Dismissed (3)

Administrative Law in Québec: Jurisdiction 

Mhaichar v. Commission des normes, de l’équité, de la santé et de la sécurité du travail2019 QCCA 2041 (39051)
Between 2007 and 2010, Ms. Mhaichar was the victim of an industrial accident, an automobile accident and a criminal offence. She filed claims for compensation with three administrative bodies: the Commission de la santé et de la sécurité du travail, the Société de l’assurance automobile du Québec and Indemnisation des victimes d’actes criminels. After spending many years before those administrative bodies, she filed an application for judicial review (mandamus) with the Québec Superior Court seeking an order to force the Commission des normes, de l’équité, de la santé et de la sécurité du travail to pay her $111,434.49 as an income replacement indemnity (plus interest) pursuant to a decision rendered by the Administrative Labour Tribunal on February 25, 2016. A judge of the Québec Superior Court declined jurisdiction and dismissed the application for mandamus. An appeal to the C.A. was dismissed. “The application for leave to appeal…is dismissed without costs.”

Criminal Law: Homicide; Reasonable Doubt 

Fogah v. R., 2018 ONCA 564 (39069)
Outside a bar in Toronto, Mr. Durant was fatally shot and Mr. Ruffolo shot in the leg. Mr. Fogah was charged with four offences and tried before a jury. The trial judge instructed the jury on reasonable doubt. The charge on reasonable doubt gave directions on the verdict to return if the jury did or did not believe Mr. Fogah’s evidence supported by the other evidence relied on by the defence, or if Mr. Fogah’s testimony or other evidence relied on by the defence did not leave them with a reasonable doubt of his guilt. The jury convicted Mr. Fogah of first-degree murder, aggravated assault and discharging a prohibited firearm with intent to wound. The C.A. dismissed an appeal from the convictions. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion to appoint counsel is dismissed. The application for leave to appeal…is dismissed.”

Insurance: SABS; Limitation Periods; Discoverability 

Economical Mutual Insurance Company v. Tomec2019 ONCA 882 (39017)
Ms. Tomec was stuck by a motor vehicle while she was walking on September 12, 2008. She applied to her insurer, Economical, and received statutory accident benefits for attendant care under s. 18 of the Statutory Accident Benefits Schedule — Accidents On or After November 1, 1996, and housekeeping under s. 22 of the SABS. At the end of 104 weeks, those benefits were no longer available unless the beneficiary was designated as “catastrophic”: SABS, ss. 18(3) and 22(4). On August 26, 2010, Economical advised Ms. Tomec her eligibility for the benefits would end on September 12, 2010. It is common ground her injuries did not meet the criteria for catastrophic impairment at that time, so her physician did not apply for the designation and she did not appeal the termination of benefits to the Licence Appeals Tribunal. However, her condition worsened over time and, on May 13, 2015, her physician concluded she had become catastrophically impaired as a result of the accident. Economical accepted that opinion on November 4, 2015, and, on that basis, provided various elevated statutory benefits. However, it refused to provide further past or future attendant care and housekeeping benefits on the grounds it had denied the benefits in August 2010 and Ms. Tomec was out of time to appeal the denial. Ms. Tomec appealed Economical’s decision to the Tribunal, which found the August 2010 letter was a clear, unequivocal denial of the SABS benefit, triggering the two‑year limitation period (Smith v. Co‑Operators General Insurance Co., 2002 SCC 30) and the discoverability doctrine did not apply. Ms. Tomec’s application for judicial review was denied by the Divisional Court. On appeal, the C.A. held the limitation period was subject to the discoverability rule, so Ms. Tomec was able to apply for the enhanced benefits. “The application for leave to appeal…is dismissed with costs.”