Steven M. Polak

The plaintiff, who was injured in a motor vehicle accident while riding her bicycle, brought a motion to strike her own jury notice due to anticipated delays caused by the COVID-19 pandemic.

The plaintiff argued that the delay would cause financial hardship and prejudice under the Insurance Act.

The defendants opposed the motion, arguing that the delay was uncertain and that they preferred a jury trial.

The court found that the anticipated delay would cause significant prejudice to the plaintiff, which outweighed the defendants' preference for a jury.

The court conditionally struck the jury notice, ordering that the matter proceed by judge alone if civil jury trials are not running when the case is called.

The plaintiff in a motor vehicle accident personal injury action moved to strike the defendants' jury notice due to the suspension of civil jury trials during the COVID-19 pandemic.

The defendants cross-moved to adjourn the trial to conduct defence medical examinations and obtain expert reports.

The court granted the plaintiff's motion and struck the jury notice, finding that the plaintiff would suffer non-compensable prejudice from trial delay due to statutory deductibles and income loss limits under the Insurance Act.

The court dismissed the defendants' cross-motion, holding that their lack of trial readiness was due to their own failure to diligently seek medical examinations and expert reports.

The respondent insurer brought a motion seeking an order to compel the applicant to attend an Examination Under Oath (EUO), an adverse inference for non-attendance, and a suspension of benefits.

The applicant argued the EUO request was improper and abusive as it was made after the respondent agreed to a written hearing on a preliminary issue.

The Tribunal held that it lacks the statutory authority to order an applicant to attend an EUO.

However, the Tribunal found that the insurer has a broad right to request one EUO per claim under s. 33(2) of the Schedule, subject only to a low threshold of relevance.

Because the applicant failed to attend the scheduled EUO without a reasonable explanation, the Tribunal ordered that she is not entitled to any payment of benefits from the date of the scheduled EUO until she complies.

The Plaintiff, a party under disability, sought court approval for a global settlement of her tort claims against the defendants and statutory accident benefits claims against her insurer.

The court reviewed detailed evidence, including affidavits from the plaintiff's lawyer and the Public Guardian and Trustee, and found the proposed settlement to be in the plaintiff's best interest, approving the monetary elements and the structured annuity payments.

The applicant sought reconsideration of a Tribunal decision that partially granted her motion regarding hearing procedure.

She challenged the admission of addendum reports from the insurer's assessors, the refusal to order production of adjuster log notes and draft reports, and the denial of costs.

The Executive Chair dismissed the request for reconsideration, finding no error in the Tribunal's balancing of the insurer's right to respond with the applicant's right to a fair hearing, and agreeing that the requested documents were not relevant to the issue of non-earner benefits.

The applicant brought a motion seeking corrections to a case conference order, restriction of the respondent's addendum medical reports, permission to cross-examine the respondent's experts, an adjournment of the hearing, and costs.

The adjudicator allowed the addendum reports but granted the applicant the right to cross-examine the authors.

The adjudicator also granted the adjournment on consent to allow for a pending catastrophic impairment examination, permitted re-examination of the applicant, denied the production of adjuster notes, and dismissed the claim for costs.

The applicant, an eight-year-old with severe pre-existing disabilities, was struck by a vehicle and sustained a traumatic brain injury.

He applied for a determination of catastrophic impairment under s. 3(2)(d)(ii) of the Statutory Accident Benefits Schedule, arguing that the accident significantly increased his dependency and need for daily support.

The respondent argued that the accident did not exacerbate his pre-existing impairments.

The Tribunal found the applicant's evidence, including his mother's testimony and the Omega Medical Associates assessment, more compelling.

The Tribunal concluded that the applicant's condition worsened significantly after the accident, increasing his dependencies, and deemed him catastrophically impaired.

The applicant sought an early arbitration hearing date for her claim for income replacement benefits following a motor vehicle accident.

The insurer requested that the hearing be delayed until 2009, pending the outcome of a motion before the Workplace Safety and Insurance Appeals Tribunal (WSIAT) regarding the applicant's entitlement to claim benefits under the Schedule.

The arbitrator found that the balance of prejudice favoured the applicant, noting the legislative intent for timely payments and dispute resolution.

The arbitrator scheduled the hearing for April 2008, rejecting the insurer's request for a delay.

The appellant's action was dismissed after she missed her trial date.

She appealed, arguing that she was in the hospital suffering from a severe mental disorder at the time.

The Court of Appeal allowed the appeal, finding the motion judge erred by not considering her uncontradicted evidence that she had called the court from the hospital.

Fresh evidence confirming her hospitalization was admitted, the dismissal was set aside, and costs of the appeal were awarded to the appellant.