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The applicant was involved in a single-vehicle accident on June 25, 2017. He applied for statutory accident benefits and sought catastrophic determination under Criterion 4 and monthly attendant care benefits. The hearing proceeded over 5 days before Adjudicator Fogarty and included written closing submissions. Adjudicator Fogarty ultimately found that the applicant did not sustain a catastrophic impairment and was not entitled to any monthly attendant care benefits, whatsoever.
The Tribunal reviewed the requirements for a finding of catastrophic impairment under Criterion 4 and noted the following requirements:
i) Using diagnostic technology, the applicant must show intracranial pathology results that were demonstrative of brain injury; and
ii) The injury shown must be caused by the accident at issue; and
iii) Using the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale (“the GOS-E”), the applicant must reach a certain level of disability (Level 5 – lower moderate disability one year or more after the accident)
It was not disputed that the applicant suffered from an intracranial brain injury that was caused by the accident. The central issue for the Tribunal in determining whether a CAT impairment was made out was whether the applicant suffered a Level 6 (upper moderate disability – not grounds for a finding of catastrophic impairment) or Level 5 (lower moderate disability – sufficient for a finding of catastrophic impairment). The GOS-E assessment findings of the applicant’s assessors and the respondent’s assessors differed in one, major area: whether the applicant’s brain injury resulted in his being unable to work, only being able to work in a sheltered or environment or only being able to work in a non-competitive workplace (all of which would be sufficient for a CAT finding) or if he suffered simply a reduced work capacity (which would not be sufficient for a CAT finding).
Adjudicator Fogarty found that the applicant suffered, at worst, a reduced work capacity. She noted extensive documentary and viva voce evidence confirming that the applicant had sought work after the accident, been paid for casual, construction projects (similar to his pre-accident employment), turned down a psychotherapy appointment to perform “some cash work at a great wage”, applied to the Canadian reserves and generally became more active and engaged after the accident. The adjudicator also found (at para 32) that: “…despite the TBI, the applicant seems to be thriving, from a personal growth perspective, in comparison to his pre-accident condition”.
As well, the adjudicator found that the applicant was not entitled to monthly attendant care. She noted that he had taken up teaching jiujitsu to children in his community after the accident, that he had carried on taking care of his young daughter independently, maintained a strict diet without supervision to further his bodybuilding goals and that he generally exhibited “control over his executive functions who has trained himself to the pinnacle of his personal fitness goals”. Lastly, she noted that the applicant himself had turned away all prior attempts by his family to provide him with attendant care assistance from shortly after the accident to the time of the hearing.
Finding that the applicant did not suffer a catastrophic impairment and that he was not entitled to attendant care benefits, Adjudicator Fogarty dismissed the LAT application in its entirety.
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This matter involves a successful appeal following the dismissal of a motion to set aside a Registrar’s Dismissal Order, reported at 2022 ONSC 1850.
Background and Registrar’s Dismissal
The appellant was in a motor vehicle accident on May 11, 2012. She retained counsel, Mr. P. and a Notice of Action and Statement of Claim were issued on May 6, 2014, and May 27, 2014, respectively. Under a former version of Rule 48.15 (1), of the Rules of Civil Procedure, the Registrar provided notice that the claim would be dismissed as abandoned in November 2014 unless a Statement of Defence was filed. The notice was sent to plaintiff counsel, but it did not come to his attention due to clerical error, an extended vacation, and an ongoing physical disability he suffered during a 2010 bicycle accident. The notice was not provided to the defendant.
It is undisputed that the respondent requested a waiver of defense while it investigated the matter on June 24, 2014. Unknown to both parties, the matter was dismissed on December 29, 2014, by the Registrar. Unaware of the dismissal, the respondent requested a waiver of defence again on August 18, 2015.
Due to his medical condition, Mr. P. was required to transfer this matter to another lawyer, Mr. R.P. The respondents served a statement of defence on October 20, 2017, following a demand for the same by Mr. R.P., and examination for discovery was scheduled. Mr. R.P. discovered the dismissal when he tried to file a notice of change of solicitor. The motion to set aside the dismissal was brought in May 2018 but not heard until December 2, 2021.
The Motion to Set Aside the Registrar’s Dismissal
In refusing to set aside the Registrar’s Dismissal, the motion judge, Justice Gibson, stated that "…the recurrent theme throughout this matter has been an inordinate delay on the part of the [appellant] and her counsel." He found there was no satisfactory explanation for the litigation delay or the delay in bringing the set aside motion once the dismissal was discovered. He found the appellant had not shown a positive intent to proceed with the action. As a key consideration, Justice Gibson concluded the appellant had not met her onus to establish no significant actual prejudice to the respondents. He listed prejudice including, that locating witnesses would be difficult, memories may have deteriorated, a defence medical would be significantly delayed, and lack of timely discoveries would “hamper the ability to obtain accurate recollections of the parties”. He also considered the security of legal positions and finality. On these findings, Justice Gibson dismissed the appellant's request to set aside a dismissal order.
The Appeal
On May 30, 2023, the Court of Appeal allowed the appellant’s appeal, and motion judge’s order dismissing the appellant’s motion and the Registrar’s dismissal order were set aside. he primary finding of the appeal court was that “…the motion judge erred by ignoring strong evidence of the absence of any prejudice to the respondents… in all the circumstances of this case. In doing so, he, “…adopted broad assertions of general prejudice… without considering them in the specific context of this case”. The court stated that:
[16] Put simply, the respondents’ claims of prejudice arising from the passage of time and their resulting inability to mount an effective defence are belied by the fact that they proceeded based on an understanding that the action was ongoing and asked that they not be required to file a defence while they took investigative steps for three years after the action was dismissed. It is difficult to conceive how they suffered any actual prejudice in these circumstances.
In essence, as the respondent was unaware of the dismissal and litigating the claim as if the dismissal had not occurred, there is no legitimate claim that the delay to set aside the dismissal caused any prejudice. The motions judge’s considerations regarding finality and security of legal positions were flawed, as clearly the respondent was not secure in a position that the claim had been dismissed prior to serving its defence in October 2017. In addition to the primary finding reading prejudice, the court also found evidence of the appellant’s intention to proceed with the action and steps taken to advance the litigation, particularly after Mr. R.P. took over the action. However, the primary basis for allowing the appeal was the error in relation to the key consideration in setting aside a Registrar’s dismissal order, that of prejudice.
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The claimant was involved in an automobile accident on September 12, 2018.
The preliminary issue is dispute was whether the applicant was barred, pursuant to s. 55(1)3 of the Schedule, from proceeding with her application since she failed to provide information to the respondent in accordance with s. 46.2 and s. 46.3 of the Schedule. Adjudicator Kaur found that the applicant was indeed barred from proceeding with her application for Attendant Care Benefit as she had not complied with s. 46.2 and s. 46.3.
Under s. 46.2, an insurer may request any information from a provider that the insurer requires, acting reasonably, to determine its liability for payment. In this case, the provider was requested for a statutory declaration as it relates to the invoice and the particulars for goods and services provided.
Under s. 46.3(1), an insurer may also request from the insured person (1) confirmation in writing that the goods and services were provided; and (2) a statutory declaration as to the circumstances that gave rise to the invoice. Further, s. 46.3(2) requires the insured person to provide the information requested within 10 business days after receiving the request.
Additionally, s. 55(1) bars the insured person from applying to the Tribunal if the request made under s. 46.2(1) is not complied with by the service provider in whole or in part.
In her analysis, Adjudicator Kaur noted that the respondent had made multiple requests for the particulars pertaining to the invoices for the attendant care as well as a statutory declaration from the applicant and the service provider. Moreover, the applicant agreed to provide the particulars when the parties attended the case conference and has failed to do so. The respondent required this information in order to determine its liability for the amount payable under the invoices because the provider has not complied with the request in whole or in part.
Adjudicator Kaur further noted that the invoices that were provided by the service provider do not provide a breakdown of the services or amount of time that was spent. Additionally, the applicant returned an incomplete statutory declaration. She did not provide any of the information that was requested and nor did she provide an explanation as to why she did not fill out the statutory declaration.
Ultimately, the application was dismissed at the preliminary hearing, and the applicant was barred from proceeding with the application for attendant care benefit.
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The applicant was involved in an incident on December 7, 2020.
The Respondent raised a preliminary issue, whether the incident that occurred would meet the definition of an “accident” as per s. 3(1) of the Schedule.
While filling air in his tires, the applicant slipped and fell on ice at the gas station on an icy winter day. The applicant sustained injuries to his left eyebrow and fractured his humerus bone. Adjudicator Grant found that this incident did not meet the definition of an “accident” as per the Schedule, and that the applicant is not entitled to the Accident benefits.
Under s. 3 (1) of the Schedule, “accident” means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.
The two-part test for determining whether an incident is an accident is well established in Greenhalgh v. ING Halifax Insurance Company. The first part of the test is whether the incident satisfies the purpose test. Adjudicator Grant agreed that the purpose test is met as putting air in the tires in order to operate a vehicle safely constitutes the ordinary and well-known activities for which automobiles are used.
But there is a break in the chain of causation, the second part of the test. Adjudicator Grant further analyzed the “intervening act” and the “dominant feature”. The Respondent successfully argued that the use or operation of the parked car was not a direct cause of the applicant’s injuries. Instead, it was the fall on the ice outside the automobile that caused the injuries, thus creating a break in the chain of causation.
In considering the “dominant feature” argument, Adjudicator Grant was persuaded by the decision in Ritchie v. Wawanesa, 2021 CanLII 134534 (ON LAT), where the Vice Chair Maedel concluded, that “falling on ice is a foreseeable and common risk when walking in parking lots in the winter”. Similarly in this case, ice was found to be the dominant feature of the fall, not the use or operation of the motor vehicle. The fall on ice created an intervening event, breaking the chain of causation.
Adjudicator Grant in concluding that the applicant’s injuries were not as a result of an ”accident”, highlighted the “failing on ice” as a foreseeable risk when walking in a parking lot in the winter and that the icy surface was present whether a vehicle was involved or not.
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The claimant was involved in a relatively minor accident on October 4, 2012.
The applicant applied for CAT determination under Criterion 8, and the hearing proceeded over 3 days before Adjudicator Michael Beauchesne. Ultimately, Adjudicator Beauchesne found that the claimant did not sustain a catastrophic impairment as defined by the SABS.
The scope of the issues was narrow. The dispute proceeded under the pre-2016 Schedule, which only requires an applicant to prove the accident caused one Class 4 Marked Impairment. The applicant relied on the opinions of Dr. Lisa Becker (physiatrist) and Dr. Harold Becker (family physician), which found a single Class 4 Impairment in the domain of adaptation to work and work-like settings. Neither Dr. Becker was called to testify at the hearing.
In his analysis, Adjudicator Beauchesne was unable to place any weight on the applicant’s CAT opinion. In doing so, he applied the requirement under s.45(2)1 of the Schedule, which provides that the determination of catastrophic impairment shall be conducted only by a physician. Adjudicator Beauchesne found there was no ambiguity in what the section required, and the applicant’s physicians had: “…abdicated their responsibility and instead depended on their assistants to conduct the determination that only they, as physicians, are eligible to do under the Schedule.” It was Dr. Davidson, a neuropsychologist, who conducted the assessment of catastrophic impairment. The physicians provided no analysis in the report that pertained to the Criterion 8 findings. Adjudicator Beauchesne highlighted “...the absence of independent thought, reasoning, or analysis”, and accordingly, the applicant’s CAT opinions were given no weight.
In absence of a compelling medical basis, the testimony of the applicant and his partner were insufficient to meet the burden of proof for catastrophic impairment as defined by the Schedule.
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The claimant was involved in a head on motor vehicle collision on June 29, 2017. He was 25-years-old at the time of the accident. He sought a CAT determination under Criterion 8 and an 8-day video conference hearing was held in October of 2022, before Adjudicator Harry Adamidis. Adjudicator Adamidis found that the claimant did not sustain a catastrophic impairment as defined by the SABS.
Adjudicator Adamidis agreed with the respondent that the claimant does not suffer from a marked impairment in activities of daily living or social functioning. Regarding activities of daily living, the claimant’s own testimony was that he could shower, brush his teeth, and put on clean clothes “but not all the time.” The claimant was consistent with his exercise routines and continued to participate in a significant level of treatment. While Adjudicator Adamidis accepted a lack of motivation leading to decreased functional ability, he found that this frequency of task completion was not compatible with a significant impediment of useful function but rather with some continued useful functioning (a moderate impairment).
Moreover, Adjudicator Adamidis considered the claimant’s performance at the hearing itself, which Adjudicator Adamidis termed a “highly stressful situation.” The claimant’s ability to communicate appeared to be unimpeded over three days of testimony.
Adjudicator Adamidis rejected the claimant’s argument that while he can do many activities, he is catastrophically impaired as he cannot engage in those activities without the use of drugs or alcohol. Adjudicator Adamidis agreed with the respondent and drew an adverse inference from the claimant’s failure to provide prescription summaries past 2019. Accordingly, Adjudicator Adamidis did not accept the claimant’s testimony that he needed to be medicated to complete his activities of daily living.
The claimant also argued that while he still drives to do errands for his mother and grandmother this is because they do not understand his psychological impediments and he does not want to upset them. Adjudicator Adamidis found that “the pressure the applicant feels from his mother and grandmother does not sufficiently explain his functional ability to accommodate normal, routine requests for driving. It is more likely that his ability to accommodate these requests demonstrates proficiency in the activities of daily living.” An ability to drive in this manner is again consistent with a moderate, not marked, impairment in activities of daily living.
Regarding social functioning, Adjudicator Adamidis found that although the claimant was frustrated with the people in his life, he was able to conduct himself accordingly. Adjudicator Adamidis also found it significant that the claimant had commenced and maintained a romantic relationship following the accident. While Adjudicator Adamidis accepted that the claimant’s social circle was now limited to his girlfriend and family, given the way he was able to interact with these people, this was not compatible with a significant impediment to useful functioning.
Also noteworthy in this case is the fact that the claimant was receiving ongoing post-104 IRBs after an insurance examination by a psychologist found that he was unable to return to any work. Despite this fact, Adjudicator Adamidis did not find that the claimant is catastrophically impaired.
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The claimant was involved in a relatively minor accident on August 23, 2018.
This is the claimant’s second application to the LAT. Previously a 5-day hearing was held in January 2022 to determine whether she was entitled to pre- and post- 104-week IRB. Adjudicator Neilson’s decision released on August 11, 2022, held that the claimant was entitled to pre-104 IRB but that she had failed to prove that she was entitled to post-104-week IRB.
The claimant’s current LAT application seeks CAT determination under Criterion 8 and a 7-day hearing was held in March 2023 before Adjudicator Clive Forbes. Ultimately, Adjudicator Forbes found that the claimant did not sustain a catastrophic impairment as defined by the SABS.
In analyzing the four areas of function under Criterion 8, Adjudicator Forbes agreed with the respondent and found that most of the claimant’s impairments existed before the accident. Adjudicator Forbes noted that the claimant failed to accurately capture and describe both her pre- and post- accident function, based on the totality of the medical evidence available. Adjudicator Forbes remarked that not much had changed with the claimant’s function post-accident. Adjudicator Forbes relied on the claimant’s ODSP forms completed by her family physician within 1 year pre-accident which described her suffering from significant psychiatric impairments including social isolation, requiring support and supervision with housekeeping, groceries, and intellectual activities. With regards to post-accident level of function, Adjudicator Forbes noted that the claimant was relatively functional post-accident including being responsible for meal preparation, taking her dogs out 5-6 times a day for brief walks and managing her prescription medication.
Adjudicator Forbes assigned very little weight to the claimant’s expert, Dr. Bobbi Ross, agreeing with our client that her evaluation and assessment under Criterion 8 was fundamentally flawed. He held Dr. Ross did not properly address the claimant’s impairments under Criterion 8 (or Chapter 14 of the AMA) and that Dr. Ross was wrong when she “lumped” all of the claimant’s impairments together and rated them all under Criterion 8 despite the impairments not being mental disorders.
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The Applicant was involved in an accident on May 17, 2019. She subsequently made an Application to the Tribunal to address the following issues: entitlement to non-earner benefits, MIG, payment of various OCF-18s, and a Special Award. At the outset of the 3-day hearing, the Applicant withdrew her claim for non-earner benefits. At the end of the hearing, Adjudicator Rebecca Hines held that the Applicant failed to establish that her injuries fell outside of the MIG and, as a result, was not entitled to any of the benefits in dispute nor was she entitled to a Special Award.
Approximately 5-6 months before the motor vehicle accident, the Applicant was a victim or an armed robbery at her workplace. Following this incident, she did not return to work and received benefits through WSIB. She had also been diagnosed with PTSD and other psychological conditions stemming from the robbery. At the time of the motor vehicle accident, the Applicant was still attending WSIB funded psychological treatment in relation to the robbery.
The Applicant argued that her injuries should be removed from the MIG because she suffered both pre-existing physical and psychological conditions. In the alternative, she had also sustained a psychological impairment and chronic pain because of the motor vehicle accident.
In coming to her decision, Adjudicator Rebecca Hines made the following findings:
(1 ) A few pre-accident entries in the family physician’s records referring to a “history of low back pain” and an x-ray showing slight degenerative disc disease was insufficient evidence to conclude that the Applicant’s pre-existing back pain would prevent her from achieving maximum medical recovery within the MIG. Moreover, the Applicant had no opinion from a treating practitioner to support her position.
(2) The Applicant did not visit her family physician until 3 months after the accident. The fact that the Applicant reported neck and back pain on a few occasions post-accident does not support a diagnosis of chronic pain or chronic pain syndrome that would remove her from the MIG. Adjudicator Hines rejected the opinion of Dr. Pernia (the Applicant’s treating chiropractor) on the basis that it was supported by objective medical evidence of reduced functionality. Lastly, Adjudicator Hines noted that Applicant had failed to establish that she met the criteria for chronic pain as set out in the AMA Guides, which has been adopted by the Tribunal is assessing whether the Applicant suffers from Chronic Pain Syndrome falling outside the MIG.
(3) Adjudicator Hines agreed that the Applicant suffered from a pre-existing psychological impairment; however, found no evidence that it would prevent her from achieving maximum medical recovery within the MIG. Adjudicator Hines dismissed the opinion of Dr. Bao who prepared a psychological pre-screen report, noting that his evidence was not helpful or persuasive, as the form was replete with errors and lacked insight into the Applicant’s condition. Adjudicator Hines relied on several WSIB reports prepared by the Applicant’s treating mental health practitioners and noted that the reports did not reflect a change in the Applicant’s psychological diagnosis following the motor vehicle accident, nor was there an increase to her medication. Adjudicator Hines concluded that there was insufficient evidence to support that the motor vehicle accident worsened her pre-existing psychological impairment. Adjudicator Hines also found the insurer’s Psychological IEs persuasive and noted that they were consistent with the WSIB reports.
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We brought a motion for summary judgment seeking a dismissal of an action brought by a homeowner seeking coverage for the cost of repairing property damage arising from her contractor’s negligence. Our client took the position that the claim was excluded from coverage as it constituted the “cost of making good faulty workmanship”.
The insured argued that the property damage was in fact incidental or corollary damage resulting from the faulty workmanship (i.e. damage to windows, doors, fixtures and carpets caused by contractors retained to perform restoration of exterior logs at the home). Since the damage was properly characterized as “resulting damage” according to this argument, it fell outside the scope of the exclusion.
Following extensive argument, Justice Koke held that unlike some other homeowners’ policies, the “faulty workmanship exclusion” at issue was unqualified in that it did not specifically exempt resulting damage. As the exclusion did not contain such an exception, one could not be either read-in or inferred. Justice Koke held that the entire claim flowed from the contractor’s faulty workmanship and therefore fell within the broad and unqualified scope of the exclusion.
Justice Koke added that an all-perils property policy should not be interpreted as a de-facto performance bond or a liability policy for the work of contractors. His view was further bolstered by the policy rationale behind the faulty workmanship exclusion, which is to discourage contractors from cutting corners by being careless and then passing the risk and the cost of that carelessness to the homeowners’ insurer.
Justice Koke quite rightly also rejected the plaintiff’s argument that if the claim is excluded in one clause, it could not be covered in another. In this case, given that the “Property Excluded” clause excluded coverage on account of loss or damage to “property…while being worked on”, but not “the resulting damage to other insured property”, the plaintiff argued that her loss was covered by the exception, notwithstanding the wording of the faulty workmanship clause. In this regard, Justice Koke held that the clear and unambiguous terms of the faulty workmanship exclusion excluded all damages resulting from faulty workmanship without exception and that as a matter of law, “an exception to an exclusion cannot override the clear and unambiguous provisions of another general exclusion clause”.
In the result, given that there were no factual issues in dispute and given Justice Koke’s finding that the claim was excluded, there was no issue requiring a trial. Accordingly, the action against our client was dismissed in its entirety with costs.
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We successfully defended the plaintiff’s motion to add our client’s insureds, Mr. and Mrs. McComiskey, as defendants to an action arising out of an oil spill at a residential property.
The plaintiff argued that her claim against the McComiskeys was “discovered” for the purposes of the Limitations Act, 2002 only after the examination for discovery of another defendant, whose evidence revealed (for the first time, according to the plaintiff), that the oil spill was caused by Mr. McComiskey’s modification of the fuel oil equipment prior to the sale of the property to the plaintiff.
In a well-reasoned decision, Justice Wilcox accepted our argument that the plaintiff (or at least her subrogating insurer), was in possession of the facts necessary to commence an action against the McComiskeys within two-years following the spill. As the motion to add them was brought well beyond the two years following the discovery of the claim, the action was barred and our clients could not be added to the action.
Justice Wilcox’s decision on the issue of limitations was largely fact-driven. He correctly held the discovery of the claim was confirmed, inter alia, by the conversation between the plaintiff’s subrogating insurer and the claims representative for our client, which took place well before the expiry of the limitation period. Justice Wilcox accepted our client’s affidavit evidence that, at the time of this conversation, the plaintiff and/or her insurer were aware: (i) that the McComiskeys had previously owned the property; (ii) that Mr. McComiskey conducted extensive renovations at the property; and (iii) that these renovations may have resulted in ruptured fuel lines which in turn may have led to the plaintiff’s loss. Since this was the basis upon which she now wished to sue Mr. and Mrs. McComiskey, the plaintiff’s claim was out of time. It was a crucial factor in Justice Wilcox’s decision that the plaintiff offered no alternative explanation for this conversation, and that our client was never cross-examined on her affidavit, indicating that her evidence was accepted by the plaintiff.
Justice Wilcox also correctly held that even if the plaintiff did not have actual knowledge of the facts necessary to commence her claim, her efforts to discover her claim fell far short of “reasonable diligence” in the circumstances of this case. In particular, the plaintiff failed to interview Mr. McComiskey, who lived next door to the plaintiff and made himself available to her at all material times. Nor did the plaintiff attempt to contact the TSSA inspector identified in the engineer’s report commissioned by her own insurer. Since this inspector conducted an inspection following an earlier spill at the property, Justice Wilcox found that it was highly likely that he could have provided the plaintiff with the same information as was later obtained in the course of the discoveries that, according to the plaintiff, allowed her to discover her claim.
Finally, after a careful review of the relevant authorities, Justice Wilcox held that since this was not a case of a misnomer, leave to amend the Statement of Claim to substitute Mr. and Mrs. McComiskey as defendants should be refused.
Accordingly, the plaintiff’s motion to add our client’s insureds as defendants to the action was dismissed with costs.
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This subrogated action arose out of a motor vehicle accident occurring between the insured driver (i.e. the Plaintiff), and a cow belonging to the Defendant, which cow had escaped from confinement and wandered onto the roadway. The Plaintiff tried his best to avoid the cow, but was unfortunately unable to stop in time and a collision ensued with the cow. As a result of the accident, the Plaintiff suffered significant damage to his vehicle, which was deemed a total loss. The Plaintiff’s insurer paid out a total of $8,022.62 to the Plaintiff for damages resulting out of the accident and sought to recover this amount in the subrogated action. At trial in the Small Claims Court, it was held that the Defendant was wholly liable for the damages caused to the Plaintiff’s vehicle. The Court found that the Defendant was negligent in that he had not met the standard of care required of keepers of cattle near a highway, given that his fences were shown to have been in a state of disrepair. Furthermore, it was held that the insured driver did not contribute to the accident in any way. Accordingly, the Court awarded judgement in favour of the Plaintiff in the amount sought. In addition, the Court awarded $3,000.00 in costs to the Plaintiff.
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Justice Moore fixed costs following a four-week jury trial. The action arose out of a rear-end motor vehicle accident. The jury returned with a verdict absolving our client, the driver, of any liability. Although he was operating a concrete mixer that rear-ended the plaintiff’s vehicle, the jury found that in light of the prevailing weather condition, the accident was not caused by the defendant’s negligence or want of care. The action was dismissed in its entirety with costs.
Prior to trial, our client had offered to settle the action for a monetary sum plus interest and costs. In light of the dismissal of the action, our client sought costs on a partial indemnity scale up to the date of that offer and on a substantial indemnity scale thereafter. The plaintiff argued that in light of his impecuniosity there should be no costs awarded or that costs should be fixed in a significantly reduced amount than that claimed.
Justice Moore rejected the plaintiff’s argument and awarded costs fixed in excess of $254,000.
Justice Moore acknowledged that in some cases impecuniosity could be considered when fixing costs but held that such impecuniosity must be proven with robust particularity by tendering a complete and accurate disclosure of the plaintiff’s income, assets, expenses, liability and ability to pay. Impecuniosity cannot, as a matter of course, be used as shield to avoid a cost award. The plaintiff failed to meet the high evidentiary threshold and Justice Moore properly held the plaintiff’s alleged impecuniosity would not be a factor in fixing costs.
The decision is also illustrative of the costs consequences of a plaintiff‘s rejecting a defendant’s offer to settle where his action is subsequently dismissed.
The Court of Appeal’s Decision in Strasser Limited v. Richmond Hill (Town) [1990] O.J. No. 2321 (C.A.) has long been held to stand for the proposition that where a plaintiff rejects a defendant’s offer to settle and his action is subsequently dismissed, the defendant is entitled to costs on a substantial indemnity scale following the date of that offer. Lower Courts have recently been more reluctant to follow Strasser unless there is evidence the plaintiff’s conduct was deserving of sanction.
Justice Moore followed Strasser and held that costs on a substantial indemnity scale were warranted as the defendant’s offer was more than reasonable and gave the plaintiff the opportunity to settle the action and avoid the trial. As for the plaintiff’s conduct, Justice Moore described him as lacking credibility in giving his evidence at the trial and to his experts prior to the trial. Justice Moore described the deficiencies in the plaintiff’s case as plentiful, glaring and substantial. In these circumstances, the plaintiff’s decision to force the defendant to the costs of a trial was sufficient to support an award of costs on a substantial indemnity scale. In refusing to significantly reduce the amount of costs claimed, Justice Moore stated that the following:
“Mr. Iannarella‘s testimony was suspect and cried out for close scrutiny throughout the trial and the preparation for trial in this matter. The defendants enjoyed the success they did at trial is a testament to the hard work necessarily undertaken by counsel. Mr. Iannarella should reasonably have expected nothing less”
Justice Moore’s decision is a fresh reminder that in the context of a personal injury action the plaintiff cannot rely on impecuniosity to avoid the costs consequences that follow a dismissal of an action. Additionally where the action is based on plaintiff’s unfounded or exaggerated claims of injury and resulting disability forcing the defendant to incur great expense to defend the costs may ultimately be fixed on a substantial indemnity scale.
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Our client was successful in responding to a motion for summary judgment by the defending insurer seeking to dismiss its recovery action against the judgment creditor’s insurer brought pursuant to s.132 of the Insurance Act. The liability insurer denied coverage to the defendant on the basis she was not member of the household of the named insured and therefore not entitled to a defence or indemnity in response to the action against her. The insurer moved for summary judgment. Following the dismissal of the motion our client sought costs fixed on a substantial indemnity scale on the basis that in the face of the recent Court of Appeal decision in Combined Air Mechanical Services Inc. v. Flesch and the conflicting versions of the events needed to decide the coverage issue the motion ought not have been brought. The motion judge agreed holding that in light of the evidence lead it was unreasonable for the liability insurer to bring the motion warranting costs of the motion be fixed on a substantial scale.
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We successfully defended a property insurer in a claim brought by its insured arising from a fire intentionally set by an occupant of the premises who was later declared not criminally responsible for the arson. The insurer denied the claim arguing that regardless of the unnamed insured’s psychological condition or the declaration of NCR as he intended to set fire the claim fell within the intentional act exclusion. After the action was dismissed, the insurer sought costs. The plaintiff insured argued that there should be no costs as they were not involved in the arson. The trial judge disagreed and after applying the relevant factors fixed costs in the amount of $122,000.
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Our clients, homeowners, were brought into a dispute between MOE and the City of Kawartha Lakes arising from the cost of remediating oil contamination on municipal property which originated from his premises. The Municipality appealed the MOE’s order that it remediate the contamination on municipal lands arguing that ordering an innocent party to remediate violated the “polluter pays” principle. For the homeowners, we argued the statutory framework of the EPA under which the order was made, imposed strict liability on land owners to remediation contamination regardless of its origin including a neighbouring property and that homeowner alleged involvement in causing the contamination the municipal lands was therefore irrelevant. In addition, any finding on the homeowner’s involvement could impact the insurer’s subrogated action brought against the fuel oil supplier. The ERT agreed and in a comprehensive review of the legislative history of the EPA held that any evidence relating to “fault” or the involvement of the owner in causing the spill on the municipal property was irrelevant. The Divisional Court agreed to hear the Municipality’s appeal on the basis the issues raised were of significant public importance. It ultimately agreed with our clients’ position that the recent evolution of policy and jurisprudence precluded the ERT from consider “fault” and consequently the principle of “polluters pays” did not apply. The ruling affects the potential liability of property owners under the EPA to cover the costs of remediating environmental spills and losses originating from their property. In light of the impact of the ruling on the handling of environmental losses under the EPA leave to appeal to the Court of Appeal has been granted and the appeal will be heard sometime in the fall 2013.
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We secured a dismissal of an action against their client following a 4-week jury trial. The case involved a rear-end collision whereby the firm’s client, the defendant, was operating a concrete mixer that rear-ended the plaintiff’s vehicle. The plaintiff brought an action alleging that he had sustained various personal injuries including a torn rotator cuff and chronic pain. We sought general damages for pain and suffering as well as damages for loss of income and care costs. The threshold motion was granted. Although Justice Moore accepted the rotator cuff injury and the surgeries resulted from the accident he did not accept the plaintiff’s evidence of resulting functional limitations in part due to the fact that his evidence was contradicted by other witnesses’ evidence and video surveillance.
The jury returned with a verdict absolving the client of any liability. Although he was operating a concrete mixer that rear-ended the plaintiff’s vehicle, the jury held that in light of the prevailing weather conditions the accident was not caused by the defendant’s negligence. The action, including the award for loss of income, was dismissed in its entirety with costs.
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We successfully defended a motion for summary judgment brought by a defending insurer in his client’s recovery action. Our client had secured judgment in a subrogated action. The defendant’s insurer denied coverage on the basis that the defendant was not an “insured” under its policy. It maintained its denial of coverage after judgment was secured. As a result, our client commenced an action under s. 132 of the Insurance Act seeking recovery of its unpaid judgment. The defending insurer brought a motion for summary judgment seeking a dismissal of the claim against it. The motion was one of the first motions argued after the release of the Court of Appeal’s landmark decision in Combined Air Mechanical Services Inc. v. Flesch, [2011] O.J. No. 5431 (ONCA.). Applying the full appreciation test set out in Combined Air Mechanical Services Inc. v. Flesch, [2011] O.J. No. 5431 (ONCA.) the Justice Lack correctly held she could not have a full and accurate appreciation of the evidence needed to make the required dispositive findings and therefore summary judgment could not be granted.