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Cases of note

Fernandes v. Penncorp Life Insurance Company 2013/2014

Case: Plaintiff was a bricklayer, who injured his back in a 2004 workplace accident; which made him unable to continue operation of his business despite attempts to do so into 2005. The plaintiff also tested poorly, had limited language skills and could not read blueprints, which made him unable to act as a brick-laying supervisor or having the ability to take on other work in a similar field.

Disability: The plaintiff collected disability benefits from 2004 onwards as he was no longer able to perform the required tasks to operate his business as a brick layer. In 2005, the defendants’ independent surveillance showed the plaintiff performing yard work, at which time the defendant ceased/terminated payment of monthly disability benefits.

Action: After numerous attempts at having his disability benefits reinstated, the plaintiff was unsuccessful, and looked to MCL. for assistance.

Outcome: Following numerous proceedings and appeals, the plaintiff was awarded: Trial Decision – Payment of contractual damages: $236,773 – Payment of punitive damages: $200,000 – Payment for mental distress/aggravated damages: $100,000 Court of Appeal – Affirmed punitive damages award and reduced mental distress/aggravated damages to $25,000 (amount claimed at trial) – Contractual damages not appealed Cost Decision – Plaintiff awarded costs on a full indemnity basis given the insurer’s unreasonable refusal to pay benefits.

Outcome summary:

Contractual damages:


Punitive damages:


Mental distress/Aggravated damages:


Lutes and MacPherson v. Air Canada and Jazz Air LP 2014

Case: A school social worker (Lutes) who developed chronic pain in years after being a passenger in an aircraft accident which involved a hard landing of the plane. Lutes noticed a headache before she left the airport, and subsequently pain in her back and neck that did not resolve as expected; pain increased over time.

Disability: By three years post-accident, Lutes had been forced to stop working full-time and greatly reduced other activities. She was in charge or her own treatment plan which included treatment from numerous professionals in many fields but her pain did not abate. She did not try injections to reduce her pain.

Action: Lutes and her husband (MacPherson) were seeking damages from Air Canada for personal injuries sustained by Lutes at the time of the accident. Lutes and MacPherson engaged MCL.

Outcome: Following litigation, Lutes was awarded: Trial Decision – Total payment of $1,012,497.00 in damages: – Payment of general damages: $110,000.00 – Payment of past income lost: $168,000.00 – Payment for future income and pension loss: $600,000.00 – Future care costs: $60,000.00 – Special damages to date: $46,497.00 – An OHIP claim: $3,000.00 – And a family law claim of $25,000.00

Outcome summary:



General damages:


Past income lost:


Future income and pension income lost:


Bains v. Wolski et al 2009

Case: The plaintiff, Bains, was involved in a motor vehicle accident with the defendant, Wolski, on Friday, October 15, 1999. Liability for the collision was admitted.

Disability: More than two years after the date of the accident, the plaintiff commenced an action for damages due to chronic pain and a mistaken diagnosis of a possible traumatic brain injury; the mistaken diagnosis occurred less than two years prior to the commencement of action.

Action: The action proceeded to trial to assess damages, where the jury awarded damages to the plaintiff for his non-pecuniary general damages, future wage loss and future home-care and maintenance needs.

Post-Trial: Following the verdict and assessment, the trial judge was asked to rule on the limitation defence as the action was not brought within two years of the accident. Result: the plaintiff’s claim survived and the ruling remained.

Outcome: Following jury trial and ruling on limitations: Trial Decision – Payment of non-pecuniary general damages: $65,000.00 – Payment for future wage loss: $200,000.00 – Payment for future home care and maintenance costs: $32,000.00
Post-Trial – Plaintiff’s claim survived.

Outcome summary:

General damages:


Future wage loss


Home care and maintenance: