APPEALS IN THE PERSONAL INJURY CONTEXT

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1 at The Middlesex Law Association's Presented Annual Personal Injury Conference Sixth by: Andrew C. Murray Submitted LLP Lerners & Solicitors Barristers Box 2335 PO APPEALS IN THE PERSONAL INJURY CONTEXT December 5, 2012 London ON N6A 4G4 Phone:

2 in Arbitration Context 10 Appeals of Review 11 Standard Alone Trial 11 Judge Trial 12 Jury 24 Bibliography "A" Statutes Tab A Schedule INDE X Overview 1 The Starting Point- Courts of Justice Act 1 Ru/es of Civil Procedure 3 A Brief Word About Costs 8 Tort Action Non-Jury 9 Accident Benefit Appeals 10 Judicial Review of a FSCO Decision 13 Standard of Review Chart 13 Practice Points Jury Trial Appeals 14 Recent Personal Injury Appeal Decisions Illustrating Points 15 Martin v. Fleming 15 Zurek v. Ferris 16 Parris v. Laidley 16 Edwardson v. Hamilton (St. Joseph's Hospital) 17 Duchesne v. St. Denis 18 Pastore v. Aviva Canada Inc 18 Hamman v. Usher 20 Hurst v. Aviva Insurance Company 21 Notice of Appeal- Form 1 Tab B

3 The practice of personal injury law, although part of civil litigation in general, has become a very practices are restricted to defence of personal injury lawsuits. Increasingly, plaintiff lawyers dedicate ir practices exclusively to plaintiff personal injury litigation. The specialization of bar and practice of personal injury law extends equally to appeals which might flow from a personal injury case. While appeal process is generic in a sense, applying to all forms of civil litigation, re are specific issues more common to appeals that arise in personal injury 1. Review appeals in tort actions, both with and without juries; 2. Review appeals that arise within context of claims for statutory accident benefits; Briefly address issue of appeals from costs awards, as costs are sometimes tail 4. In passing, mention appeal issues unique to personal injury landscape. Part VII of Courts of Justice Act ("CJA") deals with court proceedings. Sections 132, 133, and 134 specifically address appeals. Section 132 is not controversial; it provides that a judge shall not sit as a member of a court Section 134 broadly describes various powers that may be exercised on appeal: OVERVIEW specialized area of practice. Defendants are represented almost exclusively by lawyers whose context. To that end, this paper intends to: that wags dog; and THE STARTING POINT- COURTS OF JUSTICE ACT hearing an appeal from his or her own decision. Courts of Justice Act, R.S.O. 1990, c.c.43, as amended

4 ability to make any Order or decision that ought to or could have been made by court or tribunal appealed from; ordering a newtrial; quashing of appeal; draw inferences of fact from evidence; receive furr evidence on appeal; direct a reference or trial of an issue. a final order of a judge of Superior Court of Justice, except an order Divisional Court under anor Act; of court. R.S.O. 1990, c. C.43, s. 6 (1); 1994, c. 12, s. 1; 1996, c. 25, s. 9 (17). -2- It is also important to remember that jurisdiction of appeal courts is established in CJA. With respect to jurisdiction of Court of Appeal, Section 6 provides, in part, as follows: 6.(1) An appeal lies to Court of Appeal from, (a) an order of Divisional Court, on a question that is not a question of fact alone, with leave of Court of Appeal as provided in rules of court; referred to in clause 19 (1) (a) or an order from which an appeal lies to (c) a certificate of assessment of costs issued in a proceeding in Court of Appeal, on an issue in respect of which an objection was served under rules Part of CJA deals with Court of Appeal in general and should be consulted, as may be necessa.

5 Part II of CJA deals with Court of Ontario, including Divisional Court. Section 19(1) Court from, subsections (1.1) and (1.2); s. 3. heard in region where decision appealed from took place (unless parties agree orwise or Chief Justice of Superior Court orders orwise). Appeals involve a tango between CJA and Rules of Civil Procedure where each takes a arranged to be argued at a local courthouse, heard by single judge of Court of Appeal in Toronto, with parties hooked in via a video link. -3- maps out jurisdiction of Divisional Court, providing that an appeal lies to Divisional (a) a final order of a judge of Superior Court of Justice, as described in an interlocutory order of a judge of Superior Court of Justice, with leave as provided in rules of court; (c) a final order of a master or case management master. 2006, c. 21, Sched. A, For appeals filed on or after October 1, 2007, jurisdiction of Divisional Court referred to in Section 19(1)(a) of CJA relates to a final Order of not more than $50,000.00, exclusive of costs. We all know that Court of Appeal is located in Toronto, and that any case to be argued at Court of Appeal will be argued in Toronto. 2 Section 20 of CJA provides that, for appeals to Divisional Court, such an appeal shall be RULES OF CIVIL PROCEDURE turn in leading during appeal dance. The CJA tells you where you should appeal Rules 2 Although am mindful that, with advent of technology, Court of Appeal has grown more sophisticated and such things as leave to appeal motions can be

6 or Divisional Court, and is Rule 62 deals with appeals from an interlocutory Order. Certainly, in personal injury actions, interlocutory Orders arise and do get appealed. It is imperative to understand separate It is beyond scope of this paper to deal with issue of interlocutory versus final Orders, as decisions on motion relating to amendment of pleadings; decisions on motion relating to production of documents; disputes relating to scope of Discovery; medical examinations; inspection and/or preservation of property; undertakings and refusals; and production from third parties, particularly Crown and police entities. In our jurisdiction, where we no longer have a sitting Master, those motions are all heard at first instance by a judge of Superior Court of Justice. As stated earlier, when appealing an -4- gives procedural direction. Rule 61 deals with procedure on appeals to Court of Appeal based on an appeal from a final Order. appeal routes that apply to final Orders versus interlocutory Orders. that topic merits an entire paper on its own, or than to say that it is important that you get that analysis right. Interlocutory appeals, commonly seen in personal injury context, would include: interlocutory Order of a judge of Superior Court of Justice, leave is required as provided by Rules of Civil Procedure.

7 a flowchart. have reproduced procedural appeal summary from my own 2013 Carswell pending appeal. The Stay rule is that re is an general stay of any order for automatic payment of money, except support order, upon delivery a notice of appeal: rule of There is no automatic for orders granting non- stay a notice of appeal because be delivered until leave cannot appeal is granted. to if desired, and no Therefore, stay is available, automatic for a stay under rule move leave to appeal, if Seek (a) by motion to a required to appeal to Court of leave shall be made in Appeal be as early as time Can making of order to of notice of motion within Serve days after date of order 7 to be appealed: rule sought and see also rules 62.02, days after making of 15 order or decision sought file with proof of service and 5 days after service. within -5- The appeal route is difficult and confusing enough that most civil practice compendiums include Ontario Civil Practice. SUMMARY OF PROCEDURE ON AN APPEAL TO AN APPELLATE COURT (Appeals to Court of Appeal for Ontario or to Divisional Court) Who Does It What To Do When Appellant be appealed: see rule relief. Moreover, monetary leave to appeal is where re will be no required automatic stay immediate Appellant judge: rule by motion to appellate rule Motions for court: and 37.08(1) (6) notice of motion within Serve writing: rule be appealed, unless a to provides orwise, statute

8 Court reporter of evidence (Form certificate rule C): notice of appeal with File of service: rule proof of evidence certificate 61D): rule 61.05(2) (Form an agreement as to Make and evidence: documents rule 61.05(4). notice of cross- Serve (Form 61E), if cross- appeal cross-appeal with proof of of rule service: for security for costs Move appeal if appropriate: rule of proof of ordering File of evidence: rule transcript written notice to Give and registrar when parties transcribed: rule evidence 61.05(7) 30 days after Within of order appealed making unless a statute or from provide orwise (rule Rules or within 7 days of 61.04(1)) granting of leave to a divorce action a notice of In must be filed within appeal days of date of 30 Divorce Act judgment: 10 days after it is Within rule 61.04(4) served: 15 days after service Within appellant's certificate. of 30 days after service Within notice of appeal. of within 15 days after Serve of notice of appeal service file within 10 days after and service. at least 7 days' notice to On appellant: rules 61.16(1) and 37.07(6). 30 days after filing Within of appeal. notice -6- Serve notice of appeal Appellant 61A) and appellant's (Form where leave required: appeal 61.03(6) and 62.02(8). rules (Canada), s. 21. Appellant 61.04(4). Serve respondent's Respondent or Respondent appealing, and n file notice Respondent Appellant 61.05(5). Forthwith.

9 appeal by (a) if Perfect ordered causing record so original exhibits to be and to registrar, forwarded appeal book, service exhibit compendium, written, and if book, electronic copy of available, transcript of evidence and appellant's factum (an copy of factum electronic be filed but not served), must of listing for hearing Notice 61G) is to be mailed (Form appeal has been after on list of cases to placed be heard: rule 61.09(5) appellant does not file that necessary proof have been ordered transcripts fails to perfect appeal: or rule 61.13(1). factum is to Respondent's served and filed with proof be service and is to include a of as appellant by cross- factum if re is a cross- appeal rule appeal: factum as Deliver to cross- respondent no transcript is required, If 30 days of filing notice within appeal; if a transcript is of within 60 days after required, notice that receiving has been evidence transcribed: rule 61.09(1). When appealperfeed. 10 days' notice to On appellant. 60 days after service Within appeal book, transcript of evidence and appellant's of factum. 10 days after service Within respondent's factum: of rule 61.12(4). -7- Appellant serving and filing with proof of filing with registrar a (c) of perfection: rule certificate Registrar Respondent Move to dismiss for delay if Respondent Appellant if re is a cross- appeal, rule 61.12(4). appeal: SUMMARY OF PROCEDURE ON AN APPEAL FROM AN INTERLOCUTORY ORDER (The following is procedure on an appeal to a judge of Superior Court of Justice provided in rule As to what appeals are covered by that rule, see rule 62.01(1).)

10 notice of appeal Serve 62A): rule 62.01(2). (Form at place where office is to be heard: rule appeal Re place of hearing, 62.01(5). rule (6). see appeal record and Serve and file it, with proof factum service, in court office of place where appeal at is to be heard: rule (7). any furr material Serve factum and file, with and of service, in court proof at place where office is to be heard: rule appeal 62.01(8). 7 days after Within of order or making appealed from: certificate (2). rule later than 7 days before Not hearing date: rule hearing date: rule 62.01(7). and file factum and Serve furr materials at least any days before hearing: (8) and (8.1). Rule -8- Who Does It What To Do When Appellant Appellant File notice of appeal in court 62.01(5). Not later than 7 Appellant days before Respondent A BRIEF WORD ABOUT COSTS Where only issue on appeal relates to costs that were awarded that were in discretion of court, be mindful that s.133 of CJA mandates that leave to appeal is required. There is no appeal, as a right, when only issue is costs. Section 133 provides that leave to appeal is required from any Order that was made with consent of parties, or where only issue on appeal relates to costs that were in discretion of court.

11 tried without a jury. Several of non-jury cases apply directly to personal injury litigation, relief against a municipality; declaratory relief (such as may arise in an LTD or accident benefit context); and/or or equitable relief (which again might arise in a first-party benefit dispute). The determination of facts and assessment of law can In contrast, jury trials yield answers to questions that were put to jury, but no transparent comes to appeals from a jury verdict, as opposed to a judicial decision. -9- The case law dealing with s.133 of CJA confirms that leave to appeal a costs Order is granted sparingly and only where re are strong grounds that lower court erred with its award of costs. 3 TORT ACTION NON-JURY Section 108 of Courts of Justice Act singles out 12 specific types of cases which must be being: A trial determined by a judge sitting without a jury yields a written decision which can n be subject matter of an appeal. be transparently reviewed by an appeal court. This does have an impact on capacity and willingness of an appeal court to grant an appeal. written decision outlining how those questions came to be answered. There are clear implications resulting in a distinction between how cases are viewed by an appeal court, when it 3 McNaughton Automotive Ltd. v. Co-Operators General Insurance Company 2008 ONCA 597; Axelrod v. Beth Jacob of Kitchener, [1943] OWN 80

12 Accident benefits are claimed and received in law of contract, albeit a contract created by claimant's sole option, dispute may be advanced by way of arbitration at FSCO, or by different implications on appeal ACCIDENT BENEFIT APPEALS statute and regulation governing mandatory auto insurance system that applies to all Ontario motorists. As a first step, a claimant must file an application for mediation with Financial Services Commission of Ontario ("FSCO"). If mediation fails to result in a resolution of dispute, at way of litigation in Superior Court of Justice. Disputes which proceed through FSCO create Appeals in Arbitration Context FSCO has its own Dispute Resolution Practice Code ("DRPC"), somewhat like its own version of a combined Courts of Justice Act and Rules of Civil Procedure. Section 50 of DRPC provides for any party to an arbitration to appeal Order of an arbitrator to Director of Arbitrations (or as often case to Director's Delegate). Appeals to Director must be in prescribed form as outlined in DRPC. Like civil appeals, Notice of Appeal must be filed within 30 days of date of arbitration Order. 4 Attached at Tab B is Form Notice of Appeal that applies to appeals from a FSCO arbitration, along with Guide published by FSCO that accompanies Notice of Appeal form. Following Order of Director or Director's Delegate, appropriate next stage in appeal process is not actually an appeal, but rar an Application for Judicial Review of 4 See Section 52 of Dispute Resolution Practice Code.

13 issue in appeal and nature of decision from which appeal is made. This has long continues to apply. On questions of law alone, standard is correctness, ie. was judge below right or was judge below wrong with legal interpretation? even questions of mixed fact and law, standard of review is more onerous, requiring as initial trier of fact to assess and determine those factual matters. The kinds of errors that constitute palpable and overriding errors include following: Failure to consider relevant evidence. The misapprehension of relevant evidence. The consideration of evidence that is irrelevant. -11 decision of Director or Director's Delegate made to Divisional Court. From Divisional Court, matter would n proceed to Ontario Court of Appeal. 5 STANDARD OF REVIEW There are competing standards of review applied to appeals, depending on nature of remained one of thornier aspects of doing appellate work. Judge Alone Trial In a judge alone case, seminal Supreme Court of Canada decision in Housen v. Nikolaisen 6 On findings of fact by a trial judge, but also including inferences drawn from those facts, and appellant to demonstrate a palpable and overriding error. Simply put, judge is entitled to deference, indeed a high degree of deference, as appeal court is not in as good a position 5 See seminal decision in G.P.v. Pilot Insurance Company, 2008 CanLII, 2602, as an example of this appeal route, stemming from an appeal of a FSCO arbitral decision 6 Housen v. Nikolaisen, supra

14 available in a transcript form reduced to writing. Of course, a judge's charge does not exist in a non-jury case; rar, one is left with sufficiency of judge's own reasons. A jury verdict will not be set aside as against weight of evidence unless it is so plainly Accordingly, test of reasonableness in civil context asks wher jury's verdict is so appreciate evidence and acted in violation of its duty. In cases where re is some On issue of non-pecuniary general damages, Court of Appeal has given some guidance in terms of a general rule of thumb, if non-pecuniary general damage award is too high or too low by 50% or more, court may well conclude that damages are inordinately high or McCannell v. McLean, 1937 CanLII SCC [1937] SCR 341 (which has been affirmed over and over again by multiple courts ever after) 8 Howes v. Crosby (1984), 45 O.R. (2nd) 449; also see Fidler v. Chiavetti (2010), 317 D.LR. (4th) 385 (ONCA) finding that has no basis on evidence. finding based on an inference that is really more speculative than legitimate inference. 7 Jury Trial Appeals in jury context often tend to focus on judge's charge to jury, which is unreasonable and unjust as to satisfy court that no jury reviewing evidence as a whole and acting judicially could have reached it. 8 unwarranted by evidence as to justify conclusion of appeal court that jury did not evidence to support jury's verdict, high deference will be accorded to jury's verdict, such that it will not be set aside, even if contrary conclusion was also available on evidence. low and n vary those damages. 9 7 Peart Peel Regional Police Services Board (2006), 217 OAC 269 (CA) 158

15 Judicial Review of a from Director or Director's Delegate. The 2008 Supreme Court of Canada case Dunsmuir v. New Brunswick 1 clarified this area of law by establishing: Palpable and overriding error -13- FSCO Decision The standard of review changes completely when dealing with a judicial review of a decision (a) On questions of law, standard of review is correctness; On questions of mixed law and fact, standard of review is reasonableness. Note that "reasonableness" is a deferential standard which acknowledges that FSCO, like or administrative tribunals from which judicial review may be sought, is a specialized body, possessing specialized knowledge and experience. A judicial review application is not same thing as an appeal, because role of court is simply to look at decision of tribunal, not to conduct a trial or inquiry into truth of facts that were presented in original arbitral decision. STANDARD OF REVIEW CHART Issue Standard of review Question of law Correctness Question of fact factand law Correctness Mixed palpable and overriding, depending on,-, to which chief error is factual or legal extent Judicial review from FSCO Legal analysis correctness Mixed fact and law reasonableness 10 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] SCR 190

16 absence of an objection at trial, in most instances, an alleged misdirection or non- direction will not result in a new trial in a civil case, unless appellant can show that a substantial wrong or miscarriage of justice has occurred. 12 The absence of objection sometimes relate to jury questions mselves. Typically, before closing outset of trial rar than as an afterthought, but that is an issue for anor paper.) In order to appeal a jury's award of damages, in absence of some error in charge to jury, " jury's assessment must be so inordinately high or low as to constitute a wholly erroneous assessment". Jury awards attract significant deference. It is very eir too high or too low, and outside of generally expected range, it was not so -14- PRACTICE POINTS JURY TRIAL APPEALS While failure of counsel to object to a judge's charge to jury is not always fatal in a civil jury charge, "an appellate court is entitled to give it considerable weight". 11 In suggests that an issue was not seen as central to jury's deliberations. In addition to complaints about charge to jury, appeals in jury cases can also submissions are made, parties meet with trial judge to formulate questions to be put to jury. (Preferably, in my view, issue of jury questions is dealt with at common to see appeal court indicate that, while an award of general damages was plainly unreasonable or unjust so as to satisfy court that no jury reviewing evidence as a whole, and acting judicially, could have reached that decision. Unless jury award is truly exceptional, being clearly too low or clearly too high, be cautious advancing an appeal from a jury award that simply complains about quantum of damages awarded. Only where jury award is exceptional, will it warrant appellant intervention.

17 (a) wher or not jury should have been instructed about cap on non- on appeal. 14 Martin v. Fleming, which finally answered, after 16 years of debate, question of wher a appeal was dismissed with costs fixed in total amount of $15,000.00, allocated equally as between three responding parties. See Gutbir University Health Network, 2012 ONCA 66 and McCannell v. McLean, 1937 CanLII (SCC) 13 See Housen Nikolaisen, 2002 SCC 33 and Waxman Waxman, (2004) 186 OAC Or appeals that may occur in jury context include: pecuniary general damages; wher jury was inflamed by prejudicial evidence that was tendered; and (c) should jury have been struck by trial judge? 13 Note that a factual finding grounded on credibility is a particularly difficult issue to disturb RECENT PERSONAL INJURY APPEAL DECISIONS ILLUSTRATING THE POINTS Martin v. Fleming 15 On October 29, 2010, Ontario Court of Appeal heard and released orally its decision in plaintiff is subject to one deductible when involved in multiple accidents, or individual deductibles for each accident. This was a purely legal question and indeed came to Court of Appeal following a Rule 21 motion for determination of a point of law. The motion judge's decision was upheld, and 11 Marshall v. Watson Wyatt & Company, 2002 CanLII, ONCA 12 Vokes Estate v. Palmer, 2012 ONCA 510, at para. 7 and Rizzi Mavros, [2008] OJ No. 935, at para Martin Fleming (2012) ONCA 750

18 The appeal was dismissed with costs in amount of $15, Zurek v. Ferris 1 Heard and released on October 3, 2012 was decision in Zurek v. Ferris, which was appeal of a jury's assessment of damages, defendant having admitted liability at trial for injuries. The appellant sought to set aside jury's verdict and sought an order for a new trial. The issue on appeal was wher trial judge's charge to jury deprived Ms. Zurek of a fair trial. This argument needed to fit within language of s. 134(6) of Courts of Justice Act. While acknowledging that charge to jury was "unorthodox", and that some of trial judges' comments were unnecessary and not germane to issues before jury, Court of Appeal was still satisfied that charge, when read as a whole, was fair. The Court of Appeal specifically noted fact that few objections to charge were raised at trial, which it said "supports our conclusion that charge as a whole was fair". Parris v. Laidley 7 The case was heard and decision also released on October 31, The court was asked to consider wher motions judge below appropriately granted summary judgment on issue of implied consent in a medical negligence case. Essential to motion judge's decision was that defendant had not rebutted presumption of consent. He drew an adverse inference because he failed to make any real effort to make his son's evidence available. 16 Zurek v. Fems (2012) ONCA Parris v. Laidley (2012) ONCA 755, CanLII

19 account all relevant evidence in determining that conditions precedent to drawing defendant's evidence that supported his position that his son had no consent, express or The appellant was successful, with costs fixed in amount of $6, $400, The plaintiff had suffered a stroke following a cervical rhizotomy performed by an The appeal proceeded on four grounds two relating to liability and two relating to damages. plaintiff would not have consented to rhizotomy if she had been properly informed of The damage appeal arguments contended that assessment of general damages was too were also rejected. The appeal was dismissed with costs fixed in amount of $20, The Court of Appeal indicated that drawing adverse inferences from failure to produce evidence is discretionary. The inference should not be drawn unless it is warranted in all circumstances. A case-specific inquiry is required. The motion's judge failed to take into adverse inference had been met. Specifically, he made no findings concerning credibility of implied, to drive automobile. Edwardson v. Hamilton (St. Joseph's Hospital) 18 This appeal was argued September 28, 2012 and decision released October 26, The defendant doctor in a medical negligence case appealed an award of damages in excess of anaestist. The liability arguments dealt with informed consent and conclusion by trial judge that potential benefits and risks. The liability arguments were rejected by Court of Appeal. high and that assessment of future economic losses was speculative. Those submissions 18 Edwardson v. Hamilton (St. Joseph's Hospital) (2012) ONCA 719

20 when looking at discoverability. The appellant was successful on this particular appeal, being granted leave to serve and file a fresh Statement of Claim adding Third Party as a Court of Appeal appeals. This case is an important one to entire personal injury and insurance law bar, and to every Ontario motorists carry automobile insurance under a policy. Automobile accident victims are entitled to certain no-fault benefits, also known as Individuals with most serious of injuries are -18- Duchesne v. St. Denis 19 This appeal was argued September 4, 2012 and decision was released October 17, The issue on appeal was Limitations Act, 2002, which came into force on January 1, The overall question was wher minor appellant's claim was discovered or discoverable by a reasonable person, within his abilities and in his circumstances, prior to January 1, As an aside, this is a helpful review of Limitations Act and principles to be considered defendant. Costs to plaintiff were awarded throughout in amount of $15,000.00, relative to motions below, and in excess of $56, with respect to Divisional Court and Pastore v. Aviva Canada Inc. 2 Ontarian; it applies to anyone injured in an automobile accident, wher as a pedestrian, passenger, or driver. The case was argued January 19, 2012 and unanimous written decision was released September 27, mandatory private auto insurance regime, in which certain no-fault benefits are provided under a standard government pre-approved auto "statutory accident benefits," regardless of fault. eligible to receive an enhanced level of accident benefits. The term used in Statutory Accident Benefits Schedule ("SABS") to distinguish those who are eligible for enhanced 19 Duchesne v. St. Denis (2012) ONCA 699

21 clarified one of several tests that define who suffers a While re are several different ways that one can be found to suffer from a catastrophic Medical Association's Guides to Evaluation of Permanent Impairment, 4 th Edition, as 1. Activities of daily living; 2. Social functioning; 4. Deterioration or decompensation in work or work-like settings. assessment of "marked impairment" or "extreme impairment" in all four of categories described above, or wher a marked/extreme impairment in a single category alone was with Guides' approach to catastrophic impairment benefits, from or accident victims, is "catastrophic impairment". In Pastore, Feldman J.A. "catastrophic impairment". impairment, Pastore deals with test applicable for "mental or behavioural disorders". Ms. Pastore was a pedestrian who was hit by a car while crossing street. An assessment of her accident-related mental or behavioural disorders was carried out by reference to American mandated by SABS. The Guides direct assessment of functioning in four categories of functional limitation: 3. Concentration, persistence, and pace; and Ms. Pastore's initial application for a catastrophic impairment designation was denied by Aviva Canada. The dispute was heard before an arbitrator of Financial Services Commission of Ontario. Her application was accepted by arbitrator. One of issues raised by Aviva Canada at arbitration was wher test required an overall sufficient. The arbitrator was satisfied that one marked impairment alone was enough to comply 20 Pastore v. Aviva Canada Inc. (2012) ONCA 642

22 determined that it was a reasonable initial decision to find that a single category of impairment 20- On appeal, Court of Appeal addressed appropriate standard of review. Following decision of Supreme Court in Dunsmuir v. New Brunswick, court noted that Financial Services Commission of Ontario, as a specialised tribunal, must be accorded deference. As such, correct standard of review was reasonableness standard. The Court of Appeal that was eir marked or extreme was sufficient to meet test for catastrophic impairment. Ms. Pastore was, consequently, found to be catastrophically impaired. The Court of Appeal has affirmed specialized knowledge of arbitrators at Financial Services Commission of Ontario, need for a broad, liberal, and inclusive approach when determining access to SABS, and clarified previous test for assessing those suffering from mental and behavioural disorders. This decision lends clarity to a long-debated area of personal injury law. Hamman v. Usher 2 The central basis of appellant's appeal in this medical negligence case was that trial judge had made palpable and overriding errors in her findings of fact by misapprehending cogent evidence and failing to consider or reconcile or material evidence. The appellant contended that se failings of trial judge undermined her key finding that cause of bleeding was IUD and not a laceration or perforation resulting from respondent's negligence on July 19, The Court of Appeal did not agree with appellant's position. Accepting that some of evidence may have supported appellant's ory of case, re was ample or evidence to support trial judge's findings. She gave thorough and thoughtful reasons for 21 Hamman Usher(2012) ONCA 818

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