Brown & Partners LLP SABS Summaries October 2017

Transcription

1 Case Name Abdirahman Abyan v. Sovereign General Insurance Company, FSCO A Date September 14, 2017 Date of Loss June 19, 2015 Arbitrator Benjamin Drory Issues Is the MIG in violation of the Charter of Rights and Freedoms? The applicant was injured in a MVA on June 19, The applicant alleged to have been suffering from Chronic pain as a result of the accident. No parties attended on behalf of Sovereign, or the AG of Ontario/Canada. The applicant argued that s. 3 (definition of minor injury ) and s. 18 (monetary limit) of the SABS together violate s. 15(1) of the Charter which states every individual is equal before and under the law and has the right to equal protection and benefit of the law without discrimination based on physical ability. The applicant submitted that s. 3 &18 of the SABS together draw discriminatory distinctions against those who suffer from chronic pain and those who had pre-existing conditions that were not documented by a health practitioner before the accident. Arbitrator Dory found that section s. 3 &18 of the SABS did violate s. 15 of the Charter, and the violation was not justified by s. 1 of the Charter. The remedy was to sever the phrase clinically associated sequelae from the definition of minor injury so that the applicant who suffered chronic pain would not fall within the definition of minor injury, and therefore not be subjected to the $3,500 cap. But note, this decision was only applicable to the case at hand, and was not a declaration of general invalidity applicable to other cases. Additionally, had someone attended on behalf of the AG of the insurer, the decision may have been different. Yes, the MIG is in violation of the Charter of Rights and Freedoms. Arbitrator Dory found that the MIG violates s. 15 of the Charter on two grounds: 1. It discriminates against those who suffer chronic pain as a clinically associated sequelae to the MVA 2. It discriminates against those who did not/ could not have their preexisting conditions documented by a health practitioner before the MVA. Arbitrary Dory further found that the MIG does not minimally impair the rights of individuals who suffer chronic pain as clinically associated sequalae of a MVA, and thus the infringement of s.15 is not justified by s. 1 of the Charter. In regards to undocumented pre-existing conditions, this violation was also not justified under s. 1of the Charter. Arbitrator Dory found that people without a doctor, or who had pre-existing but asymptomatic conditions are essentially prevented from accessing the usual $65,000 cap, which is discriminatory.

2 Case Name Stranges and State Farm, FSCO A Date September 14, 2017 Date of Loss September 17, 2004 Arbitrator Benjamin Drory Issue(s) Is the applicant entitled to payment for the balance of the cost of a CAT assessment, being $11,599.99? The total amount of the OCF-18 at issue was $23, State Farm partially approved it, to $11,500. The balance of $11,599 was in dispute. The insurer approved $2,000 each for reports from a physiatrist, psychologist, O.T. for an ADL, O.T. for an FAE, and for the file review. It approved an additional $200 for completion of the claims forms. The insurer denied $2,000 each for psychometric testing, an assessment of motor skills, WPI formulation, and consensus CAT opinion, as well as $ for travel. The applicant is not entitled to the cost of examination. The $2,000 cap for each assessment set out in s. 25(5) of the new SABS applies, as the examination was conducted after August 31, Pursuant to s. 25(1)5, the applicant has to establish that the fees were reasonable. The fees denied by the insurer were not reasonable. The applicant led no evidence on point. Dividing the claimed amounts maximum hourly amounts per specialty under the Guidelines, the psychometrist spent hours, the consensus formulation took hours, and the O.T. assessments took hours. Further, the report did not reference psychometric testing or the WPI formulation. Finally, travel time is included in the maximum fees allowed. The insurer s denial was appropriate, as the proposed fees are not reasonable.

3 Case Name Aloysius and Royal SunAlliance, FSCO P Date September 15, 2017 Date of Loss January 31, 2003, December 10, 2005, May 8, 2006 Arbitrator Edward Lee Issue(s) Did the Arbitrator err in his decision of September 30, 2015? Applicant injured in three accidents between 2003 and Arbitrations were heard jointly. Arbitrator found the Applicant was CAT from the 2003 accident and is entitled to housekeeping but not attendant care from that accident; claims for attendant care and housekeeping from the 2005 and 2006 accidents were barred by s. 32. He concluded the request for benefits starting in 2014 violated the section. Applicant appealed, claiming he erred in denying his claims for (1) attendant care benefits, (2) the cost of treatment by Dr. Hoff, and (3) a special award. The Insurer cross-appealed. 1. The claims for Attendant Care Benefits arising from the accidents of December 10, 2005 and May 8, 2006 are not barred by the operation of section 32 of the SABS. 2. The balance of the decision is upheld. 3. These issues, if re-heard, must be re-heard by an arbitrator other than Arbitrator Mutch. 4. Cross-appeal is dismissed. Despite the Arbitrator s finding that this was a flagrant violation, an insured need not apply for every individual accident benefit to which he might be eventually entitled in his initial application for accident benefits. Many insured persons undergo a long and complex course of rehabilitation and treatment following their accident. This may result in a continuing, ongoing, and possibly long-term process whereby an applicant applies for individual accident benefits and the insurer responds by adjusting the claim and the file. This was the approach adopted by the Arbitrator in the decision of T.N. and Personal Insurance Company of Canada. Having already determined that the initial application for accident benefits did not breach section 32, the Arbitrator erred by applying the date of the accident as the commencement of the delay period for the individual accident benefit of attendant care. In any event, the notices provided by the insurer regarding section 32 did not comply with Smith v. Cooperators. Based on the evidence before him, it was open for him to determine that the attendant care sought was for the supervision of the making of meals. The Arbitrator considered such care neither reasonable nor necessary.

4 Case Name State Farm and Sabadash, FSCO P Date September 18, 2017 Date of Loss March 3, 2011 Adjudicator Director s Delegate David Evans Issue(s) Did the arbitrator fail to recognize the but for test regarding causation? The applicant had a number of significant pre-accident medical conditions, including childhood sexual abuse, anxiety, depression, insulindependent diabetes, gait and balance issues and loss of sensation in his feet. After the accident, he continued working for 7 months until his employment was terminated. He is seeking pre- and post-104 week income replacement benefits. The insurer s main defence was causation. Counsel for the insurer and the arbitrator discussed the relevant causation test, but the arbitrator ruled against the insurer. Irrespective of the Court of Appeal s recent decision in Blake v. Dominion of Canada General Insurance Company, 1 the arbitrator followed the Court of Appeal s earlier decision in Monks v. ING Insurance Co. of Canada 2 and applied the material contribution test. State Farm appealed, arguing the arbitrator was biased against it and erred in applying the wrong legal test. Appeal granted. The matter must be returned for a fresh hearing before a different arbitrator. The Supreme Court of Canada has reaffirmed that the primary causation test is the but for test, and the Ontario Court of Appeal accepted that in Blake. The but for test is the default test. It applies where both the pre-existing condition and the injury arising from the accident were necessary contributing causes for the impairment to arise. The material contribution test is only applicable in the rare circumstance where either of two causes could be sufficient cause of the impairment where the accident alone could have been a sufficient cause and a preexisting condition alone could have been a sufficient cause of the impairment ONCA ONCA 269

5 Case Name v Northbridge Personal Insurance Corporation, 2017 CanLII (ON LAT) Date September 20, 2017 Date of Loss July 12, 2013 Adjudicator Gregory Flude Hearing Type Oral Issue(s) What is the impact of s. 61 of SABS on the applicants entitlement to accident benefits? On July 12, 2013, the applicants HS and SH were involved in a MVA during the course of their employment. The applicants elected to join a class action lawsuit rather than claim benefits under the WSIA. As such, they were entitled to apply for no-fault benefits from the respondent insurer pursuant to SABS, which they did receive. When the class action was dismissed and the appeal of the dismissal was unsuccessful, the insurer took the position that the applicants were no longer eligible for accident benefits because they had no valid court action. The applicants should therefore be required to seek compensation under the WSIA. The applicants have been entitled to receive benefits under the SABS since they made their election. The outcome of the WSIA litigation has no impact on that entitlement. To determine this matter, one must examine the applicants election not to seek compensation under the WSIA but to join the class action law suit. To be entitled to accident benefits, the election must not be made primarily for the purpose of claiming benefits under SABS. Should the applicants` election pass the primary purpose test, the next question is whether the outcome of the litigation can nullify that election and require the applicants to seek compensation under the WSIA scheme. Having weighed all of the evidence and submissions of the parties, there was no support in the legislation for the insurer s position. The applicants elected to join a court action; they did so after consulting with a lawyer and the legal advice they acted on suggests a good likelihood of success. The range of potential compensation from a successful lawsuit exceeded the compensation available to the applicants under the WSIA. Further, s. 61 of the SABS does not import a retroactive component. It focusses solely on the period when the election to sue is made and does not contemplate a retroactive impact of the final result of the court action.

6 Case Name Dadi and Aviva, FSCO A Date September 20, 2017 Date of Loss June 10, 2015 Arbitrator Charles Matheson Issue(s) 1. Is the applicant entitled to a medical benefit? 2. Is the applicant entitled to a special award? The insurer denied the treatment plan in dispute, based on the MIG. The insurer subsequently accepted that the applicant falls outside the MIG, based on his concussion. The insurer continued to deny the treatment at issue, on the basis that at the time of the plan, the applicant remained in the MIG. The do not provide any details of the proposed treatment. Contemporaneous records revealed ongoing concussion symptoms. The only IME on the treatment plan was conducted by a physiotherapist, who did not have or request those records even though the applicant reported the concussions symptoms to him. Arbitrator Matheson refused to qualify the physiotherapist on the issue of concussion, as he does not have the requisite expertise. 1. The applicant is entitled to the medical benefit at issue. 2. The applicant is not entitled to a special award. The applicant does not fall within the MIG, and should have been removed from the program much earlier. The treatment plan in dispute is reasonable and necessary. Arbitrator Matheson does not provide details about his refusal to grant a special award, stating only that the insurer s conduct did not rise to the requisite level to support such an award.

7 Case Name Sanmugarajah and Nordic, FSCO A Date September 20, 2017 Date of Loss November 9, 2006 and February 2, 2007 Arbitrator Issue(s) James Robinson 1. Is the applicant catastrophically impaired as a result of either accident? 2. Is the applicant entitled to attendant care benefits for various periods? 3. Is the applicant entitled to housekeeping benefits? 4. Is the applicant entitled to various medical/rehabilitation benefits? 5. Is the applicant entitled to the cost of an examination? 5. Is the applicant entitled to a special award? The 46 year-old applicant he suffered depression and anger management issues before the accidents. He received psychiatric treatment from 2002 onward. In the 2 years before the first accident, he also reported back pain to his family doctor on an intermittent basis. However, he was gainfully employed during that period, with no indication of a pre-existing disability. After the accidents, he complained of chronic pain. The first accident happened when a left turning vehicle struck the applicant s car. The second accident happened about 3 months later, when the applicant s car struck vehicle that was making a u-turn in front of him. The applicant testified that the second accident caused more significant pain, and an aggravation of his depression. He did not return to work after the first accident. Arbitrator Robinson found the applicant credible. Any discrepancies between his testimony and the contemporaneous records and reports stemmed from his poor grasp of the English language and frailties of his memory, rather than a deliberate attempt to mislead. 1. The applicant is catastrophically impaired as a result of the second accident. 2. The applicant is not entitled to attendant care benefits. 3. The applicant is not entitled to housekeeping benefits. 4. The applicant is entitled to the medical/rehabilitation benefits at issue. 5. The applicant is entitled to the cost of examination. 6. The applicant is not entitled to a special award. 1. The applicant s chronic pain and psychiatric issues render him catastrophically impaired. Dr. Rosenblat diagnosed not only a major depressive disorder, but also PTSD and a pain disorder with both psychological factors and a general medical condition. He found moderate impairments in ADLs, social functioning, and concentration, persistence and pace. He concluded the applicant suffers a marked impairment in adaptation. Dr. Hines conducted the psychiatric portion of the CAT IMEs, one for each accident. He diagnosed a major depressive disorder, finding the applicant suffers mild impairments in all 4 spheres, as a result of each accident. Dr. Becker prepared a rebuttal report, pointing out that: (a) the discrepancy between the finding of marked v. mild impairment in adaptation is unusual; and (b) it is methodologically unorthodox to try to

8 differentiate the consequences of the 2 accidents that happened more than 3 years before the assessment. Arbitrator Robsinson agreed, also pointing out a factual flaw in Dr. Hines report. Arbitrator Robinson cites the applicant s presentation at the arbitration as further evidence in support of his finding, calling the second accident the tipping point in the applicant s condition. 2. The applicant s claim for attendant care benefits failed because she did not submit an claim for attendant care (i.e. an assessment of attendant care needs) prior to filing an application for mediation. The mediation was therefore a nullity, and the arbitration could not proceed on that issue. 3. The applicant s claim for housekeeping benefits failed because the application for mediation was filed outside the limitation period (the denial was issued December 3, 2007, effective December 25, 2007, but the application for mediation was not until November 1, 2012). 4. The medical and rehabilitation benefits at issue including physical and psychological treatment. Arbitrator Robinson agreed the treatment is reasonable and necessary, given its alleviation of pain and potential benefit to the applicant s improvement and recovery. 5. The cost of examination at issue was for a nutritional assessment. This was not seriously argued at the arbitration, with no position taken that an improved diet would not benefit the applicant. 6. The issues in the arbitration were justiciable, and the insurer acted reasonably.

9 Case Name Travelers Insurance Co. v. CAA Insurance Co., 2017 ONSC 5659 Date September 22, 2017 Date of Loss July 20, 2014 Justice Issue(s) Favreau 1. Did the parties have a binding arbitration agreement allowing for appeals on issues of law or mixed fact and law? 2. If the parties did not have such an agreement, should leave be granted to appeal the Arbitration? The draft arbitration agreement stated that the parties agreed to submit to arbitration pursuant to the Insurance Act and Arbitration Act. Due to confusion between counsel, it was unsigned. The parties participated in an arbitration before Mr. Bialkowski who found that Travelers had priority. The parties entered into an arbitration agreement that permits either party to appeal the Arbitration without leave on questions of law or mixed fact and law. In any event, it would be an appropriate case in which to grant leave to appeal from the Arbitration on that issue. It is clear that it was the intention of the parties to enter into an arbitration agreement that provided for a right of appeal on issues of law or mixed fact and law. CAA s intention to do so is evident from Mr. Pollack s letter and the draft agreement wherein the terms of the agreement he proposed included such an appeal provision. Mr. Pollack has provided no evidence that his client sought to alter or remove the appeal provision. Traveler s intention is evident from Ms. Henneberry s evidence on this motion that she verbally communicated that she was satisfied with the draft arbitration agreement during the first conference call with the arbitrator, as supported by her contemporaneous note. I note that it is especially disingenuous for CAA, having been successful on the arbitration, to seek to resile from the appeal provision when it was the party that drafted the agreement and proposed the provision. Travelers entitled to costs of $3,500.

10 Case Name Doyon and Allstate Insurance Company of Canada, FSCO P Date September 25, 2017 Date of Loss February 9, 2009 Arbitrator Director s Delegate Jeffrey Rogers Issue(s) Entitlement to attendant care benefits and cost of marijuana and growing equipment. The applicant was injured in a MVA on February 9, The arbitrator awarded $865/month for attendant care benefits. The applicant appealed this on the basis that arbitrator engaged in a process of final offer selection. The applicant claimed payment for growing equipment and marijuana. The arbitrator awarded payment for the drug but nothing for the equipment as payment for both would be duplication. The applicant appealed on the basis that, according to the agreed statement of facts, there was no dispute between the parties about duplication. The insurer agrees but argues it was nevertheless open to the arbitrator to decide as he did. The insurer also appealed the arbitrator s decision on the basis that the award for the drug was too high, because there was no evidence to show that the applicant incurred that amount. The insurer and applicant s appeals are dismissed. Attendant Care Monthly Entitlement The arbitrator did not engage in a process of final offer selection. He accepted the insurer s Form 1 because the recommendations were in keeping with his assessment of all of the evidence. The arbitrator followed Whyte and State Farm, a decision that says it is not the arbitrator s task to reconstruct the Form 1. This was a finding he was entitled to make. Payment for Medical Marijuana and Growing Equipment Looking only at the issues stated in the agreed statement of facts, there was nothing to limit the arbitrator s discretion in any way. Further, the arbitrator found that the applicant purchased marijuana beyond the scope of her license, but nevertheless awarded payment. This took him beyond the scope of the parties agreement. The applicant is content with the arbitrator exceeding the agreed issues in this respect so she cannot have it both ways. It would be unfair in the circumstances to limit the exercise of his discretion to the confines of the agreed statement of facts. There was no legal error in the arbitrator s finding of fact that the applicant consumed 4 grams of marijuana/day. There was also no legal error in his adoption of a common sense approach to fixing the cost by looking to evidence that marijuana bought through Health Canada costs $5.00/gram. He is entitled to make such a finding of fact, and is not limited to using receipts.

11 Case Name Spence and RBC General Insurance Company, FSCO P Date September 26, 2017 Date of Loss November 20, 2006 Arbitrator Director s Delegate David Evans Issue(s) Is the applicant entitled to $62, for the cost of constructing a residential aqua therapy pool? The applicant was injured in a MVA on November 20, The accident aggravated his pre-existing chronic pain condition, now his chief complaint. Aqua therapy was recommended to allow the applicant to exercise without exacerbating his plain. The applicant then applied for med/rehab benefits to construct his own pool in order to access daily therapy. The arbitrator found the home pool to be not reasonable and necessary. The cost of the pool was excessive, and the goals of the treatment plan did not necessitate the convenience of a home therapy pool. The applicant appeals from the arbitration decision. The arbitration decision is affirmed and the applicant s appeal is dismissed. The cost of a home pool was not reasonable and necessary. Arbitrator Muzzi did not fail to consider relevant evidence. The applicant submitted that the arbitrator ignored the evidence that healthcare professionals recommended the residential pool. To the contrary, she recognized that some doctors recommended the benefits of a residential pool, but others did not. It was within her role as arbitrator to prefer the evidence of one witness over another. The applicant also argued that the arbitrator erred by considering irrelevant factors such as the cost of the pool. The applicant also argues that she failed to consider the purpose of the pool, which was to give the applicant access to daily treatment without having to missing work. However, the cost of the pool was a relevant factor, while the loss of wages was only temporary. It was up to the arbitrator to weight the balance between the cost of the pool and the lost wages. Finally, the applicant argued that the arbitrator erred by taking the all or nothing approach. However, there was no evidence before the arbitrator to arrive at any other figure, so there is no error in this regard.

12 Case Name Progressive and Sidhu, FSCO P Date September 28, 2017 Date of Loss March 10, 1997 Arbitrator Delegate Jeffrey Rogers Issues Appeal from a previous arbitration decision. Can the insurer rely on the Doctrine of Laches to enforce a settlement? The Arbitrator correctly concluded that Mr. Sidhu s statutory right is a legal right. Therefore, the Doctrine of Laches does not apply. Mr. Sidhu was injured in a motor vehicle accident on March 10, He applied for statutory accident benefits from the insurer. He applied for mediation after disputes arose about his entitlement to certain claimed benefits. Mediation took place on June 1, There, the parties agreed to resolve all claims for statutory accident benefits upon the insurer paying Mr. Sidhu $27,500. On June 10, 2014, counsel for Mr. Sidhu notified Progressive that he rescinded the 2004 settlement. Mr. Sidhu s rescission of the settlement was based upon Progressive s failure to give him a Settlement Disclosure Notice. In doing so, he exercised rights conferred by the Settlement Regulation in circumstances where a purported settlement does not comply with its terms. He then applied for arbitration claiming various benefits. Progressive took the position that the arbitration should be dismissed by operation of the Doctrine of Laches. The Arbitrator found that the right that the Settlement Regulation confers is a legal one, and not an equitable right. He therefore concluded that the Doctrine does not apply. The insurer appealed. The Doctrine of Laches is an equitable remedy. The question is whether this equitable remedy can be applied to limit Mr. Sidhu s statutory right to rescind. Although the remedy of rescission has its origin in equity, the right which Mr. Sidhu exercised, although called rescission, is entirely a statutory creation. The Settlement Regulation imposes a statutory obligation upon an insurer to give an insured person an SDN containing specific, prescribed information. It gives the insured person the absolute right to rescind the agreement within 2 days. It also gives the insured person the right to rescind at any later date, if the insurer has not complied with the SDN provisions. The insurer could not prove an SDN was provided. As Mr. Sidhu exercised a statutory right, the insurer could not rely on the equitable remedy of the Doctrine of Laches to bar the statutory rights conferred upon Mr. Sidhu.

13 Case Name Condison and T.D., FSCO A Date October 12, 2017 Date of Loss August 1, 2013 Arbitrator Issue(s) Lynda Tanaka 1. IRBs 2. Medical and rehabilitation benefits 3. A cost of examination The applicant s testimony was inconsistent on a variety of issues, including his pre- and post-accident employers and income. He failed to advise his LTD carrier that he was eligible for IRBs, and failed to advise the insurer that he applied for LTD after the accident. He failed to advise the insurer that he returned to work, and collected IRBs during the period that he was working. Accordingly, neither his testimony nor that of his experts could be relied upon. Further, the applicant s experts failed to report on causation in their reports. Their evidence on that issue was not admissible. The family doctor failed to describe any functional impairments on the CPP disability application form, and he admitted to having no familiarity with the AMA Guides when he signed the OCF-19 stating the applicant suffers a 55% WPI. Although Arbitrator Tanaka found that the applicant exaggerates his symptoms, she accepted he suffers from chronic pain. 1. The applicant is entitled to the interest that accrued on the $ IRB paid weekly for the period August 8, 2013 to October 30, The insurer paid the benefit for that period on March 29, The applicant is entitled to interest on any med/rehab benefits paid between the time of the pre-hearing and the date of the hearing. 3. The applicant is not entitled to the cost of examination. 1. The applicant did not establish entitlement for additional IRBs. However, the insurer did not pay the IRB until March 29, It did not pay interest at that time, because it had no record of receiving the OCF-3 until then. However, at the arbitration the applicant established that the OCF-3 was delivered in September Accordingly, interest was payable. 2. The insurer paid the maximum non-cat limits on med/rehab. There is no authority for the arbitrator to order additional payment in a non-cat claim. 3. The applicant led no evidence to support his claim for the cost of an x- ray.

14 Case Name M.R. v. Aviva, 2017 CanLII (ON LAT) Date September 14, 2017 Date of Loss January 24, 2014 Adjudicator Rebecca Hines Hearing Type Written and teleconference Issue(s) Is the applicant entitled to non-earner benefits? The applicant, age 21, was involved in 3 prior motor vehicle accidents which resulted in soft tissue injuries, adjustment disorder with anxiety and depression and chronic pain. Following the subject accident, she was diagnosed with an exacerbation of her pre-existing condition, post-traumatic stress disorder and cognitive disorder. The insurer relied on its multi-disciplinary assessment in which 3 of the 4 assessors did not find that the applicant suffered a complete inability to carry on a normal life. The 4 th s. 44 assessor, psychologist Dr. Valentin, concluded that she suffered a complete inability to carry on a normal life from the accumulative effect of all 4 accidents and the 2014 accident was a contributing factor to her complete inability. The applicant is not entitled to non-earner benefits. The applicant did not provide an thorough analysis of the activities she could not before the accident compared to those she cannot do postaccident. The applicant argued that the adjudicator must consider the quality of the performance, not just the activities performed. However, her school records showed improved academic performance post-accident. Adjudicator Hines found credibility issues with the applicant s claim that she was forced to move back home with her parents because she could not take care of herself. She lived on her own for 27 months post-accident and her move coincided with the end of school and her marriage. The applicant relied on Dr. Valentin s s. 44 report and a s. 25 psychological report by Dr. Lee. However, Dr. Valentin did not analyze the applicant s pre-accident activities and both assessors admitted in cross examination they were missing important information that may have changed their opinions (ie. 3 prior claims for non-earner benefits, academic performance).

15 Case Name v. Aviva Insurance Canada, 2017 CanLII (ON LAT) Date September 14, 2017 Date of Loss January 20, 2016 Adjudicator Meray Daoud Hearing Type Written Issue(s) Was the applicant involved in an accident as defined in section 3(1) of the Schedule? According to the applicant s EUO testimony, on January 20, 2016, she was a passenger who disembarked from a vehicle which stopped to drop her off in front of her building of residence. She closed the car door and then took three to four steps towards the front of the building, when she tripped over an uneven curb. The applicant sustained injuries to her hand, right shoulder and low back. The curb that goes right around the building was in need of repair, which inevitably was done a week post- incident. On the day of the incident there was a sign which read WATCH YOUR STEP on top of an orange pylon on the sidewalk where she was dropped off. The applicant was not involved in an accident. Based on the causation test in Chisholm and Greenhalgh, it is not sufficient to link the direct cause of the injury to the vehicle involved, merely by the fact that it brought the applicant to the location of the incident. On the contrary, it is the use or operation of the automobile that must have directly caused the injury. If the chain of causation is broken by an intervening act, it cannot be said that the use or operation of the vehicle was the direct cause of the injuries. There was a broken chain of causation between the use and operation of the vehicle which the applicant disembarked, and the injuries she sustained in this case. The evidence shows that the applicant did not slip and fall immediately upon disembarking. There was an intervening act namely the tripping on an uneven curb, which resulted in the applicant s injuries. There was a separation in distance and time from the disembarkation from the vehicle and the subsequent slip and fall. The location, use and operation of the vehicle were not the direct cause in this case. The location and orientation of the vehicle in which the applicant disembarked, even with the possibility of it creating an obstacle of some form, is not enough to shift the nature of the liability from occupier s liability to an automobile accident benefits issue.

16 Case Name v. Aviva, 2017 Canlii (ONT LAT) Date September 14, 2017 Date of Loss January 21, 2016 Adjudicator Nicole Treksler Hearing Type Written Issue(s) Do s. 33 and 55 bar the applicant from proceeding with her claim for IRBs and a medical benefit? The applicant refused to attend the first physiatry IME requested by the insurer, on the basis that she provided enough medical documentation to allow the insurer to adjust the file. The applicant attended an EuO on August 15, On the advice of counsel, she refused to answer some questions. She refused because the questions were either irrelevant to her entitlement to IRBs, or she had already provided the information to the insurer. Adjudicator Treksler does not specify the questions refused, but does note that the applicant provided the insurer with her employment file, clinical notes and records of treating doctors, OHIP summary, income tax returns, and collateral benefits file. The applicant cannot proceed with her claim until she attends the IME. Her claim is not barred by s. 33. Adjudicator Treksler rejected the applicant s argument that she did not have to attend the physiatry IME, because she had provided sufficient medical evidence for the insurer to adjust the file. The insurer s request for an IME was reasonable. On the other hand, the applicant had provided sufficient documentation to allow the insurer to adjust the claim for IRBs. She was not required to answer the questions posed on the EuO.

17 Case Name v. Northbridge Personal Insurance Corporation, 2017 CanLII (ON LAT) Date September 20, 2017 Date of Loss July 12, 2013 Adjudicator Gregory Flude Hearing Type Oral Issue(s) What is the impact of s. 61 of SABS on the applicants entitlement to accident benefits? On July 12, 2013, the applicants HS and SH were involved in a MVA during the course of their employment. The applicants elected to join a class action lawsuit rather than claim benefits under the WSIA. As such, they were entitled to apply for no-fault benefits from the respondent insurer pursuant to SABS, which they did receive. When the class action was dismissed and the appeal of the dismissal was unsuccessful, the insurer took the position that the applicants were no longer eligible for accident benefits because they had no valid court action. The applicants should therefore be required to seek compensation under the WSIA. The applicants have been entitled to receive benefits under the SABS since they made their election. The outcome of the WSIA litigation has no impact on that entitlement. To determine this matter, one must examine the applicants election not to seek compensation under the WSIA but to join the class action law suit. To be entitled to accident benefits, the election must not be made primarily for the purpose of claiming benefits under SABS. Should the applicants` election pass the primary purpose test, the next question is whether the outcome of the litigation can nullify that election and require the applicants to seek compensation under the WSIA scheme. Having weighed all of the evidence and submissions of the parties, there was no support in the legislation for the insurer s position. The applicants elected to join a court action; they did so after consulting with a lawyer and the legal advice they acted on suggests a good likelihood of success. The range of potential compensation from a successful lawsuit exceeded the compensation available to the applicants under the WSIA. Further, s. 61 of the SABS does not import a retroactive component. It focusses solely on the period when the election to sue is made and does not contemplate a retroactive impact of the final result of the court action.

18 Case Name v. Co-operators General Insurance Company, 2017 CanLII (ON LAT) Date September 21, 2017 Date of Loss November 9, 2014 Arbitrator Deborah Neilson Hearing Type Issues Written Is the applicant statute-barred from bringing an application for income replacement benefits, as the application was filed more than two years since the date of denial? The Applicant is not statute-barred from bringing her application for IRB s because the limitation period did not start on March 5, The applicant applied to the Tribunal before the limitation period expired. The Tribunal received the applicant s application on March 6, The respondent alleges that the limitation period started to run on March 5, 2015 and that the applicant was required to file her application with the Tribunal no later than March 5, The respondent sought an order dismissing the applicant's claim for IRBs on the basis that the applicant has missed the limitation period. The limitation period does not start to run until an insurer gives written notice of its refusal to pay the benefits claimed and the reasons for its refusal. The real issue is whether the limitation period started on March 5, 2015 and also whether the applicant applied in time to the Tribunal. The respondent paid the applicant IRBs of $ per week from November 16, 2014 until March 5, The applicant tried three different times, without success, to file the application with the Tribunal by facsimile transmission on March 3, There is also no dispute that the Tribunal received the applicant s application on March 6, 2017 by way of facsimile transmission. What is in dispute is when the limitation period starts to run. The insurer s evidence was that on March 5, 2015, he wrote to the applicant and advised that her entitlement to IRBs would cease as of March 5, He enclosed reasons for the refusal and an explanation that the applicant could dispute the refusal. The applicant submitted that the requirement that the notice of the refusal must be provided to the insured means that the limitation period does not start until the applicant receives the notice. The issue is when the applicant received this notice. In this case, there was no evidence as to how the denial was sent or when the applicant received it. The arbitrator found it was likely sent by regular mail. The arbitrator found the notice was received after March 5, 2015, which is supported by s.64 of the Schedule, which states that notice sent by regular mail is deemed to be received on the 5th business day after it was sent.

19 Case Name v. Aviva, 2017 CanlII (ONT LAT) Date September 22, 2017 Date of Loss January 30, 2015 Adjudicator Linda Lamoureux, Executive Chair Hearing Type Reconsideration Issue(s) 1. Did the insurer s denial provide a medical reason? 2. What are the consequences of the insurer s failure to state that it believes the MIG applies? Two applicants commenced the proceeding, each claiming that the insurer failed to comply with its obligations under s. 38(8) of the SABS. Mr. applicant received 2 explanation of benefits, dated September 15 and 16, The insurer denied the proposed treatment because The frequency of care does not diminish over time. At first instance, the Tribunal held this phrase does not constitute a medical reason within the meaning of s. 38(8). Further, the EoBs did not state that the insurer believed the MIG applies. Accordingly, the Tribunal found that the insurer cannot rely on the MIG, and found the OCF-18 payable. Mrs. applicant received an EoB referencing the $3,500 MIG cap. The portions of the SABS dealing with the MIG were enclosed. The EoB did not state that the insurer believed the MIG applies. Accordingly, the Tribunal found that the insurer cannot rely on the MIG, and found the OCF-18 payable. Reconsideration was granted only with respect to one of the treatment plans at issue. The decision to award the full amount claimed was overturned. The applicant was only entitled to the treatment incurred between the date the treatment plan was submitted and the date it was denied. Executive Chair Lamoureux upheld the Tribunal s decision that the insurer s failure to comply with the statutory requirements precludes it from relying the MIG for the balance of Mr. and Mrs. applicant s claims. The language of s. 38(8) of the SABS is clear in that regard. Further, this reading is consistent with practice, as when an insurer makes a MIG determination, it does not apply to just one particular treatment plan; it applies to the entire claim. It is also consistent with the purpose underlying the SABS, being certainty around cost and payment for treatment. Consequently, the entirety of the impugned OCF-18s were payable, subject to one exception. Executive Chair Lamoureux accepted the insurer s position that one of the OCF-18s pertaining to Mr. applicant was only partially payable. The insurer s obligation was limited to the amount incurred between the 11 th day after the application and the date of its revised EoB, which formed a proper denial, pursuant to s. 38(11)2.

20 Case Name v. Aviva, 2017 CanlII (ONT LAT) Date September 22, 2017 Date of Loss November 13, 2015 Adjudicator Avvy Go Hearing Type Written Issue(s) Is the applicant barred from proceeding to a hearing under s. 55(3) of the Tribunal rules for failure to comply with the insurer s request under s of the SABS? The applicant seeks ACB for services provided by an R.N., under a Form 1 completed in June The IME conducted in August 2016 found the applicant entitled to ACB, at a lesser rate. The insurer paid the benefit from June to August, denying thereafter because the applicant and service provider failed to provide requested information including the date, time and frequency of attendances, as well as details of the services performed. Despite many requests, the applicant did not provide the information prior to commencing the LAT proceeding. The applicant must provide the requested information before the matter can proceed. The Form 1s do not simply set out a monthly amount required to fund attendant care. The amount is calculated based on the number of minutes per week that a provider has to spend performing a specific task, at a specified cost. The applicant is required to provide the insurer with sufficient information to determine if the care claimed is in accordance with the Form 1.

21 Case Name v. Intact, 2017 CanLII (ON LAT) Date September 27, 2017 Date of Loss January 23, 2016 Adjudicator Rebecca Hines Hearing Type In writing and in person Issue(s) Was the applicant involved in an accident? The applicant drove her kids to a birthday party at Sky Zone and parked her minivan in their parking lot. Upon leaving Sky Zone, while walking through the parking lot towards her minivan, she tripped in a pothole a few steps away from her vehicle. She fell to the ground and sustained injuries. She did not come into contact with the vehicle. The applicant was not involved in an accident. Simply walking towards a vehicle does not satisfy the purpose test. The incident did not arise out of the use or operation of an automobile. Tripping in the pothole, not the minivan, was the cause of the applicant s injuries. This intervening act caused the applicant s injuries. The use or operation of an automobile did not directly cause the impairment.

22 Case Name Co-operators General Insurance Company v. Doobay, 2017 ONSC 5804 Date September 29, 2017 Date of Loss April 27, 2009 Justice J.W. Sloan Issue(s) Is the defendant allowed to resile from a settlement agreement reached during a FSCO arbitration? The plaintiff was involved in a MVA on April 27, 2009 and applied for arbitration through FSCO. During the hearing, a settlement was reached. Later that same day, the defendant sent correspondence seeking to resile from the settlement. The plaintiff sought judgment in accordance with the terms of the settlement. The plaintiff argues that once an insured has counsel and there is an adversarial process in progress (mediation, arbitration, court action), the cooling period does not apply. In other words, there was an oral 49 Offer and s does not apply in tandem. The defendant sought to have the plaintiff s motion dismissed on the basis that the settlement was rescinded in accordance with s. 9.1 of the Ontario Regulation 664. The plaintiff s motion to enforce the settlement agreement is dismissed with costs. However, the parties are free to continue with the arbitration. In this case, the clause containing the two day cooling off period was attached and formed part of the proposed settlement documentation signed by the defendant. This is not a case where the prescribed settlement disclosure notice including a two day cooling off period was sent out after a settlement had been achieved.