In the Superior Court matter of Cormack-Terrelonge v. Fahmy Estate , the plaintiff was involved in a motor vehicle accident. At examinations for discovery, the plaintiff testified that she had been involved in three motor vehicle accidents prior to the subject accident. The plaintiff testified that she had sustained injuries in all three preceding accidents and had commenced litigation in relation to each accident.
The defendant requested the transcripts from the prior examinations for discovery. However, the plaintiff refused the request. The defendant argued that the transcripts were necessary to assess the extent to which the plaintiff’s current complaints overlap with her injury complaints prior to the subject accident. It was noted that there was no credible evidence to suggest that the injuries sustained in the prior accidents had resolved before the subject accident.
Justice Sosna agreed that although the prior transcripts were captured by the deemed undertaking rule set out at Rule 30.1.01(3), the exception to the undertaking rule applied in this case as the interest of justice outweighed any prejudice that would result to a party who disclosed the evidence. Justice Sosna concluded that the production of relevant and necessary documents was required to ensure that the case was ultimately and fairly adjudicated at trial.
In the matter of Papamichalopoulos v. Greenwood 2018 ONSC, the defendant brought a motion seeking the production of the plaintiff’s private Facebook pictures. The plaintiff had alleged in his Statement of Claim that he had suffered permanent injuries in the accident. The plaintiff had also alleged that his ability to participate in all activities had been impaired.
Master Abrams noted that the plaintiff had posted pictures on his public Facebook account, post-accident, which depicted him engaging in physical activities without any visible signs of discomfort. The pictures posted included pictures of the plaintiff jet-skiing, bending over at pronounced angles while lifting his wife, driving, and lifting his young son. Master Abrams indicated that these pictures are relevant and open up inquiry as to the severity of the injuries sustained by the plaintiff. Master Abrams cited Justice D. M. Brown’s reasoning in Leduc v. Roman 2009 ONSC. Justice D. M. Brown indicated that it is reasonable to infer from the presence of content on the party’s public profile that similar content likely exists on the private profile.
In Debruge v. Arnold , the plaintiff appealed the decision of the trial judge on the defendant’s threshold motion. One of the grounds of appeal was whether the trial judge erred by granting the defendant’s threshold motion after receiving a jury verdict which implicitly concluded that the plaintiff’s injuries and claims exceeded the threshold. This appeal was dismissed on the basis that a jury’s verdict is only one factor that the trial judge may consider, but is not bound to consider, in coming to his or her ultimate conclusion regarding the threshold motion.
The defendant brought a cross-appeal on the issue of whether the trial judge erred by excluding the decision on the threshold motion from the costs analysis. The cross-appeal was granted, based on the reasoning of the Divisional Court in Saleh v. Nebel, in which the decision on the threshold motion should be taken into account when considering the issue of costs of the trial.
A new motion decision of Justice Firestone could have wide ranging ramifications in terms of the timing of when mediations are typically scheduled.
In Thomson v. Portelance et al., in an effort to be in a position to set their action down for trial early, the Plaintiffs sought to schedule a mediation, pursuant to s. 258.6(1) of the Insurance Act, prior to completion of discoveries. The Defendants resisted this request.
Section 258.6(1) of the Act is a “lesser known” provision providing for mandatory mediation in automobile cases, which states as follows: A person making a claim for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile and an insurer that is defending an action in respect to the claim on behalf of an insured or that receives a notice under clause 258.3(1)(b) in respect of the claim shall, on the request of either of them, participate in the mediation of the claim in accordance with the procedures prescribed by the regulations.
Justice Firestone held that, once a party requests that a mediation be scheduled under s. 258.6(1), the other party cannot delay the scheduling of the mediation until the completion of a specific event in the litigation process, such as discoveries. Once the Plaintiffs requested the scheduling of the mediation, the Defendants had a positive obligation to appoint, schedule, and conduct such mediation within the timeframes and procedures set forth in s. 258.6(1) of the Act and s. 3 of O. Reg. 461/96.
How successful a “pre-discovery” mediation might be, in the likely absence of a lot of information that normally becomes available through the discovery process is, of course, an entirely different issue not addressed by this decision.
In the Superior Court of Justice matter of Jones v. I.F. Propco Holdings (Ontario) 31 Ltd., the defendant sought an order for production of the plaintiff’s private profile information including profile posts and comments.
The action arose out of an alleged incident in which the plaintiff claims that she was hit in the head by ice that fell from the defendant’s property. The plaintiff was seeking general and special damages arising from the injuries sustained in the incident.
The defendant’s position was that relevant conduct pertaining to the plaintiff’s social, family, leisure, and volunteer activities revealed on the public portion of her Facebook leads to an inference that there is relevant information on the private portion of her Facebook profile.
Justice Leitch cited the case of Knox v. Applebaum and indicated that “There must be evidence that posted photographs are relevant in order to justify an order for production.” Justice Leitch stated that relevant information on the public portion of a Facebook profile does support the inference that relevant information is contained on the private portion of the profile.
Justice Leitch concluded that there was no evidence that the public posts are relevant because the activities depicted in the photographs are not relevant to the extent of the plaintiff’s physical limitations since the incident. Therefore, because the information on the public portion was not relevant, there is no inference that the information on the private portion would be relevant. Since there was no inference that it was relevant, Justice Leitch did not assess the privacy interests of the plaintiff against any probative value obtained from the disclosure of the private portion of the plaintiff’s profile.
In Melo v. Northbridge Personal Insurance Corporation, Justice Croll, writing for The Divisional Court, confirmed that pursuant to s. 11(6) of the License Appeal Tribunal Act, an appeal from a decision of the Tribunal relating to a matter under the Insurance Act, R.S.O. 1990, c. I.8 may be made on a question of law only. Justice Croll further indicated that the standard of review to be applied is reasonableness.
The Appellant was involved in a motor vehicle accident on August 28, 2015. He applied for statutory accident benefits from his own insurance company, Northbridge Personal Insurance Corporation. The Adjudicator found that the Appellant was not entitled to income replacement benefits in the amount of $389.11 per week from January 28, 2016 to the date of his decision.
Justice Croll indicated that the Adjudicator cited the correct legal test to prove entitlement to an income replacement benefit, and correctly identified and conducted the comparative exercise that section 5(1) of the Schedule requires. The Adjudicator weighed the evidence, applied the proper stand of proof, and provided reasons for his findings, which were all ground in the material before him. Justice Croll indicated that the Adjudicator’s exercise of weighing the evidence and preferring some evidence over other evidence does not amount to a question of law only. Justice Croll stated that the Appellant failed to establish an error of law and that the Adjudicator’s decision was reasonable as it was within the range of possible outcomes.
See : Melo v. Northbridge Personal Insurance Corporation , 2017 ONSC 5885 (CanLII)[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]
FSCO Director’s Delegate Evans has upheld an arbitration decision that has found that a treatment and assessment plan is not payable despite a Section 38 deficiency if the OCF-18 is not warranted.
In Sadozai v. State Farm Mutual Automobile Insurance Company, Mr. Sadozai appealed the denial of an in-home assessment by Arbitrator Musson. Counsel for Mr. Sadozai argued that since State Farm had failed to provide a denial within ten business days of receipt of the OCF-18, it should be automatically payable. Arbitrator Musson had indicated that the onus is on the claimant to prove that the medical benefits and costs of examinations in dispute are necessary, which Mr. Sadozai failed to do.
Director’s Delegate Evans agreed with Arbitrator Musson, citing the analysis of Arbitrator Wilson in Ying Al Chen and State Farm Mutual Automobile Insurance Company, May 30, 2016. Arbitrator Wilson noted, the SABS is not a lottery for treatment providers where the prize is the deemed approval of a meritless treatment plan. Further, the precondition is that the claimed expenses be “reasonable and necessary” before an insured can claim indemnity from an insurer.
This decision reinforces the importance of considering the merit of each treatment and assessment plan disputed, despite a Section 38 deficiency.[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]