Todd J. McCarthy

The appellant appealed a trial judgment awarding damages for lost profits arising from a breach of contract.

The appellant argued the trial judge erred in accepting the plaintiff's expert's historical approach to calculating lost profits and failed to consider whether lost advertisements were transferred to other accounts.

The Court of Appeal dismissed the appeal, finding the trial judge was entitled to accept the plaintiff's expert evidence and that the argument regarding transferred advertisements was not sufficiently developed in the evidence.

The applicant was injured in a motor vehicle accident and subsequently developed a severe psychiatric disorder, regressing to a child-like state.

She applied for catastrophic impairment designation and various statutory accident benefits, which the insurer denied, arguing her condition was pre-existing and unrelated to the accident.

The arbitrator preferred the evidence of the applicant's treating physicians and experts, finding that the accident materially contributed to her regressed state and that she suffered a catastrophic impairment.

The applicant was awarded post-104 week attendant care, housekeeping, and income replacement benefits, along with interest and arbitration expenses.

The insurer's claim for repayment of a without prejudice advance was dismissed.

The applicant was injured in two motor vehicle accidents and claimed statutory accident benefits for chiropractic treatment.

The insurer sought production of the applicant's collateral benefit carrier file and group insurance contract to determine if collateral benefits were available.

The applicant refused, arguing the request was a bad faith delay tactic and not raised during mediation.

The arbitrator ordered production, finding the documents relevant to calculating the medical benefits owed and noting the insurer had previously raised the issue of collateral benefits.

State Farm appealed an arbitrator's decision that Mrs. Scott's HOOPP disability retirement pension was not deductible from her income replacement benefits (IRBs).

Mrs. Scott sought a variation of the IRB quantum.

The Director's Delegate dismissed the appeal, finding the HOOPP pension is a non-indemnity payment akin to a regular pension and thus not deductible from IRBs to prevent double recovery.

The variation application was granted in part, finding an error in the original order regarding the net versus gross amount of long-term disability benefits and the failure to account for CPP disability benefits.

The exact calculation of IRBs was remitted to the arbitrator.

The plaintiff was involved in multiple motor vehicle accidents between 1989 and 1997, resulting in a chronic pain disorder and total disability.

Three separate actions were tried together.

The trial judge discharged the jury due to the complexity of the medical evidence, overlapping injuries, and different statutory regimes.

The trial judge assessed damages globally and apportioned liability among the defendants, holding the defendants from the 1989 accident solely responsible for past and future income loss and future care costs.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's decision to discharge the jury, the apportionment of damages, or the quantum of damages awarded.

The insured's tractor-trailer was damaged in a rear-end collision.

The vehicle was covered by a collision policy from one insurer and a liability policy from another.

The collision insurer paid for the damage and brought a subrogated claim against the liability insurer.

The motion judge held the subrogated claim was barred by section 263(5) of the Insurance Act.

On appeal, the Court of Appeal held that section 263(5) only bars subrogated claims for payments made under a motor vehicle liability policy.

Because the collision policy was not a motor vehicle liability policy, the subrogated claim was permitted under section 278(1) of the Act.

The applicant sought an assessment of expenses following a successful cross-motion for continuing interim income replacement benefits.

The insurer argued that the claimed fees were excessive and that disbursements should be reserved for the main hearing.

The arbitrator found the applicant's claimed hours reasonable given the efficient use of hearing time and the novelty of the issues.

The arbitrator also allowed the disbursements for medical reports, finding them necessary for the motion.

The insurer was ordered to pay the applicant's assessed expenses of $10,323.90.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits.

The insurer suspended benefits after the applicant failed to attend scheduled insurer medical examinations (IMEs) and a Designated Assessment Centre (DAC) assessment, as she had travelled out of the country.

On a preliminary issue hearing, the arbitrator found that the applicant failed to make herself reasonably available for the assessments.

However, because the insurer's notices for the IMEs were defective regarding the income replacement benefits claim, and because the housekeeping and attendant care claims pre-dated the non-compliance period, the arbitrator ruled that the applicant's arbitration could proceed as currently constituted.

The Applicant was injured in a motor vehicle accident and received income replacement benefits (IRBs) from the Insurer.

The Insurer terminated the IRBs and the Applicant elected to attend a Designated Assessment Centre (DAC) assessment.

After retaining counsel, the Applicant cancelled the DAC assessment and applied for mediation.

The Insurer argued the Applicant was precluded from proceeding to arbitration under s. 50(1)(c) of the Statutory Accident Benefits Schedule for failing to attend a required assessment.

The Arbitrator found that the Insurer failed to provide clear and straightforward information about the dispute resolution process, making the election invalid.

Alternatively, the Arbitrator held that the Applicant had a bona fide change of mind after receiving legal advice and was entitled to revoke her election.

The preliminary issue was resolved in favour of the Applicant.

The applicant, who was injured in a motor vehicle accident, applied for statutory accident benefits from the insurer.

During a pre-hearing discussion, the applicant sought to add several issues to the arbitration hearing, including claims for medical and rehabilitation expenses and a special award.

The arbitrator ordered the insurer to respond to seven additional issues previously identified and ordered the applicant to provide particulars for the special award claim.

The arbitrator declined to add two newly raised issues to the hearing because they had not yet been mediated, doing so without prejudice to the applicant's right to mediate them.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits.

The parties resolved the substantive issues and consented to dismiss the arbitration with costs of $500 payable to the insurer.

A preliminary issue arose regarding a joint motion by the parties seeking an expense order against the applicant's former representative, who had been summonsed as a witness but failed to attend the initial hearing date due to illness without notifying counsel.

The arbitrator dismissed the motion, finding no statutory authority under section 282(11.2) of the Insurance Act to award expenses against a non-party or a former representative who was summonsed merely as a witness.

The appellant was shot and stabbed during a car-jacking while sitting in his parked vehicle.

He applied for statutory accident benefits, which were denied by the arbitrator on the basis that the incident did not meet the definition of an 'accident' under the SABS-1996.

On appeal, the Director of Arbitrations upheld the decision, finding that while the automobile provided the location and motivation for the assault, the injuries were directly caused by the intervening acts of the assailants (the gunshot and stabbing), not by the use or operation of the automobile.

The insurer brought a motion to stay the arbitration proceedings and prohibit the insured from receiving income replacement benefits until he attended independent medical examinations (neurology, physiatry, and psychology).

The arbitrator dismissed the motion, finding that the requested examinations were not reasonably necessary at this stage to adjust the claim, but rather appeared to be sought for the tactical purpose of marshalling evidence for the upcoming arbitration.

The insurer had prior notice of the insured's neurological concerns but failed to follow up in a timely manner.

The applicant was injured in a motor vehicle accident in Texas and sought statutory accident benefits under his father's Ontario insurance policy.

The insurer denied the claim on the basis that the applicant failed to submit an application within the two-year time limit prescribed by section 22 of the Statutory Accident Benefits Schedule.

The arbitrator found that the applicant failed to prove he submitted a completed application within two years of the accident.

The application for arbitration was dismissed as the claim was invalidated by subsection 22(2) of the Schedule.

The insurer appealed an arbitrator's decision ordering it to pay the balance of the respondent's treatment expenses and a $250 special award for unreasonably delaying benefits.

The insurer argued the arbitrator erred in calculating the collateral benefits reasonably available from the respondent's supplementary insurer and in imposing the special award.

The Director's Delegate dismissed the appeal, finding that the insurer's arguments were merely disagreements with the arbitrator's findings of fact, which were supported by the evidence, and raised no errors of law.

The insurer appealed an arbitration order requiring it to pay interest on medical and rehabilitation expenses.

The central issue was whether interest under s. 46(2) of the SABS-1996 is payable on expenses awarded at arbitration when a Designated Assessment Centre (DAC) previously reported the expenses were not reasonable and necessary.

The Director's Delegate held that a negative DAC report generally suspends the obligation to pay, meaning benefits are not 'overdue' prior to adjudication.

However, the appeal was dismissed because the insurer had voluntarily paid for the sessions but at a reduced hourly rate, making the shortfall an overdue payment subject to interest.

The respondent was insured under an accidental death and dismemberment policy and submitted a claim for the loss of use of her leg.

The appellant insurer rejected the claim.

The respondent commenced an action slightly more than a year after submitting her proof of claim, but less than a year after the rejection.

The appellant moved for summary judgment, arguing the action was barred by the one-year limitation period in s. 206(1) of the Insurance Act.

The motion judge dismissed the motion, holding the period began upon unequivocal rejection.

The Court of Appeal allowed the appeal, holding that the limitation period begins to run when the insurer receives sufficient evidence to assess the claim, not upon rejection, and that the discoverability principle does not apply to this statutory provision.

The applicant was injured in a motor vehicle accident and sought ongoing income replacement benefits beyond the 104-week mark, as well as the cost of a golf cart as a rehabilitation expense.

The insurer terminated benefits, arguing the applicant's inability to work was due to a pre-existing back injury and that she was capable of working with accommodations.

The insurer also argued that the applicant's HOOPP disability pension should be deducted from any income replacement benefits.

The arbitrator found that the motor vehicle accident materially contributed to the applicant's impairments, rendering her completely unable to perform any suitable occupation.

The arbitrator also held that the HOOPP pension was not an income continuation plan or temporary disability benefit, and thus was not deductible.

The applicant was awarded ongoing income replacement benefits and the cost of the golf cart.

The applicant was injured in a motor vehicle accident and received income replacement benefits (IRBs) until they were terminated by the insurer.

In a preliminary decision during the arbitration hearing, the arbitrator determined that the period of entitlement to IRBs before him included the post-104-week period.

The arbitrator also ruled that the appropriate disability tests were those set out in subsections 5(1) and 5(2)(b) of the Schedule for the pre- and post-104-week periods, respectively.

Finally, the arbitrator allowed the insurer to add the issue of repayment of IRBs to the proceeding based on alleged wilful misrepresentation.

The appellant appealed an arbitration order, alleging that the Arbitrator was biased, spoke to her representative in an antagonistic manner, and ignored evidence and submissions.

The appellant failed to order a transcript of the hearing despite being warned that the allegations of bias needed to be proven with evidence from the record.

The Director's Delegate dismissed the appeal, finding that without a transcript, the appellant could not substantiate her claims regarding the Arbitrator's conduct or evidentiary rulings.

The appellant was ordered to pay $1,000 in expenses to the respondent.