residential subdivision.

Following discoveries, it was determined that the defendants were impecunious.

The settlement provided for a $150,000 payment and free lifetime clubhouse memberships for class members.

The court approved the settlement as fair and reasonable given the defendants' lack of assets, and approved class counsel's significantly discounted fees of $48,645.

The defendants moved under Rule 21.01(3)(a) to dismiss a libel action brought by a unionized teacher, arguing the claim fell within the exclusive arbitral jurisdiction created by the collective agreement and s. 48(1) of the Labour Relations Act, 1995.

Applying the Weber framework, the court held the essential character of the dispute was defamation arising from an email about an extracurricular, unpaid, voluntary school concert, not a dispute about discipline, workplace administration, or the interpretation or application of the collective agreement.

The court distinguished authorities where the impugned communications or conduct were tied to discipline, dismissal, workplace performance, or other employment-related action.

The jurisdiction motion was dismissed.

No costs were awarded to the self-represented responding party because there was no evidence that she had forgone income.

The plaintiffs brought an omnibus motion for certification, settlement approval, and class counsel fee approval in a class action against a vending machine distributor and a vendor of candies.

The action alleged misrepresentation and breach of the statutory duty of fair dealing under the Arthur Wishart Act.

Following the dismissal of the action against the candy vendor and the dissolution of the vending machine distributor, the parties agreed to a settlement distributing the remaining trust funds pro rata among class members.

The court certified the action for settlement purposes, approved the settlement as fair and reasonable, and approved class counsel's reduced fee request.

The defendants brought motions to strike the statement of claim brought by a parent and a minor child against a child protection agency, its employees, and a school vice-principal.

The parent alleged negligence relating to the apprehension of the child, the child’s placement in foster care, and school disciplinary decisions.

The court held that child protection agencies and their staff owe a duty of care to the child, not to the parent, relying primarily on the Supreme Court’s decision in Syl Apps Secure Treatment Centre v. B.D., and found that the parent’s pleading disclosed no reasonable cause of action.

The court also found statutory immunity under the Child and Family Services Act was not displaced due to the absence of pleaded particulars of bad faith.

The parent’s claim was struck without leave to amend, while the minor’s claim was stayed pending appointment of a litigation guardian represented by counsel.

The applicant was injured in a motor vehicle accident and received caregiver benefits from her insurer.

The insurer terminated the benefits after 104 weeks, arguing she no longer met the test of suffering a complete inability to carry on a normal life.

The arbitrator found that the applicant's physical injuries, combined with chronic pain and a diagnosed Somatoform Pain Disorder, continuously prevented her from engaging in substantially all of her pre-accident activities.

The arbitrator ordered the insurer to pay ongoing caregiver benefits but declined to order a special award, finding the insurer's denial was not unreasonable given the complex medical evidence.

In a proposed class proceeding arising from a vending machine distributorship program, the plaintiffs alleged misrepresentation and sought rescission and damages under the Arthur Wishart Act (Franchise Disclosure), 2000.

A supplier of nut products brought a motion for summary judgment arguing it was neither a partner nor a “franchisor’s associate” of the program’s operator.

The court held the documentary record showed the supplier merely licensed trademarks and supplied products and did not share profits, manage the program, or exercise control over the franchisor.

Applying the statutory definition and partnership principles, the court concluded there was no genuine issue requiring a trial.

The claim against the supplier was dismissed while the proposed class action continued against the franchisor.