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Applicant barred from occupational therapy claim for missing insurer examination; vestibular physiotherapy plan approved.
The applicant sought statutory accident benefits following a motor vehicle accident, disputing the insurer's denial of multiple treatment plans for occupational therapy and physiotherapy.
The Tribunal found the applicant was barred from proceeding with the occupational therapy claim due to her unjustified non-attendance at a reasonably necessary insurer's examination.
The Tribunal denied three general physiotherapy plans for lack of supporting medical evidence, but approved a vestibular physiotherapy plan specifically recommended by a concussion clinic to address ongoing neurological symptoms.
Claims for a bad faith award and costs were dismissed.
Appeal allowed; Ontario action permitted to proceed to avoid multiplicity of proceedings despite Michigan accident.
The plaintiff was injured in a motor vehicle accident in Michigan and brought an action in Ontario against the Michigan driver and owner, an unidentified driver, and her own Ontario insurer.
The defendants successfully moved to stay the action on the basis of forum non conveniens, arguing Michigan was the more appropriate forum.
On appeal, the Court of Appeal found the motion judge erred by failing to give weight to the plaintiff's choice of forum and by not considering the claim as a whole, including the necessary claim against the Ontario insurer.
The appeal was allowed and the stay was set aside, allowing the action to proceed in Ontario to avoid a multiplicity of proceedings.
