Todd J. McCarthy

The applicant, a minor who sustained a catastrophic brain injury in a motor vehicle accident, sought statutory accident benefits for private school tuition and rehabilitation support worker services.

The insurer denied the claims based on its own medical examinations.

The arbitrator found the insurer's denials unreasonable, preferring the evidence of the applicant's treating team that the services were necessary for his social reintegration and cognitive development.

The arbitrator awarded the claimed benefits, interest, and a $28,000 special award against the insurer for unreasonably withholding payments.

The applicant insurer sought judicial review of a Director's Delegate decision that overturned an arbitrator's order granting an adjournment and requiring the insured to attend an independent medical examination.

The insured had delivered new orthopedic reports shortly before the scheduled arbitration.

The Divisional Court exercised its discretion to hear the interlocutory judicial review, finding that proceeding without the examination would deny the insurer procedural fairness and amount to trial by ambush.

The Court held that the Director's Delegate unreasonably fettered the arbitrator's discretion to ensure a fair hearing by requiring 'extraordinary circumstances' for an adjournment.

The decision of the Director's Delegate was quashed and the arbitrator's decision restored.

The appellant was successful in her appeal of a preliminary arbitration order regarding statutory accident benefits.

She sought her legal expenses of the appeal in the amount of $7,742.47.

The respondent argued that each side should bear their own expenses or the amount should be reduced because the appellant was only successful on one of three issues raised.

The Director's Delegate rejected the respondent's argument, finding that the appellant was successful in having the appeal accepted and the order set aside.

The Delegate found the claimed hours, hourly rate, and disbursements to be reasonable and awarded the appellant her full legal expenses of $7,742.47.

The appellant insurer appealed an arbitrator's order allowing the insured to add an income replacement benefits (IRB) claim to an ongoing arbitration proceeding.

The insured had originally commenced a court action for IRBs within the two-year limitation period but later sought to add the IRB claim to an arbitration proceeding that was commenced more than two years after the insurer's refusal to pay.

The Director's Delegate allowed the appeal, holding that under s. 281.1(1) of the Insurance Act and s. 51(1) of the SABS, an insured must choose a forum within the two-year limitation period and cannot subsequently add the claim to a different forum outside that period.

The insured was therefore precluded from arbitrating the IRB claim.

The appellant was injured in a motor vehicle accident and applied for non-earner benefits, which the respondent insurer denied.

On the eve of the arbitration hearing, the appellant served updated medical reports opining that she suffered a complete inability to carry on a normal life.

The respondent requested an adjournment and a stay to conduct an orthopaedic insurer medical examination (IME), which the arbitrator granted.

On appeal, the Director's Delegate rescinded the stay and remitted the matter for a new hearing date.

The Delegate found that the arbitrator erred in law by failing to consider the strict criteria for adjournments and late service of documents under the Dispute Resolution Practice Code, noting that the respondent had ample prior opportunity to request an IME and that the updated reports did not constitute extraordinary circumstances justifying a delay.

An Ontario resident insured by the respondent was injured in a car accident in North Carolina caused by a driver insured by the appellant.

The respondent paid statutory accident benefits and demanded arbitration for loss transfer under s. 275 of the Insurance Act.

The appellant refused, arguing the scheme did not apply because the accident occurred outside Canada and the policy was issued in North Carolina.

The Court of Appeal dismissed the appeal, holding that because the appellant is an Ontario insurer, it is required to arbitrate the claim.

The applicant was receiving income replacement benefits following a motor vehicle accident.

The insurer terminated these benefits based on a revised section 42 psychological report.

The applicant brought a preliminary issue arguing the insurer breached procedural requirements under sections 35, 37, and 42 of the Statutory Accident Benefits Schedule, and that this non-compliance entitled her to ongoing benefits.

The arbitrator found that the insurer did breach the procedural requirements by failing to provide timely notice and failing to request a new disability certificate.

However, applying appellate jurisprudence, the arbitrator held that these procedural flaws did not invalidate the clear and unequivocal notice of termination, nor did they automatically entitle the applicant to ongoing benefits.

The preliminary issue was dismissed, and the matter was ordered to proceed to a full hearing on the merits.

The appellants appealed a jury's damages award of nearly $1 million following a motor vehicle accident where liability was conceded.

The appellants argued the trial judge improperly interfered by questioning witnesses to assist the plaintiff's case, unfairly diminished the defence's position in the jury charge, and that the damages were excessive.

The Court of Appeal dismissed the appeal, finding the trial judge's questions were largely for clarification and non-confrontational, noting that experienced trial counsel did not object.

The court also found the jury charge was fair and balanced, and saw no basis to interfere with the damages award.

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

A dispute arose regarding her entitlement to income replacement benefits and attendant care benefits, which she initially pursued through a court action.

She later sought to add these claims to an ongoing arbitration proceeding regarding her catastrophic impairment status.

The insurer argued that the claims were statute-barred from proceeding to arbitration under section 281.1 of the Insurance Act and section 51 of the Schedule.

The Arbitrator held that the claims were not statute-barred, finding that commencing a court action within two years of the insurer's refusal to pay fully satisfied the limitation requirement, and the claims could subsequently be added to the arbitration proceeding.

Furthermore, the insurer failed to properly terminate the attendant care benefits by not arranging a required DAC assessment.

The applicant was injured in a motor vehicle accident and commenced a court action for certain accident benefits.

She later applied for arbitration to determine if she sustained a catastrophic impairment.

A priority dispute determined that Certas, not Dominion, was the priority insurer.

The applicant sought to add Certas to the arbitration, while Certas sought to stay the arbitration, arguing all issues should be heard in the existing court action.

Applying the pragmatic balancing of interests test from Mangat, the arbitrator found that allowing both proceedings would create an unacceptable risk of inconsistent results regarding causation and credibility.

However, the arbitrator permitted the applicant to consolidate all issues in the arbitration, provided she seeks leave to withdraw or discontinue her court action, as this would result in the most just, quickest, and least expensive resolution.

Certas was added as a party, and Dominion remained a party to respond to a special award claim.

The appellants appealed a jury verdict awarding damages under the Family Law Act following a fatal motor vehicle accident.

They argued the trial judge erred by failing to correct inflammatory comments by the respondents' counsel, allowing a loss of income claim without actuarial evidence, and that the $200,000 award to the deceased's mother for loss of care, guidance and companionship was grossly excessive.

The Court of Appeal dismissed the appeal regarding the jury addresses and the loss of income claim, finding the trial judge's instructions were sufficient and actuarial evidence is not strictly required.

However, the Court allowed the appeal in part by reducing the mother's award for loss of care, guidance and companionship to $125,000, finding the original amount exceeded the permissible range.

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

After two days of hearing, the parties reached a settlement wherein the Insurer agreed to pay $10,000 for benefits, $3,000 for interest, and the Applicant's expenses in accordance with the Expense Regulation.

The parties could not agree on the quantum of expenses.

The Arbitrator interpreted the Insurer's offer to settle and awarded the Applicant $12,639.40 in fees and disbursements, rejecting the Insurer's argument that the fees should be reduced due to the Applicant's delay in accepting the offer.

The appellants challenged the trial judge's decision to discharge a civil jury on the grounds of complexity, arguing it violated sections 7 and 15 of the Charter.

The Court of Appeal dismissed the appeal, finding that the Charter does not confer a right to a jury trial in civil matters.

The court held that the jeopardy of a civil damages award does not engage section 7, and the class of civil defendants denied a jury trial does not form an analogous ground under section 15.

The insurer brought a motion for an order requiring the insured to attend an orthopaedic examination pursuant to section 42 of the Statutory Accident Benefits Schedule, and for a stay of the arbitration proceedings pending her attendance.

The insured opposed the motion, arguing the issue was res judicata as a previous request had been denied, and that the examination was not reasonably necessary.

The arbitrator found the issue was not res judicata because the insured had recently served new expert reports suggesting a change in her condition.

Applying the objective factors for determining the reasonable necessity of post-application insurer examinations, the arbitrator concluded the examination was reasonably necessary to allow the insurer to respond to the new medical evidence.

The motion was granted and the arbitration proceedings were stayed pending the insured's attendance at the assessment.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario, which upheld two arbitrators' refusals to order independent medical examinations of the respondent claimant.

The arbitrators had denied the insurer's requests primarily due to the insurer's delay in seeking the examinations until the eve of or during the arbitration hearings.

The Divisional Court applied the reasonableness standard of review and dismissed the application, finding that the Director's Delegate reasonably concluded the arbitrators had properly exercised their discretion to refuse the examinations in the interests of fairness and preventing delay.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario.

The Director's Delegate had overturned a preliminary arbitration order that found the respondent insured's application for mediation was time-barred.

The Divisional Court held that the Director's Delegate was reasonable in concluding that the two-year limitation period under the Insurance Act and the Statutory Accident Benefits Schedule did not begin to run until the insurer provided notice of refusal to pay following a negative Designated Assessment Centre report, rather than from the initial notice of stoppage of benefits.

The application for judicial review was dismissed.

The appellant was injured in a rear-end motor vehicle collision.

At trial, the jury found neither the appellant nor the respondent negligent, accepting evidence that an unknown driver cut in front of them and caused the sudden braking.

The appellant's action was dismissed.

On appeal, the appellant argued the unknown driver evidence should have been excluded because it was not pleaded.

The Court of Appeal dismissed the appeal, noting the evidence was known to the appellant and admitted without objection at trial.

The court also upheld the jury's assessment of damages as defensible based on the evidence of soft tissue injuries.

Manitoba Public Insurance (MPI) brought a motion for directions regarding an unpaid costs award of $12,000 from a priority dispute over accident benefits.

MPI was successful in the underlying arbitration and application, but took no part in the subsequent appeal between Allstate and the Motor Vehicle Accident Claims Fund.

The Court of Appeal ordered Allstate, as the unsuccessful party on the appeal, to pay MPI's $12,000 costs from the lower proceedings, plus $1,000 for the costs of the motion.

The appellant, an innocent bystander, was rendered paraplegic after being struck by a bullet fragment during a drive-by shooting.

She brought an action against the unidentified driver of the vehicle and her own automobile insurer under the OPCF 44R Endorsement.

The insurer successfully moved for summary judgment on the basis that the injuries did not arise directly or indirectly from the use or operation of an automobile.

The Court of Appeal dismissed the appeal, finding that while the vehicle was used for an ordinary purpose, the shooting was a distinct and intervening act that broke the chain of causation.

The appellant was involved in a motor vehicle accident before the Limitations Act, 2002 came into force, but was sued by the respondents after it came into force.

The appellant sought to add counterclaims for contribution and indemnity against one of the respondents and two new parties.

The motion judge dismissed the request, finding the two-year limitation period under the new Act had expired.

On appeal, the appellant argued the transition provisions of the new Act applied because he discovered his claims on the date of the accident.

The Court of Appeal dismissed the appeal, holding that a claim for contribution and indemnity is based on the failure of concurrent tortfeasors to pay their fair share, which did not occur until after the new Act came into force.

Therefore, the transition provisions did not apply and the new Act's limitation periods governed.