Statutory Accident Benefits Schedule matters (SABS)

The Court of Appeal for Ontario considered whether to grant Diana and Michael Hordo an extension of time to seek leave to appeal a Divisional Court decision.

The Hordos failed to comply with procedural rules and repeatedly submitted deficient materials.

The court applied the test for an extension of time, focusing on the merits of the proposed appeal, and found that the only potentially meritorious ground was a reasonable apprehension of bias.

The court granted the extension, referred the perfected motion for leave to a panel, and reserved costs.

The applicant sought statutory accident benefits after an incident where her shopping cart struck a trolley of plants outside a grocery store, causing the trolley to fall.

The respondent denied benefits on the basis that the incident was not an 'accident' under s. 3(1) of the Schedule.

The Licence Appeal Tribunal found that while the applicant was using her vehicle for the ordinary purpose of grocery shopping, the use or operation of the vehicle did not directly cause her injuries.

The falling trolley was an intervening act and the dominant feature of the incident.

The application was dismissed.

The applicant sought statutory accident benefits following a motor vehicle accident, claiming entitlement to income replacement benefits and various treatment plans outside the Minor Injury Guideline (MIG) due to psychological impairments.

The Licence Appeal Tribunal found that the applicant failed to prove a substantial inability to perform the essential tasks of his employment, noting he continued to work and earn similar income post-accident.

The Tribunal also found insufficient evidence of a psychological impairment to warrant removal from the MIG, preferring the respondent's psychological assessment over the applicant's.

The application was dismissed, and the applicant was found not entitled to the disputed benefits or interest.

The insurer applied to determine whether it validly suspended the insured's non-earner benefits for failing to submit an updated disability certificate and attend insurer's examinations.

The insured raised a preliminary issue, arguing the insurer was barred by res judicata because a prior Tribunal decision had found the insured entitled to non-earner benefits.

The Tribunal held that res judicata did not apply because the current application raised a different question—the validity of a subsequent suspension for non-compliance—rather than the initial procedural denial.

The insurer was permitted to proceed to a hearing.

The applicant sought statutory accident benefits following a motor vehicle accident, including a non-earner benefit, a physiotherapy treatment plan, a psychological services treatment plan, and a special award.

The Tribunal dismissed the claim for the non-earner benefit, finding insufficient evidence to make a meaningful comparison of the applicant's pre- and post-accident activities.

The Tribunal approved the physiotherapy treatment plan, finding the goals reasonable and supported by evidence of progress.

The claim for the psychological services treatment plan was dismissed because the applicant failed to prove the provider qualified for the higher hourly rate sought.

The request for a special award was also dismissed as there was no evidence of unreasonable conduct by the insurer.

The applicant sought statutory accident benefits following a motor vehicle accident.

The respondent raised a preliminary issue arguing the applicant was barred from proceeding to a hearing because he failed to attend scheduled insurer's examinations (IEs) under s. 44 of the Schedule.

The Tribunal found the respondent's notices of examination were compliant and the requested IEs were reasonably necessary.

Consequently, the applicant was statute-barred from proceeding with four specific treatment plans.

However, the Tribunal exercised its discretion under s. 55(2) to allow the applicant to proceed with the remaining substantive issues, including attendant care benefits and occupational therapy, because the respondent failed to prove it had provided denial notices for those benefits prior to requesting the IEs.

The applicant was injured in a motor vehicle accident while working and initially received WSIB benefits.

He subsequently opted out of WSIB to claim statutory accident benefits and later commenced a tort action.

The insurer argued the applicant was barred under s. 61 of the Schedule because his election was made primarily to claim accident benefits.

The Tribunal agreed, finding insufficient evidence of a bona fide intention to pursue a tort claim at the time of the election.

The application for accident benefits was dismissed as statute-barred.

The applicant sought statutory accident benefits following a motor vehicle accident.

The matter proceeded to a written hearing.

The applicant's representative was removed prior to the hearing, and the applicant failed to file any written submissions or evidence.

Proceeding under section 7(2) of the Statutory Powers Procedure Act, the Tribunal found the applicant failed to meet her evidentiary burden to demonstrate entitlement to removal from the Minor Injury Guideline, income replacement benefits, medical benefits, or an award.

The application was dismissed.

The applicant was involved in a motor vehicle accident and sought statutory accident benefits.

The insurer sought repayment of $20,297.71 for duplicative income replacement benefit (IRB) payments made in error.

The applicant failed to file submissions or participate in the written hearing.

The Tribunal proceeded in the applicant's absence and found the insurer was entitled to the IRB repayment under section 52 of the Schedule, as the insurer provided proper notice within the 12-month period.

The applicant's claims for an award and interest were dismissed.

An insurer mistakenly believed that a snowmobile was not covered under its automobile insurance policy and persuaded the Motor Vehicle Accident Claims Fund to accept responsibility for paying statutory accident benefits to an injured passenger.

When the coverage error was discovered, the Fund sought reimbursement and the insurer refused, arguing that the Fund had lost its ability to contest priority once it accepted responsibility.

The arbitrator found the insurer was the priority insurer and ordered reimbursement.

The Court of Appeal upheld the decision, holding that the Fund is not an ordinary insurer in priority disputes under the Regulation and is entitled to resile from its acceptance of priority.

The court also clarified that section 7(6) of the Regulation permits an arbitrator to order full reimbursement of benefits paid, not merely impose sanctions.

The appellant, seriously injured in a motor vehicle accident, sued her insurer for bad faith in handling her statutory accident benefits (SABs) claim, seeking punitive and exemplary damages.

The insurer had failed for approximately three years to advise the appellant or her parents that her injuries qualified as a catastrophic impairment or to inform them of available benefits.

The motion judge struck the statement of claim, finding that the Licence Appeal Tribunal (LAT) had exclusive jurisdiction under section 280 of the Insurance Act.

The Court of Appeal upheld this decision, holding that the dispute resolution provisions of the Insurance Act apply broadly to disputes concerning SABs entitlement and administration, regardless of whether the claim is characterized as one for bad faith.

The plaintiff brought a Rule 21 motion seeking a determination on the applicable prejudgment interest rate in a solicitor's negligence action, specifically whether the rate should be from the Statutory Accident Benefits Schedule (SABS) or the Courts of Justice Act.

The court declined to determine the issue on a motion, finding that a trial judge with a full evidentiary record would be in a better position to assess the relevant factors and avoid a potentially punitive outcome, leaving the interest rate dispute for trial.

Appeal from an arbitral decision concerning a priority dispute between insurers over statutory accident benefits.

The issue was when the respondent insurer received a “completed application” triggering the 90‑day notice period under s. 3(1) of O. Reg. 283/95 (Disputes Between Insurers).

The arbitrator held that the application became functionally complete when full spousal insurance details were received months later.

The court held that the application became functionally adequate earlier, once the insurer obtained sufficient information to begin reasonable investigations into potential priority insurers.

Because notice was given more than 90 days after that point and the savings provision in s. 3(2) did not apply, the appeal was allowed and the arbitration award set aside.

The appeal concerned a preliminary arbitration decision arising from a statutory accident benefits priority dispute under s. 268 of the Insurance Act and O. Reg. 283/95.

The appellant argued that the insurer initiating the dispute was required to conduct a reasonable investigation and give notice to all insurers potentially higher in priority before serving the Motor Vehicle Accident Claims Fund.

The court held that the wording of s. 3 of the Regulation did not impose a general duty to investigate before giving notice and required notice only to insurers the initiating insurer claims are liable.

The court agreed with the arbitrator’s interpretation that the Regulation does not obligate the first insurer to notify every potentially higher-priority insurer or conduct a full investigation prior to issuing a priority dispute notice.

The arbitrator’s decision was upheld.

The applicant, catastrophically injured in a motor vehicle accident, sought determination of the amount of attendant care benefits payable under the Statutory Accident Benefits Schedule, O. Reg. 34/10.

The insurer limited payments based on the number of hours of economic loss sustained by the family member providing care, rather than the full amount assessed in the Form 1.

The court interpreted the definition of “incurred” expense under s. 3(7)(e) of the SABS and held that proof of economic loss is only a threshold requirement to establish that the expense was incurred.

Once that threshold is met and the insured is obligated to pay the caregiver, the insurer must pay the reasonable and necessary attendant care expenses up to the statutory maximum.

The insurer’s proportional calculation based on lost hours was rejected.

The plaintiff brought a motion under rule 21.01 seeking a declaration that her injuries constituted an "accident" under s.2(1) of the Statutory Accident Benefits Schedule, thereby entitling her to statutory accident benefits.

The incident occurred when the plaintiff was injured while a taxi driver attempted to move a motorized scooter to transport a passenger to a wheelchair-accessible taxi.

The court applied the two-part test requiring that the injury arise from the use or operation of an automobile and that such use directly cause the impairment.

Although the taxi was being used for its intended purpose, the court held the injury was caused by the driver's handling of the scooter, an intervening act unrelated to the use or operation of the taxi.

The motion for a declaratory order was therefore dismissed.

An insurer appealed a private arbitration award concerning a statutory accident benefits loss transfer dispute arising from a multi‑vehicle highway collision.

The arbitrator had found that a heavy commercial truck insured by the appellant caused a chain‑reaction collision and was 100% at fault under Rule 9(4) of the Fault Determination Rules, entitling the respondent insurer to full indemnification for benefits paid to its insured.

The appellant argued the incident constituted a pile‑up governed by Rule 11, which would limit liability to 50%, and challenged the finding of a collision involving its insured vehicle.

The court held the arbitrator’s factual findings were supported by the evidence and that Rule 9(4) was correctly applied because the other vehicles were stationary in the same lane at the time of impact.

The appeal was dismissed and the arbitration award affirmed.

The plaintiff brought an action against her accident benefits insurer under the Statutory Accident Benefits Schedule and sought to avoid attending an oral examination for discovery due to alleged psychological harm.

The court held that the evidentiary record did not provide persuasive and compelling medical evidence that attendance for discovery, with appropriate accommodations, would cause significant psychological damage.

The court ordered that the plaintiff attend for examination for discovery and held that the defendant insurer was entitled to examine first under the Rules of Civil Procedure because it served the first affidavit of documents and notice of examination.

The court also ruled that an application for mediation under the Insurance Act does not automatically give rise to litigation privilege and does not, by itself, establish that litigation was reasonably contemplated.

A costs endorsement arising from a motion under Rule 7.08 seeking court approval of a minor’s settlement relating to statutory accident benefits following a catastrophic motor vehicle injury.

The settlement totalled $1,275,000, including a structured annuity and funds used to purchase a residence for the injured minor.

The Office of the Public Guardian and Trustee raised concerns regarding the reasonableness of counsel’s fees and recommended a reduction.

After reviewing supplementary evidence and considering the factors under Rule 57.01 of the Rules of Civil Procedure, the court concluded that fees representing 17.14 percent of the settlement were fair and reasonable given the complexity and duration of the litigation.

The defendant lawyer brought a motion seeking an order requiring the plaintiff to deliver a further and better affidavit of documents and to post security for costs under Rule 56.01 of the Rules of Civil Procedure on the basis that the plaintiff resided outside Ontario.

The court held that the plaintiff’s documentary disclosure lacked sufficient particularity and ordered the plaintiff to provide a more detailed affidavit identifying individual physiotherapy records to facilitate discovery and trial.

However, the court declined to order security for costs after finding the plaintiff was impecunious and that the legal malpractice claim was not clearly devoid of merit.

Given the plaintiff’s financial circumstances, ordering security would effectively terminate the action before its merits could be determined.

The motion for security for costs was dismissed without prejudice to renewal following discovery.