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Toronto Office

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Forget Smith brings together an experienced team of lawyers who exemplify the highest standards in the industry, delivering expert, responsible legal advice and client-oriented, technologically sophisticated services.

With offices in Toronto and Ottawa, Forget Smith provides bilingual advice and services throughout Ontario, including the Greater Toronto Area, the National Capital Region, Eastern Ontario, Southwestern Ontario and Northern Ontario.

Our practice focuses on all aspects of advocacy on behalf of insurers, including statutory accident benefits claims, commercial liability claims, road liability claims, motor vehicle litigation, personal injury and disability litigation, “slips and falls”, subrogated claims, coverage disputes, professional liability claims, homeowners’ property and liability claims, regulatory negligence, administrative law, and construction matters. 

Our team of lawyers have decades of collective experience, with over 75 trials, hundreds of reported decisions, and countless successful settlements to their credit.  Our lawyers also have extensive trial and appellate court experience, with regular attendances before the Superior Court, the Divisional Court, the Court of Appeal, the Supreme Court of Canada, the Environmental Review Tribunal, the Financial Services Commission, and other tribunals.  

Although we are proud of our record in court, we recognize that early and cost-effective resolution of cases may require innovative strategies to avoid and manage disputes.  Accordingly, our lawyers have particular expertise with a full range of alternative dispute resolution options, including negotiation, mediation, arbitration, and other customized ADR solutions.

By offering cost-management strategies without compromising our superior quality of service, we deliver value to our clients both in terms of results and cost-effectiveness.  In this way, every client file is handled not only with top-tier expertise but with a focus on the particular needs of the case, whether the client is locally based or a multi-national organization. 

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Recent Cases

Chevalier-Wara v. Economical Mutual Insurance Company, 2023 ONLAT 21-004455/AABS

Date of Decision: September 21, 2023

Case Summary:
The applicant was involved in a single-vehicle accident on June 25, 2017.  He applied for statutory accident benefits and sought catastrophic determination under Criterion 4 and monthly attendant care benefits.  The hearing proceeded over 5 days before Adjudicator Fogarty and included written closing submissions.  Adjudicator Fogarty ultimately found that the applicant did not sustain a catastrophic impairment and was not entitled to any monthly attendant care benefits, whatsoever.

The Tribunal reviewed the requirements for a finding of catastrophic impairment under Criterion 4 and noted the following requirements:

i) Using diagnostic technology, the applicant must show intracranial pathology results that were demonstrative of brain injury; and
ii) The injury shown must be caused by the accident at issue; and
iii) Using the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale (“the GOS-E”), the applicant must reach a certain level of disability (Level 5 – lower moderate disability one year or more after the accident)

It was not disputed that the applicant suffered from an intracranial brain injury that was caused by the accident.  The central issue for the Tribunal in determining whether a CAT impairment was made out was whether the applicant suffered a Level 6 (upper moderate disability – not grounds for a finding of catastrophic impairment) or Level 5 (lower moderate disability – sufficient for a finding of catastrophic impairment).  The GOS-E assessment findings of the applicant’s assessors and the respondent’s assessors differed in one, major area: whether the applicant’s brain injury resulted in his being unable to work, only being able to work in a sheltered or environment or only being able to work in a non-competitive workplace (all of which would be sufficient for a CAT finding) or if he suffered simply a reduced work capacity (which would not be sufficient for a CAT finding).

Adjudicator Fogarty found that the applicant suffered, at worst, a reduced work capacity.  She noted extensive documentary and viva voce evidence confirming that the applicant had sought work after the accident, been paid for casual, construction projects (similar to his pre-accident employment), turned down a psychotherapy appointment to perform “some cash work at a great wage”, applied to the Canadian reserves and generally became more active and engaged after the accident.  The adjudicator also found (at para 32) that: “…despite the TBI, the applicant seems to be thriving, from a personal growth perspective, in comparison to his pre-accident condition”.

As well, the adjudicator found that the applicant was not entitled to monthly attendant care.  She noted that he had taken up teaching jiujitsu to children in his community after the accident, that he had carried on taking care of his young daughter independently, maintained a strict diet without supervision to further his bodybuilding goals and that he generally exhibited “control over his executive functions who has trained himself to the pinnacle of his personal fitness goals”.  Lastly, she noted that the applicant himself had turned away all prior attempts by his family to provide him with attendant care assistance from shortly after the accident to the time of the hearing.

Finding that the applicant did not suffer a catastrophic impairment and that he was not entitled to attendant care benefits, Adjudicator Fogarty dismissed the LAT application in its entirety.


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