Tara L. Lemke

Following the dismissal of the plaintiff's action against Ontario for historical sexual assault by a participant in the Witness Protection Program, Ontario sought costs of over $516,000 on a partial indemnity basis.

The plaintiff argued no costs should be awarded due to the nature of the claim and the Victims' Bill of Rights.

The court rejected the plaintiff's argument that victims of sexual assault should be presumptively shielded from costs when unsuccessful, but considered the plaintiff's good faith and the need for proportionality.

Costs were fixed at $275,000.

The plaintiff alleged she was sexually assaulted while in the Witness Protection Program and sought damages against Ontario on theories of negligence, breach of fiduciary duty, and breach of contract.

The court found on a balance of probabilities that the sexual assault occurred, but held that the protection team’s private duty of care was limited to protection from the identified outside threat and that no breach of the applicable standard of care was proven, particularly in the absence of expert evidence on the Witness Protection Program standard of care in 1987.

The court further held that legal causation and foreseeability were not established, and rejected the fiduciary and contract claims.

In an alternative assessment, the court would have awarded damages for psychological harm from the assault, but not for COPD, income loss, or housekeeping claims.

The applicant sought statutory accident benefits following a motor vehicle accident, claiming she sustained a catastrophic impairment due to mental and behavioural disorders.

The Tribunal found the applicant met the catastrophic impairment threshold under Criterion 8, demonstrating marked impairments in activities of daily living, social functioning, and adaptation.

The Tribunal preferred the evidence of the applicant's assessors, noting the respondent's assessors failed to adequately consider the applicant's reliance on her partner and conducted flawed situational assessments.

The Tribunal awarded the cost of an in-home assessment but denied the claim for attendant care benefits, finding the proposed hours were overestimated and included tasks the applicant could perform independently.

The applicant sought income replacement benefits (IRBs) beyond the 104-week post-accident mark, requiring him to prove a complete inability to engage in any reasonably suited employment.

The respondent insurer denied the benefits, relying on surveillance evidence and expert reports suggesting the applicant had some capacity for work.

The Tribunal found the applicant's testimony, corroborated by his spouse and medical evidence, established that his chronic pain and severe psychological impairments prevented him from sustaining employment.

The Tribunal placed significant weight on the applicant's experts and found the surveillance evidence did not contradict his reported limitations.

The applicant was awarded ongoing IRBs and interest on overdue payments.

The decision addresses two motions in a commercial real estate dispute: a motion to strike claims against individual condominium directors, and a motion for production of documents.

The court struck the claims against the directors but granted the plaintiff leave to amend, finding the pleadings did not sufficiently distinguish the directors’ conduct from that of the corporation.

The court also dismissed the plaintiff’s production motion, holding that privilege over communications with counsel and the property manager was not waived by the addition of the property manager as a third party.

The ruling clarifies the high threshold for personal liability of condominium directors and the scope of privilege in multi-party litigation.

The applicant requested a reconsideration of a Licence Appeal Tribunal decision regarding her entitlement to attendant care benefits.

She argued the Tribunal made errors of law by finding it lacked jurisdiction to determine the rate for attendant care, by applying the ratio method to calculate payments, and by breaching procedural fairness through inadequate reasons.

The adjudicator dismissed the request, finding no errors of law or breaches of procedural fairness, as the original decision correctly applied the statutory scheme and provided sufficient reasons for its findings.

Following a jury trial for damages arising from a motor vehicle collision, the plaintiff sought partial indemnity costs.

The court awarded the plaintiff $275,000 in fees, $100,000 in disbursements, and $30,000 for costs incurred in pursuing a SABS settlement that significantly benefited the defendants.

The court denied the plaintiff's claim for litigation loan interest due to insufficient evidence.

The defendants' request for costs under Rule 49.10(2) was dismissed because the plaintiff's judgment exceeded the defendants' offer.

In this personal injury trial, the plaintiffs sought to have the jury quantify damages for past attendant care and housekeeping.

The court denied this request, ruling that such claims were barred due to the male plaintiff's prior settlement of his Family Law Act claim for services provided to his wife, which would result in impermissible double recovery.

Additionally, the court found there was insufficient evidentiary foundation to put these specific questions to the jury, as the plaintiffs failed to provide adequate evidence regarding the hours of services rendered by third parties or the value of non-monetary compensation, and the proposed methodology of valuing damages based on need rather than services actually received was incorrect in law.

The applicant sought statutory accident benefits following a 2018 motor vehicle accident.

The Tribunal found the applicant was not entitled to the proposed chiropractic treatment as it was not supported by the medical records.

However, the Tribunal granted entitlement to a vision therapy assessment and vision therapy sessions, finding them reasonable and necessary to treat the applicant's post-trauma vision syndrome symptoms.

Claims for an award for unreasonable delay and the respondent's request for costs were both dismissed.

The applicant sought attendant care benefits, an award, and interest following a motor vehicle accident.

The Tribunal found the applicant entitled to $942.19 per month in attendant care benefits based on the occupational therapist's assessment of her needs for exercise supervision, bathing, and equipment maintenance.

The Tribunal dismissed the claims for incurred attendant care shortfalls, interest, and a section 10 award, finding the insurer's reliance on the ratio method and its own assessments was reasonable.

The applicant sought medical and rehabilitation benefits totaling $10,161.36 for goods and services, including an adjustable bed, massage chair, and moving costs, following a motor vehicle accident.

The adjudicator found that while the applicant had been removed from the Minor Injury Guideline (MIG) and suffered from chronic pain, the requested items were not reasonable and necessary.

The evidence showed the applicant already possessed similar items in good condition, and the requested items were not recommended by his chronic pain specialist.

The application was dismissed, along with claims for interest and an award.

The applicant sought a determination that she sustained a catastrophic impairment under Criteria 4 and 8 of the Statutory Accident Benefits Schedule following a motor vehicle accident, as well as entitlement to psychological services.

The Tribunal found that the applicant did not meet Criterion 4 because there were no positive findings of a traumatic brain injury on recognized diagnostic imaging.

The Tribunal also found that the applicant did not meet Criterion 8, as the evidence demonstrated she had been working part-time as a personal support worker, which was inconsistent with a Class 5 extreme impairment in work functioning.

The claim for psychological services was dismissed as not reasonable and necessary.

The respondent's request for costs was also dismissed.

The defendant brought a motion to set the prejudgment interest rate on non-pecuniary damages awarded to the plaintiffs by a jury at 1.3% instead of the prescribed 5%.

The plaintiffs cross-moved, seeking an 8.46% rate for both non-pecuniary and past pecuniary damages.

The court granted the defendant's motion, reducing the prejudgment interest on non-pecuniary damages to 1.3%, citing low prevailing prejudgment interest rates and the future loss component of the award.

The plaintiffs' cross-motion was dismissed, with the court maintaining the default 0.8% rate for past pecuniary damages, rejecting the plaintiffs' arguments for a higher rate based on their investment returns or the defendant's insurer's returns.

The applicant insurer brought an urgent motion to stay a Licence Appeal Tribunal (LAT) proceeding pending a judicial review of the LAT's refusal to grant an adjournment.

The applicant's newly retained counsel had scheduling conflicts with the set hearing dates.

Applying the RJR-MacDonald test, the court found there was a serious issue to be tried regarding procedural fairness and right to counsel of choice.

However, the court concluded the applicant failed to establish irreparable harm, as other counsel from the firm might be available or the presiding official could address fairness concerns at the hearing.

The balance of convenience favoured the respondent, who had been waiting for benefits.

The motion for a stay was dismissed.

The applicant insurer brought an urgent motion to stay a Licence Appeal Tribunal (LAT) order that denied an adjournment of an upcoming hearing, pending a judicial review application.

The applicant argued that denying the adjournment violated procedural fairness and the right to counsel of choice, as newly retained counsel was unavailable for the scheduled dates.

Applying the RJR-MacDonald test, the court found a serious issue to be tried but concluded the applicant failed to establish irreparable harm, noting other counsel from the firm might be available.

The court also found the balance of convenience favoured the respondent, who had been waiting for benefits.

The motion for a stay was dismissed.

The defendant County brought a motion for further discovery and production of documents in an action arising from a 2009 motor vehicle accident that was not commenced until 2017.

The County sought evidence relevant to a limitation period defence, specifically regarding the plaintiff's capacity and whether a litigation guardian had been appointed earlier.

The court found the plaintiff's affidavit of documents was sufficient and privilege had not been waived.

The court ordered the plaintiff to answer certain refused questions relating to employment records and police calls, but upheld refusals based on solicitor-client privilege and relevance.

The defendant was granted two additional hours of discovery.

Following the dismissal of the defendants' motions for summary judgment regarding a prefabricated building dispute, the parties could not agree on costs.

The plaintiff sought $50,000 in elevated costs or $40,000 on a partial indemnity basis.

The court found no basis for elevated costs but awarded the plaintiff partial indemnity costs.

Noting some excessiveness in the plaintiff's use of two lawyers, the court fixed the costs at $33,000, inclusive of disbursements, to be paid equally by the defendants, and ordered a case conference to manage outstanding issues.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action regarding the defective construction of a storage building.

The defendants argued they owed no duty of care because they followed the plaintiff's specifications for ventilation, and that the action was statute-barred.

The court dismissed the motion, finding the defendants failed to meet their evidentiary burden to show there was no genuine issue requiring a trial regarding their duty of care and reliance.

The court also found the evidence did not establish the claim was discovered outside the two-year limitation period.

The applicant was injured in a motorcycle accident and subsequently settled her statutory accident benefits claim with the respondent insurer for $50,000.

Years later, she applied for a catastrophic impairment determination, which the insurer denied on the basis of the prior full and final settlement.

At a preliminary issue hearing, the applicant argued she lacked capacity and was under duress when she signed the settlement.

The Tribunal found the settlement was valid, the cooling-off period had expired, and the applicant failed to establish mental incapacity or duress.

The application was dismissed as statute-barred.

The applicant sought reconsideration of a Tribunal decision denying medical benefits and post-104 week income replacement benefits.

The applicant introduced fresh evidence in the form of a psychiatric assessment by the respondent's own expert, which causally linked the applicant's severe alcohol use disorder and depression to the accident.

The Tribunal admitted the fresh evidence and found that the applicant sustained psychological impairments as a result of the accident.

Consequently, the Tribunal concluded the applicant suffered a complete inability to perform any occupation and awarded post-104 week income replacement benefits, as well as medical benefits for a psychological assessment and occupational therapy.

The request for personal training services was dismissed.