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Bogoroch & Associates

J.C. Heywood
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Reported Decisions

The following is a sampling of successful cases and decisions in which Bogoroch & Associates principals appeared as counsel or co-counsel.



Lambert et al. v. Brown et al., 2013
June, 07 2013

Shereen Rai of Bogoroch & Associates LLP successfully represented the Plaintiffs at trial, in a case involving damages related to injuries sustained in a vicious dog attack on the minor Plaintiff, Micaela Lambert, who at the time of the attack was 2 years old. 


JUDGMENT
 
1. This is an undefended action. The defendants, Walter Brown and Charlene Brown, were noted in default on August 12, 2010. The action as againt the defendant, Philip Birnbaum, as well as the crossclaim of Philip Birnbaum, as against the defendants, Walter Brown and Charlene Brown, were dismissed without costs pursuant to the Order of Stinson J. dated December 16, 2011.
 
2. The action is brought on behalf of Micaela Lambert, by her Litigation Guardian and mother, Alison Chisholm and by Alison Chisholm and Aaron Lambert, Micaela's father, in their personal capacities. The action involves personal injuries sustained by Micaela, who is now 10 years of age, when she was bitten by a dog at the age oft wo and sustained significant injuries to the face and scalp. Her parents further bring this action in their personal capacities for damages pursuant to the Family Law Act R.S.O 1990 c.F.3 ("FLA") as amended for loss of companionship normally provided by Micaela. There is no claim for special damages.
 
3. As noted, the defendants, Charlene and Walter Brown, failed to deliver a Statement of Defence and were noted in default. Accordingly, they are deemed pursuant to the Rules of Civil Procedure "the Rules", to have admitted the truth of the allegations of fact contained in the Statement of Claim, including the allegation that they are jointly and severally liable for the damages resulting from the attack of the dog.

 

For the full decision, click to download:

Lambert et al. v. Brown et al.

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McCormick v. Tsai, 2011 ONSC 2057 (CanLII)
March, 31 2011

Bogoroch & Associates LLP represented the plaintiffs in a medical malpractice case related to the death of a 10-year-old girl, winning an important motion on adding parties to the case.


 

Superior Court of Justice - Ontario

Re: McCORMICK et al, Moving Parties, Plaintiffs
AND:
TSAI et al, Responding Parties, Defendants
Before: MASTER RONNA M. BROTT
Counsel: Bogoroch & Associates LLP, for the Plaintiffs
Matthew Sammon and Jaan E. Lilles, for the Defendants

 

ENDORSMENT

  1. This is a motion by the plaintiffs seeking leave to amend the Statement of Claim to properly name the defendants Dr. Martha McKinney and Dr. Basem Al-Saati. Alternatively the plaintiffs seek to add Dr. Martha McKinney and Dr. Basem Al-Saati as party defendants

    .
  2. This action arises out of the death of Sydney McCormick ("Sydney") who was the child and grand-child of the plaintiffs. Sydney was born on March 28, 1996. On March 12, 2006 she was admitted to the Emergency Department of Kingston General Hospital ("The Hospital"). Sydney passed away on March 17, 2006. Between March 12, 2006 and March 17, 2006 Sydney received care and treatment from a number of physicians and nurses.
     
  3. A Paediatric Death Review was conducted between October 2006 and January 2007. It summarized the facts of the case but does not refer to any physicians by name. In its findings, the Committee requested it be provided with the Kingston General Hospital Internal Review, but the Hospital refused its request.
     
  4. Counsel for the plaintiffs received the Hospital's medical records in respect of Sydney's hospitalization in or about February 2007. The Statement of Claim was issued on August 20, 2007. It names Dr. Ellen Tsai, Dr. Michelle Jackman, Dr. Kyle McKenzie, Dr. David Ng and Dr. J. Doe as defendant physicians.
     
  5. Examinations for discovery of the defendant physicians were conducted between October 24, 2008 and December 18, 2008. At the examination for discovery of Dr. Ellen Tsai on October 24, 2008 Dr. Tsai identified Dr. McKinney and Dr. Al-Saati as additional doctors who had provided care and treatment to Sydney.
     

For the full decision, click to download:
McCormick v. Tsai, 2011 ONSC 2057 (CanLII)
(Adobe Acrobat [PDF] file - ~20K)

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Terry Matton and Insurance Corporation of British Columbia – Reasons for Decision on a Motion
December, 31 2009

Bogoroch & Associates represented Terry Matton, who was injured in a motor vehicle accident in October, 2003. He applied for and received statutory accident benefits from Insurance Corporation of British Columbia ("ICBC"). In July 2008, the parties were unable to resolve their disputes through mediation, and Mr. Matton applied for arbitration at the Financial Services Commission of Ontario.


 

Terry Matton and Insurance Corporation of British Columbia – Reasons for Decision on a Motion

 

Before: Jessica Kowalski
Heard: December 2, 2009, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Bogoroch & Associates for Mr. Matton
Sandi J. Smith for Insurance Corporation of British Columbia

 

The Applicant, Terry Matton, was injured in a motor vehicle accident on October 31, 2003. He applied for and received statutory accident benefits from Insurance Corporation of British Columbia (“ICBC”), payable under the Schedule.2 On or about May 8, 2007, ICBC terminated weekly income replacement benefits. On July 22, 2008, the parties participated in mediation but could not resolve their disputes, and in October 2008, Mr. Matton applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The Relevant Facts

As a result of this accident, Mr. Matton sustained, among other injuries, a serious fracture to his right femoral shaft. The parties acknowledge that the fracture did not heal in the usual course. It took a long time to heal solidly and was treated with an intramedullary rod. By May 2005, some 19 months after the accident, x-rays confirmed that the main fracture had healed. In March 2006, however, Mr. Matton continued to complain of intermittent pain in his right hip and buttock area. Examination revealed a full range of motion. Despite objective indicia that the fracture had healed, Mr. Matton continued to complain of ongoing pain. Dr. David Harding, Mr. Matton’s treating orthopaedic surgeon, and Dr. Stanislaw Tubin, another orthopaedic surgeon who had examined Mr. Matton, each suggested that Mr. Matton’s pain and discomfort might resolve if the intramedullary rod were removed.

The rod was removed in June 2006. In September 2006 Mr. Matton’s family doctor, Dr. Donald Davies, reported that Mr. Matton’s pain was worse than ever. On examination, Dr. Davies could not demonstrate any swelling and reported good range of motion in the hip. He requested an opinion for pain management and expressed concern as to Mr. Matton’s reliability with narcotics. Dr. Davies also expressed hesitation to increase Mr. Matton’s narcotics dose feeling it would not help the situation.

On March 8, 2007, Dr. Davies completed a disability certificate in which he noted the right femur fracture and pain. He recommended further orthopaedic assessments, and wrote that it was unknown whether Mr. Matton could return to work, even if on modified hours or duties. He suggested that Mr. Matton needed to be reassessed by specialists, and that Mr. Matton complained of “chronic pain” and an inability to work despite a healed fracture and a removed pin. According to the disability certificate, Dr. Davies noted that he had referred Mr. Matton to a chronic pain specialist in September 2006 but that he was still waiting for an appointment. He concluded the certificate with the question, “?why is [Mr. Matton] so disabled??” [sic]

In April 2007, at ICBC’s request, Dr. T.H. Wallace conducted another orthopaedic assessment, considering Mr. Matton’s ongoing low back, left knee and right leg complaints. Based on that assessment, on or about May 8, 2007, ICBC terminated Mr. Matton’s benefits.

In all, Mr. Matton attended numerous assessments at ICBC’s request including a functional capacity assessment, a transferable skills assessment, an in-home functional reassessment, a functional abilities evaluation, orthopaedic examinations, and a vocational evaluation assessment. Among the assessments was a psycho-vocational assessment with a psychologist, Dr. Jeffrey Phillips, in September 2005. Dr. Phillips found that Mr. Matton had low cognitive function, weak verbal and reasoning skills, was not an appropriate candidate for formal education and did not have significant potential to upgrade his skills beyond the observed levels. He reported that Mr. Matton’s potential was severely limited due to physical injury, intellectual limitations and functional illiteracy.

Mr. Matton has a long history of prior accidents. A Temiskaming Hospital Record from September 2000 indicates a prior history of thirteen accidents in total. Included in the history was the suggestion, as far back as 1998, that Mr. Matton ought to be on some low dose anti-depressants.3

Notes:

2The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.

3Noted in Dr. Wallace’s April 16, 2007 report for ICBC

 

For the full decision, click to download:
Terry Matton and Insurance Corporation of British Columbia – Reasons for Decision on a Motion
(Adobe Acrobat [PDF] file - ~500K)

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Giuseppe Vito Marchese and Dr. Ali Otman Fiture – Reasons for Decision
November, 30 2009

Bogoroch & Associates represented Giuseppe Vito Marchese in a medical malpractice case. At issue was the refusal of the defendant doctor to reattend on his discovery to answer questions which he refused to answer.


 

Giuseppe Vito Marchese and Dr. Ali Otman Fiture - Reasons for Decision

 

Re: Giuseppe Vito Marchese, Plaintiff
and
Dr. Ali Otman Fiture, Defendant
Before: Master Sproat
Counsel: Bogoroch & Associates, Counsel for the plaintiff
M. Leon, Counsel for the defendant
Heard: November 6, 2009

 

On February 18, 2010, Master Sproat of the Superior Court of Justice released her reasons in Marchese v Fiture, a medical malpractice case. Bogoroch & Associates represents the plaintiff, Mr Giuseppe Marchese.

Medical malpractice cases are difficult and complex and once Bogoroch & Associates takes on a case our clients can be certain that we will vigorously pursue their interests in our determination to obtain justice.

At issue was the refusal of the defendant doctor to reattend on his discovery to answer questions which he refused to answer. Before the court motion, the defendant doctor agreed to answer the questions but wanted to do so in writing and not by personal attendance. This was unacceptable to us, so we brought a motion to compel the doctor to attend personally and answer those questions which he initially refused but later agreed to answer. We felt it very important to the case so we pursued that issue.

Kate Cahill, a member of our medical malpractice litigation team, successfully argued the motion.

 

For the full decision, click to download:
Giuseppe Vito Marchese and Dr. Ali Otman Fiture - Reasons for Decision
(Adobe Acrobat [PDF] file - ~70K)

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Wong and Coffee Time
April, 30 2008

Richard Bogoroch and Heidi Brown had the honour of acting on behalf of a young man who was viciously assaulted late at night by several individuals inside a Coffee Time Donuts franchise in Toronto in March, 2001.


 

Wong and Coffee Time

Richard Bogoroch and Heidi Brown had the honour of acting on behalf of a young man who was viciously assaulted late at night by several individuals inside a Coffee Time Donuts franchise in Toronto, on March 13, 2001. This Coffee Time was open for business 24 hours per day.

As a result of the assault, our client sustained multiple stab wounds resulting in life-threatening injuries. Our client was required to undergo multiple surgeries to repair extensive damage to his internal organs and has been left with numerous scars all over his body. In addition, he has been left with permanent deficits in his left hand and right foot.

Our firm sued the individuals who assaulted our client, all of whom were convicted of varying degrees of assault and battery offences contrary to the Criminal Code of Canada.

In addition, we also sued Coffee Time, both as franchisor and franchisee, arguing that Coffee Time breached its obligations under the Occupiers Liability Act for the following reasons:

  1. Coffee Time did not have reasonable and adequate security measures in place on March 13, 2001 and therefore failed to keep our client safe while he was on their premises;
  2. Had Coffee Time provided reasonable and adequate security measures, the attack on our client would, on the balance of probabilities, have been deterred and prevented;
  3. The attack of March 13, 2001 was reasonably foreseeable and Coffee Time should have been aware of the risk to its customers and guests.

The matter proceeded to a jury trial in April of 2008. The trial lasted approximately three weeks.

After hearing all the evidence, the jury found that the individual defendants were 75% at fault collectively. This finding was expected, as the law presumes that by virtue of their criminal convictions, the individual Defendants cannot argue that they were not responsible for the attack.

The real victory for our client was the jury’s finding that the franchisor was 14% at fault, and the franchisee was 11% at fault, for a total of 25% fault against the Coffee Time Defendants.

The jury concluded that the Coffee Time franchisor breached its obligations to the Plaintiff under the Occupiers Liability Act for the following reasons:

  1. it failed to review and monitor the franchisee’s operation of the business;
  2. it failed to provide direction to the franchisee regarding security measures and equipment; and
  3. it failed to provide direction for upgrades to security measures regarding safety of customers to adapt to the changing business environment of the franchisee.

The jury found the franchisee liable for the assault for failing to provide a structure that would give customers a sense of authority and oversight of the premises, and for failing to adhere to the requirements set out in the Operations Manual of the franchisor. Specifically, the jury found that the person who was behind the counter on the night of the assault was not provided with adequate directions to identify and deal with emergency situations, such as the one that led to the assault on our client by a number of assailants inside the store.

Most significant was that the jury found that “the staffing was not proportionate to the considerable risks inherent to a late night shift in a 24 hour operation,” thereby holding 24 hour establishments to a very high standard of care in light of the fact that the business is open at night.

The jury awarded damages to the Plaintiff in the amount of $330,079.00 plus costs.

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Ruban Thangarasa and Gore Mutual Insurance Company – Reasons for Interim Decision
April, 30 2005

Linda Wolanski represented Ruban Thangarasa, who was injured in a motor vehicle accident on March, 1998. He applied for and received statutory accident benefits from Gore Mutual Insurance Company. The parties were unable to resolve their disputes through mediation, and Mr. Thangarasa applied for arbitration at the Financial Services Commission of Ontario.


 

Ruban Thangarasa and Gore Mutual Insurance Company – Reasons for Interim Decision

Before: John Wilson
Heard: December 8, 9, 10 and 11, 2003, May 31 and June 1, 2004, and June 28, 29 and 30, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Linda Wolanski for Mr. Thangarasa
Anna-Marie Castrodale for Gore Mutual Insurance Company

 

Issues:

The Applicant, Ruban Thangarasa, was injured in a motor vehicle accident on March 31, 1998. He applied for and received statutory accident benefits from Gore Mutual Insurance Company (“Gore Mutual”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Thangarasa applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

 

  1. Is Mr. Thangarasa entitled to receive a weekly income replacement benefit from February 5, 2001, claimed pursuant to section 4 of the Schedule?

     

  2. What is the amount of weekly income replacement benefit that Mr. Thangarasa is entitled to receive pursuant to section 6 of the Schedule? Mr. Thangarasa claims a weekly income replacement benefit of $340.53 per week.

     

  3. Is Gore Mutual liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Thangarasa?

     

  4. Is Gore Mutual liable to pay Mr. Thangarasa’s expenses in respect of the arbitration under section 282(11) of the Insurance Act.

     

  5. Is Mr. Thangarasa liable to pay Gore Mutual’s expenses in respect of the arbitration under section 282(11) of the Insurance Act.

     

  6. Is Mr. Thangarasa entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule.

     

Result:

 

  1. Mr. Thangarasa is entitled to receive a weekly income replacement benefit from February 5, 2001, as claimed pursuant to section 4 of the Schedule.

     

  2. Mr. Thangarasa is entitled to receive $340.53 as the amount of weekly income replacement benefit pursuant to section 6 of the Schedule. Payment of this amount shall commence forthwith, and continue pending resolution of the outstanding issues.

    The parties shall have 30 days to resolve the issue of the quantum of all outstanding benefits and interest and to make joint submissions as to the appropriate amount, failing which I will receive further evidence and submissions on this issue.

     

  3. Gore Mutual is liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Mr. Thangarasa, the amount of which remains to be determined.

     

  4. The liability of Gore Mutual to pay Mr. Thangarasa’s expenses in respect of the arbitration under section 282(11) of the Insurance Act remains to be determined.

     

  5. The liability of Mr. Thangarasa to pay Gore Mutual’s expenses in respect of the arbitration under section 282(11) of the Insurance Act remains to be determined.

     

 

Notes:

1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.

 

For the full decision, click to download:
Ruban Thangarasa and Gore Mutual Insurance Company – Reasons for Interim Decision
(Adobe Acrobat [PDF] file - ~21K)

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Andrew Zaborowski and State Farm Mutual Automobile Insurance Company – Decision on a Preliminary Issue
January, 31 2005

Bogoroch & Associates represented Andrew Zaborowski, who was receiving statutory accident benefits from State Farm Mutual Automobile Insurance Company after being injured in a motor vehicle accident in May, 1998. After State Farm terminated Mr. Zaborowski’s weekly income replacement benefits, he applied for arbitration of this issue at the Financial Services Commission of Ontario under the Insurance Act.


 

Andrew Zaborowski and State Farm Mutual Automobile Insurance Company – Decision on a Preliminary Issue

Before: Fred Sampliner
Heard: By telephone conference call on January 24, 2005.
Appearances: Bogoroch & Associates for Mr. Zaborowski
Matt Duffy for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Andrew Zaborowski, was injured in a motor vehicle accident on May 16, 1998, and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.1 State Farm terminated Mr. Zaborowski’s weekly income replacement benefits, and he applied for arbitration of this issue at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. Mr. Zaborowski refused to attend examinations that State Farm scheduled with a physiatrist and psychologist.

The preliminary issue is:

  1. Is State Farm’s request that Mr. Zaborowski attend examinations with its health care experts reasonable?
  2. If so, what are the consequences of Mr. Zaborowski’s failure to attend?

Result:

  1. State Farm’s examinations with its health care experts are not reasonable.
  2. Mr. Zaborowski’s refusal to attend has no consequence.

Notes:

1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.

 

For the full decision, click to download:
Andrew Zaborowski and State Farm Mutual Automobile Insurance Company – Decision on a Preliminary Issue
(Adobe Acrobat [PDF] file - ~21K)

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Bianca and Wawanesa Mutual Insurance Company – Decision on a Preliminary Issue
November, 30 2004

Bogoroch & Associates represented Mrs. Coradina Bianca, who applied for statutory accident benefits from Wawanesa after a motor vehicle accident in 2001. When Wawanesa indicated that they would not accept the claim, Mrs. Bianca applied for arbitration at the Financial Services Commission of Ontario (FSCO) under the Insurance Act. The FSCO determined that Wawanesa is required to respond to Mrs. Bianca’s claim for statutory accident benefits.


 

Bianca and Wawanesa Mutual Insurance Company – Decision on a Preliminary Issue

Before: Lorne Slotnick
Heard: November 12, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Bogoroch & Associates for Mrs. Bianca
Donald G. Cormack for Wawanesa Mutual Insurance Company

Issues:

The Applicant, Coradina Bianca, was injured in a motor vehicle accident on January 25, 2001. She applied for statutory accident benefits from Wawanesa Mutual Insurance Company (“Wawanesa”), payable under the Schedule.1 Wawanesa returned the application to Mrs. Bianca, saying it would not accept the claim. The parties were unable to resolve their disputes through mediation, and Mrs. Bianca applied for arbitration at the Financial Services Commission of Ontario under theInsurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Is Wawanesa required to respond to the Applicant’s claim for statutory accident benefits?

Result:

Wawanesa is required to respond to Mrs. Bianca’s claim for statutory accident benefits.

 

Evidence and Analysis:

This application for benefits has a rather complex history. However, the relevant facts are agreed between the parties, with one exception.

Mrs. Bianca was walking across Danforth Avenue in Toronto on January 25, 2001, when she was knocked down by a 1987 Dodge van owned by a man named Vito Morelli and driven by a woman named Wilma Little. Mrs. Bianca was not an insured person under any auto insurance policy. The van that hit her was not insured at the time of the accident. The driver, Ms. Little, had had insurance with Wawanesa covering other vehicles. The one fact in dispute is whether Ms. Little had any liability insurance in effect with Wawanesa at the time of the accident. Wawanesa asserts there was no liability insurance in place (which would include statutory accident benefits). Mrs. Bianca argues there was.

 

Notes:

1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.

 

For the full decision, click to download:
Bianca and Wawanesa Mutual Insurance Company – Decision on a Preliminary Issue
(Adobe Acrobat [PDF] file - ~21K)

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Pagonis et al v. Long et al – Reasons for Judgment
February, 03 2004

Richard Bogoroch represented the Pagonis family at the trial of a legal issue to determine how much insurance coverage was available to satisfy the plaintiffs' claims. The defense argued that there was $200,000 available, while Richard Bogoroch successfully argued that there was $1 million.


 

Pagonis et al v. Long et al

Reasons for Judgment

Before the Honourable Mr. Justice H. Spiegel
On Tuesday, February 3, 2004

Appearances

Counsel for the Plaintiffs: Bogoroch, R. Mr.
Counsel for the Plaintiffs: Regan, J. Mr.

SPIEGEL, J. (Orally):

The agreed Statement of Facts admits that the owner of the vehicle in question was identified as Terry Long. There is a dispute between the parties as to whether the driver of the vehicle was identified.

The issue before me is, whether under those circumstances Terry Long is an inadequately insured motorist within the meaning of Section 1.5 of the OPCF Family Protection (OPCF 44) Coverage of the automobile policy of the plaintiffs issued by the defendant insurer.

Section 1.5 provides that an inadequately insured motorist means, … “the identified owner or identified driver of an uninsured automobile as defined in Section 5 of the Uninsured Automobile Coverage of the policy”.

The policy in question is the OAP1 Owners policy. Section 5 deals with the Uninsured Automobile coverage. An uninsured automobile is defined in Paragraph 5.1.2 of that Section as: “An uninsured automobile is one for which neither the owner nor the driver has liability insurance to cover bodily injury or property damage arising out of its ownership use or operation ---”. It is admitted that the Long vehicle is an uninsured vehicle.

The submission of the defendant insurer is that he word “or” in Section 1.5 of the OPCF 44 should be interpreted conjunctively. In other words, it is submitted that both the owner and driver of the motor vehicle must be identified in order for there to be an “inadequately insured motorist”. This submission has no merit. The plain meaning of the word “or” in the context of the 1.5(b) is that if either the owner or the driver is identified they fall within the definition of an inadequately insured motorist, provided that an uninsured automobile is involved.

This conclusion is bolstered when on looks at the insuring agreement which limits recovery to the amount that the eligible claimant, “is legally entitled to recover from an adequately insured motorist”. If there is both an unidentified driver and an unidentified owner, the claimant would not be able to recover against either.

It is implicit in the reasoning of the Court of Appeal in Chilton et al v. Co-operators 32 O.R. (3d)161 that if the vehicle had not been stolen and therefore, driven without the consent of the identified owner, that the court would have found that the family Protection Endorsement coverage applied.

Where the court finds that the vehicle in question was being driven without the consent of the owner, the vicarious liability provision of the Highway Traffic Act, Section 193, does not impose liability on the owner. The eligible claimant would have no right to recover from the identified owner and therefore would not fall within the terms of the insuring agreement.

For the full decision, click to download:
Pagonis et al v. Long et al – Reasons for Judgment
(Adobe Acrobat [PDF] file - ~70K)

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Edward Van Dyke and Dorothy Van Dyke, and The Grey Bruce Regional Health Centre, Alexander Marsh, J. Ostrander, John Doe, Grey-Bruce Home Care Program and VON Grey-Bruce Branch – Reasons for Judgment
March, 25 2003

Richard Bogoroch, assisted by Linda Wolanski and Tripta Chandler, successfully represented Edward Van Dyke in a medical malpractice lawsuit. Mr. Van Dyke sustained serious injuries and the permanent destruction of his vestibular function as a result of the administration of a powerful antibiotic called Gentamycin. Most recently, the Ontario Superior Court of Justice issued its endorsement regarding the total damages and costs for this case.


 

Edward Van Dyke and Dorothy Van Dyke, and The Grey Bruce Regional Health Centre, Alexander Marsh, J. Ostrander, John Doe, Grey-Bruce Home Care Program and VON Grey-Bruce Branch *

Reasons for Judgment

Before: J. Van Melle

Heard: January 7-10, 13, 14, 15, 17, 20-24, 27-31. February 3, 17, March 24, 25, 2003

Appearances: Richard M. Bogoroch, Linda Wolanski and Tripta Chandler for Edward Van Dyke and Dorothy Van Dyke, and Jonathan Lisus and Thomas Sutton for the Defendants. Dr. Marsh and Dr. Ostrander and Hugh Brown and Ann Mitchell for the Defendant VON Grey-Bruce Branch

Reasons for Judgment

[1] At trial, this case proceeded against Dr. Marsh and Dr. Ostrander and the Victorian Order of Nurses (VON). At the conclusion of the co-defendants’ case, the VON brought a motion for a non-suit which was granted.

[2] In 1995 Edward Van Dyke was a reasonably healthy, fit 35 year old man. He was (and still is) married to Dorothy, with four children, Kyle, Karrie, Karlynn and Kristen. He resided in Hepworth, just outside of Owen Sound and worked as a shipper/receiver at the Beaver Lumber store (now Home Hardware) in Owen Sound. His life revolved around his family, work, church and friends.

[3] On the Victoria Day weekend in May of 1995, Mr. Van Dyke started having terrible headaches, facial pain and nausea. As a result of the severe pain in his head, Mr. Van Dyke went to the emergency department of the Wiarton Hospital. He was prescribed painkillers and oral Amoxil. Mr. Van Dyke’s symptoms did not improve and he went to his family doctor, Dr. Jane Tucker on May 25,1995. She discontinued the Amoxil and prescribed oral Clarithromycin. She also ordered a series of x-rays from the Wiarton hospital.

[4] Initially, Mr. Van Dyke responded well to the oral Clarithromycin. However, soon after, his symptoms worsened dramatically. On June 2 he went back to Dr. Tucker. Dr. Tucker was immediately concerned and arranged for Mr. Van Dyke to be admitted to the Grey Bruce hospital. She also prescribed Gentamicin and Clindmycin to be taken intravenously and called in Dr. Alexander Marsh to assist.

[5] Dr. Marsh is an Otolaryngologist who has been practising as an ENT surgeon in Owen Sound since the fall of 1985. He received an undergraduate medical degree from the University of Western Ontario in 1979. After completing a rotating internship at St Joseph’s Health Centre in London, he entered a residency program in Otolaryngology.

[6] Mr. Van Dyke presented at the Grey-Bruce Regional Hearth Centre with a serious sinus infection, which was complicated by the fact that he had been in a serious car accident in 1979. In the car accident, he suffered multiple injuries, including a depressed skull fracture, a compound fracture of the frontal sinus, a flail chest injury, severe facial lacerations and a blunt trauma to the abdomen. Both the anterior and posterior walls of his frontal sinus were shattered into multiple fragments and the dura covering his brain was pierced, causing a leakage of cerebro-spinal fluid. The traumatized area was rebuilt using bony fragments, metal wires and tissue extracted from Mr. Van Dyke’s thigh.

[7] Dr. Marsh first met Mr. Van Dyke on June 3, 1995. He concluded that Mr. Van Dyke was suffering from an infection of the soft tissue, involving the nerves in the area by inflammatory spread or compression, and that this was complicated by Mr. Van Dyke’s medical history. Dr. Marsh also feared that Mr. Van Dyke might have osteomylitis. Dr. Marsh ordered a bone and gallum scan, Dr Marsh prescribed an aggressive course of antibiotics, and continued Mr. Van Dyke on Gentamicin, as originally prescribed by Dr. Tucker.

[8] On June 3, 1995 Dr. Marsh reviewed a CT scan, which had been ordered by Dr. Tucker.

[9] On June 5, 1995 the bone scan ordered by Dr. Marsh was carried out and on June 7, 1995 a report was filed on the chart. Also, as ordered by Dr. Marsh, a gallium scan was taken on June 8, 1995.

[10] Mr. Van Dyke’s condition improved steadily until June 10th but thereafter his condition deteriorated dramatically. Dr. Chatterson, an emergency physician who added intravenous Ceftazadine and continued Gentamicin, saw him on June 11th. Dr. Chatterson requested that Drs. Marsh and Ostrander consult on June 12. Dr. March ordered a further CT scan to assess the extent of Mr. Van Dyke’s infection.

[11] Dr. Jack Ostrander was consulted to review the antibiotic therapy already prescribed, and first saw Mr. Van Dyke on June 12,1995. Dr. Ostrander is a general internist. He received his undergraduate medical degree in 1968 from the University of Western Ontario, after which he entered a five year program of internal medicine with one year of neurologic sub specialization. He has been in private practice in Owen Sound since 1974. In his consultative note, Dr Ostrander recorded the complications arising from Mr, Van Dyke’s prior motor vehicle accident and the probable diagnosis of left peri-orbital cellulitis. Dr. Ostrander concurred with the antibiotic therapy. In particular. Dr. Ostrander concurred in the prescribing of Gentamicin for Mr. Van Dyke.

[12] The CT scan of June 12, 1995, indicated an abscess in the peri-orbital region. Surgery carried out by Dr. Marsh on June 14. 1995 confirmed an abscess. The abscess was drained and a drain was inserted. Mr. Van Dyke was maintained on the antibiotic regimen, including Gentamicin.

[13] Mr. Van Dyke was discharged from the hospital on June 20, 1995. He was to continue therapy at home under the supervision of the VON.

[14] According to Mr. Van Dyke, sometime on June 30, 1995, Mr. Van Dyke experienced symptoms of dizziness. The VON learned of this on July 3 and Mr. Van Dyke was advised to contact Dr. Marsh immediately which he did. The Gentarnicin was stopped immediately.

[15| Although the Gentamicin was stopped on July 3, Mr. Van Dyke had already suffered a bilateral vestibular loss.

[16] It is acknowledged by the parties that Mr. Van Dyke suffers from a bilateral loss of his vestibular apparatus as a result of Gentamicin toxicity.

[17] Gentamicin is an aminoglycoside, a potent antibiotic which carries the risk of significant toxicities, nephrotoxicity (damage to the kidneys) and ototoxicity (damage to the inner ear.)

[18] When Gentamicin is administered, it is taken up by hair cells in the ear, some of which are associated with hearing and some with vestibular function. When it accumulates, it begins to kill the hair cells, causing loss of either hearing or vestibular function, depending on which cells are killed. The longer the patient is on the drug, the more accumulation there is and the greater the risk of injury.

[19] The Plaintiffs claim:

 

  1. that the Defendant doctors were negligent in continuing to prescribe Gentamicin after the surgery of June 14,1995;
  2. that the Defendants were negligent in continuing to treat Mr. Van Dyke on the basis of a diagnosis of osteomylitis when virtually all of the evidence available to them pointed otherwise;
  3. that the Defendants were negligent in failing to order daily monitoring by the VON;
  4. that the Defendants were negligent in falling to keep proper medical records of their treatment of the Plaintiff and that the Defendants were negligent in failing to property inform Mr. Van Dyke and his wife of the risk associated with the prolonged administration of Gentamicin and the availability of alternative drugs, particularly in the time period after the June 14 surgery.

 

For the full decision, click to download:
Edward Van Dyke and Dorothy Van Dyke, and The Grey Bruce Regional Health Centre, Alexander Marsh. J. Ostrander. John Doe, Grey-Bruce Home Care Program and Von Grey-Bruce Branch – Reasons for Judgment
(Adobe Acrobat [PDF] file - ~95K)

Endorsement Re: Total Damages and Costs

Van Melle. J.

Total Damages

[1] Further to my Judgment dated July 16, 2004, I asked the Plaintiffs and Defendants to provide me with additional information from their experts. (Mr. Segal for the plaintiffs and Professor Pesando for the defendants.) The calculations presented at trial were made as of September 23, 2002. I asked for additional information so that the calculations could be made as at July 16, 2003.

[2] Regarding the Past and Future Loss of Earnings calculation, I accept Professor Pestando’s calculation. His calculation uses the more detailed approached referred to by Mr. Segal, but actually carried out by Professor Pesando.

[3] I find that Mr. Van Dyke’s past loss of earnings is $233,213.00 and his future loss is $503,226.00 both as at July 16, 2003. (Note that Mr. Segal’s calculation was $207,185.00 and $530,138.00.)

[4] Mr. Segal calculated the July 16, 2003 value of the Future Care costs assuming a start date of September 23, 2002. Professor Pesando’s figure assumes a start date of July 16, 2003, the day of the Judgment. In my view, the Future Care costs should be calculated as at the date of trial, which is the date the evidence as to Future Care costs was adduced. I have taken calculations into account and by applying a pro rata formula, find that the increase should be $3,500.00 for a total of $260,908.00.

[5] Mr. Segal and Professor Pesando agree that the tax gross-up should be expressed as a percentage of the award for the future costs of care. The gross up would therefore be $67,835.00.

[6] The total award pursuant to my Judgment of July 16, 2003 is as follows:

 

General damages $100,000.00
FLA claim $20,000.00
Past loss of earnings $233,213.00
Future loss of earnings $503,226.00
Future care costs $260,908.00
Gross up $67,835.00
OHIP $3,881.86
TOTAL: $1,189,063.80

[7] Pre- and post-judgment interest will go in accordance with the Courts of Justice Act.

For the full decision, click to download:
Edward Van Dyke and Dorothy Van Dyke, and The Grey Bruce Regional Health Centre, Alexander Marsh. J. Ostrander. John Doe, Grey-Bruce Home Care Program and Von Grey-Bruce Branch – Endorsement Re: Total Damages and Costs
(Adobe Acrobat [PDF] file - ~120K)

 

* Please note that in 2005, the Court of Appeal of Ontario reversed the decision of the trial judge.

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Ken Alex Rumak and Personal Insurance Company of Canada – Reasons for Decision
March, 11 2003

Bogoroch & Associates successfully represented Alex Rumak in a very significant accident benefits case. Mr. Rumak suffered a catastrophic injury when he was struck by a car while crossing the street at the age of 16. To date, the impact of his injuries has impeded Mr. Rumak from seeking employment, and this decision provides him with income replacement benefits.


 

Ken Alex Rumak, and
Personal Insurance Company of Canada

Reasons for Decision

Before: Joyce Miller
Heard: December 2, 3, 4, 5, 2002, January 6, 7, 8, 9,10, 2003 and March 11,2003
at the offices of the Financial Services Commission of Ontario in Toronto.
Written submissions were received from both parties by May 2, 2003.
Motion submissions heard on November 3, 2003
Appearances: Bogoroch & Associates for Mr. Rumak
Deborah G. Neilson for Personal Insurance Company of Canada

 

Issues

 

The Applicant, Ken Alex Rumak, was injured in a motor vehicle accident on July 6, 1997. He applied for and received statutory accident benefits from Personal Insurance Company of Canada (“Personal”), payable under the Schedule.1 Personal terminated weekly income replacement benefits on April 12, 2001. The parties were unable to resolve their disputes through mediation, and Mr. Rumak applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, C.I. 8, as amended.

The issues in this hearing are:

 

  1. Is Mr. Rumak entitled to an income replacement benefit in the amount of $214.88 per week pursuant to subparagraph 5(2)(b) of the Schedule from April 13,2001 and ongoing?

     

  2. Is either party liable to pay the other's expenses in respect of the arbitration hearing, pursuant to subsection 282(11) of the Insurance Act?

Mr. Rumak also claims interest on the amounts owing.

Result

  1. Mr. Rumak is entitled to an income replacement benefit in the amount of $214.88 per week from April 13, 2001 and ongoing, less any amount for income received by Mr. Rumak in respect of any employment after the accident.
  2. Mr. Rumak is entitled to interest on past benefits owed pursuant to subsection 46(2) of the Schedule.
  3. The parties shall have 30 days from the issuance of this decision to inform the Case Administrator on this file if they wish to present any further evidence and/or submissions on the issue of a special award, failing which I will make a decision on the evidence on the record in this matter.
  4. The issue of expenses is deferred until after the hearing on the special award.

     

Background

Mr. Rumak, who was 16 years old at the time of the accident, suffered a catastrophic injury2 when he was struck by a car while crossing the street at 8:30 p.m. on July 6, 1997 in Whitby, Ontario.

When Mr. Rumak was hit by the car he was thrown onto the hood of the car and he struck the windshield, which spider webbed as a result of the impact. The moving car then threw Mr. Rumak about 20 or 30 feet and he hit the ground face first. At the scene of the accident the paramedics observed an obvious head trauma3 , particularly over his right eye. They also reported his Glasgow Coma Scale (“GCS”) – a test measuring a person’s consciousness level – on three different readings fluctuated from 5/15, 9/15, and 4/15.

Mr. Rumak was immediately taken to the Oshawa General Hospital. His GCS reading when he arrived at the hospital was 13/15. His condition however began to deteriorate and his GCS reading went down to 7/15. A tube was inserted into Mr. Rumak’s larynx to keep the air passages open, and he was transferred to Sunnybrook Health Science Centre in Toronto (“Sunnybrook”) at approximately 1:25 a.m.

At Sunnybrook, Mr. Rumak immediately underwent two operations. The first operation was neurosurgery. This operation involved the elevation of the depressed frontal skull fracture and the repair of a laceration to his dura – the outer covering of his brain. The neurosurgeon recorded that the underlying brain tissue that was seen through the lacerated dura was “obviously contused and appeared necrotic.” That is, there was bruising and signs of cell death in the frontal area of Mr. Rumak’s brain.

The second operation, which occurred immediately after the first one, related to the fracture to Mr. Rumak’s right eye orbit and involved an open reduction and internal fixation of the inferior orbital rim with a bone graft to the orbital floor to repair me damage to the orbit.

Mr. Rumak remained in a semiconscious state in the Intensive Care Unit for about six days. He was then transferred to a ward and was discharged from hospital on July 23, 1997. While he was at the hospital, however, he developed a staph infection which required him to be on intravenous antibiotics for a period of two weeks.

Mr. Rumak’s injuries at the time of the accident can be briefly summarized as follows:

 

  • a closed head injury
  • right frontal depressed skull fracture
  • right frontal contusion
  • facial fractures involving the right eye – this included fracture of inferior orbital rim, fracture defect of right orbital floor and fracture of the superior orbit – as well as a fracture of the right Zygoma (cheekbone)
  • lacerations to right eye and eyebrow
  • contusions and abrasions to the face and extremities
  • a fractured left clavicle
  • a partial ligament tear in the right knee
  • left side hearing loss
  • general bodily injuries included neck pain, muscle spasms, restricted range of movement and flow, problems with his pelvis and positioning of some of his internal organs.

In addition to the two operations Mr. Rumak underwent on July 7, 1997, as a result of the accident he also underwent two other operations. One, was in November 1999 when the tear to his right knee ligament was repaired. The other was on December 17, 2001, which involved a surgical reconstruction of the skull and facial bones in an attempt to correct a post-traumatic deformity and orbital volume discrepancies. The operation included the removal of the hardware from his previous surgery and the contouring of excessive bone in the right orbital roof and reconstruction of the contour of the skull with calcium phosphate cement and the reconstruction of the right enophthalmos [a backward displacement of the eyeball into the orbit] and correction of the orbital volume discrepancies with Medpor implant.

Mr. Rumak, who is now 22 years old, submits that as a result of the accident he suffers from cognitive, physical, emotional and behavioural problems which has resulted in a complete inability to engage in any employment for which he is reasonably suited by education, training or experience pursuant to the post 104-week test in subsection 5(2) of the Schedule.

Personal submits that Mr. Rumak does not meet the post 104-week test in that he has worked and continues to work since 1998. In addition, Personal submits that Mr. Rumak’s problems predate the accident.

 
Notes:

1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.

2On October 26,1999, a Catastrophic Impairment DAC Assessment determined that Mr. Rumak suffered a catastrophic injury as a result of his car accident.

3It was later confirmed that Mr. Rumak suffered a fractured skull and a brain injury. Specifically, he had “suffered a right frontal lobe contusion involving multiple foci of haemorrhage and edema of the surrounding brain tissue. These injuries were associated with a fracture of the roof and lateral wall of the right orbit extending vertically through the frontal lobes.” [Applicant's submissions at p,9]

 

For the full decision, click to download:
Ken Alex Rumak and Personal Insurance Company of Canada – Reasons for Decision
(Adobe Acrobat [PDF] file - ~410K)

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E.H. and Wawanesa Mutual Insurance Company – Reasons for Decision
May, 30 2001

Bogoroch & Associates successfully represented applicant E.H. after he was injured in a 1995 motor vehicle accident. 


 

E.H. and Wawanesa Mutual Insurance Company – Reasons for Decision

Before: Lawrence Blackman
Heard: May 29 and 30, 2001, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Bogoroch & Associates for E.H.
Andrew Lee for Wawanesa Mutual Insurance Company

Issues:

The Applicant, E.H., was injured in a motor vehicle accident on September 8, 1995. He applied for and received weekly income replacement benefits from Wawanesa Mutual Insurance Company (&147;Wawanesa”), payable under the Schedule.1Wawanesa began paying E.H. weekly loss of earning capacity benefits of $347.60 on February 15, 1999, in accordance with a Residual Earning Capacity Designated Assessment Centre (REC DAC) report of Providence Continuing Care Centre (Providence).

Both parties dispute the REC DAC’s findings. The parties were unable to resolve their disputes through mediation and E.H. applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the Insurance Act).

Accordingly, the issues in this hearing are:

 

  1. What is the correct quantum of E.H.’s loss of earning capacity benefit, pursuant to section 20 of the Schedule?

     

  2. Is E.H. entitled to interest on any overdue payments, pursuant to section 68 of the Schedule?

     

  3. Is E.H. entitled to his expenses in respect of this arbitration proceeding, pursuant to subsection 282(11) of the Insurance Act?

     

  4. Is Wawanesa entitled to its expenses in respect of this arbitration proceeding, pursuant to subsection 282(11) of the Insurance Act?

     

Result:

 

  1. E.H. is entitled to a weekly loss of earning capacity benefit of $411.81 (subject to indexation under section 79 of the Schedule) ongoing from February 15, 1999, together with interest on any overdue amounts in accordance with section 68 of the Schedule.

     

  2. E.H. is entitled to his expenses in respect of this arbitration proceeding, pursuant to subsection 282(11) of the Insurance Act.

 

Notes:

1The Statutory Accident Benefits Schedule – Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94, 463/96 and 304/98.

 

For the full decision, click to download:
E.H. and Wawanesa Mutual Insurance Company – Reasons for Decision
(Adobe Acrobat [PDF] file - ~50K)

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Simon and Lusis – Reasons for Judgment
October, 20 2000

Richard Bogoroch, assisted by Heidi Brown, represented plaintiffs Nadine and Shawn Simon in a case involving complications and emergency surgery for a gastric ulcer.


 

September, 2000

Note: The Simon vs. Lusis case was overturned on appeal. The appeal turned on the issue of causation and not on the doctor's failure to meet the accepted standard of care. The issue of the doctor's negligence and failure to meet an accepted standard of care was not dealt with by the Court of Appeal.

The following is the text of the original judgment in which Bogoroch and Associates was involved.

 

Simon and Lusis – Reasons for Judgment

October 20, 2000
Before the Honourable Mr. Justice Juriansz

Oral Reasons for Judgment

First, I will set out the basic facts.

Mrs. Nadine Simon was born September 29, 1966 in Newfoundland. She completed grade 11 in 1986; married in July of 1990; had a son in January of ’89 and a daughter in July of ’94.

In 1991, while living in New Brunswick and working on an assembly line, she injured her back and was never returned to work. She had unsuccessful back surgery in November of 1991, and ever since then has been on Workers’ Compensation or Canada Pension Plan Disability Benefits.

Since then, she has suffered severe back pain. In July of 1996, she was back living in Newfoundland and began to experience gastric symptoms. Her family doctor, Dr. Dennis, referred her to a gastroenterologist, Dr. Jenkins.

Dr. Jenkins visually confirmed that she was suffering from a gastric ulcer by using a gastroscope. The vast majority of gastric ulcers are caused either by a bacterium called “H. Pylori” or by the use of NSAIDs. NSAIDs are a group of medications that include aspirin. Gastric ulcers that are caused by NSAIDs are treated by a drug named “Losec,” which evidently is highly effective. Ulcers caused by H. Pylori are treated by triple therapy which is comprised of Losec and a combination of antibiotics.

Dr. Jenkins took a biopsy which indicated that Ms. Simon’s ulcer was H. Pylori negative. Thus, it may be concluded Ms. Simon’s ulcer was caused by the use of NSAIDs and the continued use of NSAIDs was extremely dangerous to her. If Ms. Simon stopped taking NSAIDs, it would be highly unlikely that the ulcer would recur after it had been appropriately treated.

On the other hand, if she continued to take NSAIDs, there was a high likelihood that the ulcer would come back or that it would begin to bleed or perforate. A bleeding or perforated ulcer is life threatening. Smoking is also not good for ulcers. Dr. Jenkins prescribed Losec for Ms. Simon and told her to stop smoking and to discontinue taking aspirin. He said that if she had backaches she should use Acetamaphene Nofen. This was at the end of November, 1996.

In March of 1997, Ms. Simon moved to Brampton, Ontario with her family. She came under the care of Dr. Lusis who has had a family practice in Brampton since 1976.

She first saw him on April 7, 1997 and remained a patient of his until July, 1998.

While on a trip to Newfoundland in July, 1998, she vomited blood and was admitted to the hospital where she continued to bleed from a large gastric ulcer. She required blood transfusions and emergency surgery to remove the portion of her stomach contain the ulcer. Ms. Simon had been taking over-the-counter medication called “AC&C” which stands for Aspirin, Codeine, and Caffeine.

Ms. Simon claims that Dr. Lusis failed to exercise a reasonable standard in his care of her and had he done so she would not have had a recurrence of the ulcer, the complications of the ulcer, and the surgery to remove the portion of her stomach.

Ms. Simon claims that Dr. Lusis failed to give her any warning about the use of NSAIDs or an inadequate warning. She also claims that Dr. Lusis failed to refer her to a gastroenterologist in a timely manner to ensure that her ulcer, whether had been documented in Newfoundland earlier had healed properly.

I will now turn to an assessment of the quality of the testimony.

For the full decision, click to download:
Simon and Lusis – Reasons for Judgment
(Adobe Acrobat [PDF] file - ~52K)

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Domenica Fimiani and Liberty Mutual Insurance Company – Reasons for Decision
November, 12 1999

Richard Bogoroch, assisted by Linda Wolanski, represented plaintiff Domenica Fimiani in obtaining benefits from Liberty Mutual Insurance in the aftermath of a motor vehicle accident.


 

Domenica Fimiani and Liberty Mutual Insurance Company

Reasons for Decision

Before: David Muir

Heard: April 6, 7, 8, September 7, 8, 9 and November 12, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Richard M. Bogoroch and Linda Wolanski for Mrs. Fimiani Wayne Edwards and Michael J. Hucklack for Liberty Mutual Insurance Company

Issues:

The Applicant, Domenica Fimiani, was injured in a motor vehicle accident on August 28, 1994. She applied for and received statutory accident benefits from Liberty Mutual Insurance Company (“Liberty Mutual”), payable under the Schedule. Liberty Mutual terminated weekly income 1 replacement benefits on September 28, 1995. The parties were unable to resolve their disputes through mediation, and Mrs. Fimiani applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this hearing are:

 

  1. Is Mrs. Fimiani entitled to receive a weekly income replacement benefit after September 28, 1995, pursuant to section 7 of the Schedule on the basis that she suffers a substantial inability to perform the essential tasks of her employment?
  2. Is Mrs. Fimiani entitled to rehabilitation benefits claimed pursuant to paragraph 40 of the Schedule?
  3. Is Mrs. Fimiani entitled to payments for dependant care and housekeeping and home maintenance services claimed pursuant to sections 54 and 55 of the Schedule?
  4. Is Liberty Mutual liable to pay a special award based on Liberty Mutual’s refusal to accept her condition of ongoing pain and its reliance on a DAC assessment by a chiropractor who could not assess the pain condition, pursuant to section 282(1) of the Insurance Act, R.S.O. 1990, c. I.8?
  5. Is Liberty Mutual liable to pay Mrs. Fimiani’s expenses of this arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

Result:

 

  1. Mrs. Fimiani is entitled to receive a weekly income replacement benefit after September 28, 1995, pursuant to section 7 of the Schedule to date, on the basis that she suffers a substantial inability to perform the essential tasks of her employment.
  2. Mrs. Fimiani is entitled to the rehabilitation benefits claimed pursuant to paragraph 40 of the Schedule.
  3. Mrs. Fimiani is entitled to payments for dependant care and housekeeping and home maintenance services claimed pursuant to sections 54 and 55 of the Schedule.
  4. Liberty Mutual is liable to pay a special award based on its refusal to accept her condition of ongoing pain and its reliance on a DAC assessment by a chiropractor who could not assess the pain condition, pursuant to section 282(1) of the Insurance Act, R.S.O. 1990, c. I.8.

 

For the full decision, click to download:
Domenica Fimiani and Liberty Mutual Insurance Company – Reasons for Decision
(Adobe Acrobat [PDF] file - ~45K)

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Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler and Mills
March, 09 1992

Richard Bogoroch was associate counsel representing the plaintiffs in an action against a firm of solicitors claiming damages for negligence.


 

Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler and Mills
68 O.R. (2d) 165.

March 9, 1989
The Honourable Justice O'Leary

A solicitor drafted five promissory notes for the plaintiff, payable on demand, which were partially unenforceable because of their failure to comply with s. 4 of the Interest Act, R.S.C. 1970, c. I-18, which provides that where interest is made payable "by the terms of any written or printed contract" at a percentage for a period less than a year, no interest is recoverable exceeding 5% per annum unless the contract contains an express statement of the annual rate. Four of the notes provided for interest at an annual rate of 18% before demand and 2% monthly thereafter. The fifth provided for interest at 2% monthly. In none of the notes was the monthly rate of 2% expressed as an annual rate. The plaintiff was unable to recover the full interest provided. It brought an action against the firm of solicitors claiming damages for negligence.

Held, the solicitor was negligent and the plaintiff was entitled to recovery for its loss.

A promissory note is a "contract" within the meaning of s. 4. A reasonably competent solicitor, undertaking to draft a promissory note, should have known of, and taken account of, s. 4. Consequently, the defendant was liable for the plaintiff's loss.

See also:
Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler and Mills – Supplementary Reasons for Decision

For the full decision, click to download:
Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler and Mills -- Text of Full Decision
(Adobe Acrobat [PDF] file - ~52K)

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Pettey v. Avis Car Inc.
March, 09 1989

Richard Bogoroch was associate counsel representing plaintiffs who claimed damages arising from a tragic accident in the Town of Barrhead, Alberta involving two motor vehicles.


 

Pettey et al. v. Avis Car Inc. et al.
13 O.R. (3d) 725

June 23, 1993
The Honourable Mr. Justice Ferrier

The plaintiffs claimed damages arising from a tragic accident in the Town of Barrhead, Alberta involving two motor vehicles. The five defendants were: A Inc., the owner of the vehicle in which the plaintiff CP was a passenger; DP, the driver of that vehicle; R Ltd., the owner of the second vehicle; Y, the driver of the second vehicle; and, the Town of Barrhead. There were cross-claims for contribution and indemnity between all the defendants. On the second day of a non-jury trial, the plaintiff and the defendants A Inc. and DP advised the court that they were in the process of signing a "Mary Carter" type of settlement agreement. Under this type of agreement, the action continues but the contracting defendant guarantees that the plaintiff will recover a certain sum, which sum fixes the contracting defendant's maximum liability. Under the agreement, the contracting defendant's obligation to pay is reduced in direct proportion to any increase in the non-contracting defendant's liability; viz. , if the contracting defendant guaranteed $3,000,000 and the court assessed damages at $6,000,000 with liability attributed equally between the defendants, then the plaintiff would receive $1,500,000 from the contracting defendant and $3,000,000 from the non-contracting defendant. In the case at bar, the terms but not the monetary amounts in the agreement were disclosed and a copy of the complete text in a sealed envelope was provided should the court wish disclosure. The other defendants moved for a stay of the action on the grounds that the agreement was an abuse of process and void as against public policy, or, alternatively, for a mistrial because the agreement was disclosed after the trial was underway.

Held, the defendants' motion should be dismissed.

No blanket approval of all Mary Carter type agreements should be given; each particular agreement should be assessed in the light of (a) the general principles that: parties are free to contract and to settle lawsuits, the court will not lightly interfere with such settlements, and the court encourages settlements, and (b) the following particular principles for Mary Carter agreements. Excepting the dollar amounts and gratuitous and self-serving language, the agreement must be disclosed to the parties and to the court as soon as it is made. Immediate disclosure is necessary as a matter of procedural fairness and to allow the court to properly control the judicial process. It is in the discretion of the court in the circumstances of each case whether the dollar amounts should also be disclosed. It is not objectionable that the agreement is disclosed after the trial has commenced, if that is when the agreement was made. It is not objectionable that the contracting defendants have a right to pursue their cross-claims against the non-contracting defendants. However, since the structure of this type of agreement makes it in the interest of the contracting defendant that the plaintiff's damages be assessed as high as possible, procedural safeguards must be introduced to prevent any distortion and abuse of the judicial process. Accordingly, in the case at bar, the contracting defendants may not cross-examine on issues about the quantum of damages, except with leave.

The agreement in this case did not constitute champerty or maintenance. There was no improper purpose, no officious intermeddling with a law suit, and no stirring up of litigation. The agreement did not change the position of the parties on questions of liability, and both before and after the agreement, the contributing defendants had reasons for pursuing their cross-claims.

For the full decision, click to download:
Pettey v. Avis Car Inc. -- Text of Full Decision
(Adobe Acrobat [PDF] file - ~140K)

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Campbell v. Sorbara
September, 30 1988

Richard Bogoroch represented plaintiff Marlene Campbell in a case involving damages related to a tubal ligation procedure. 


 

Campbell v. Sorbara
[1988] O.J. No. 1600

September 30, 1988.
The Honourable Justice Matlow

Reasons for Decision:

The plaintiff brings this action for damages by reason of a right tubal ligation performed on her during the course of a caesarian section by the defendant, Donna M. Steele, under the direction of the defendant, Vincent James Sorbara, on March 4, 1985.

[. . .]

I have come to the conclusion that the plaintiff's complaint is justified and that she is entitled to succeed in this action. What follows are some of my findings of fact which have led me to this conclusion. [. . .] The written consent which the plaintiff signed before undergoing the procedure referred only to a repeat caesarian section which is what the plaintiff expected to undergo. There was nothing in this document which referred to a tubal ligation.

 

For the full decision, click to download:
Campbell v. Sorbara -- Text of Full Decision
(Adobe Acrobat [PDF] file - ~67K)

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