Statutory Accident Benefits Schedule matters (SABS)

The applicants sought their expenses following an arbitration regarding statutory accident benefits.

The arbitrator found that the applicants were entitled to their arbitration expenses because the factual and legal issues raised were complex, novel, and significant, acting as a 'test case' for several other similar arbitrations.

The insurer's offer to settle was not given weight as it was ambiguous and made for tactical advantage rather than genuine settlement.

The Insurer requested the dismissal of the arbitration proceeding because the Applicant failed to meet undertakings.

The Applicant, having retained a new representative just days before the hearing, requested an adjournment.

The Arbitrator declined to dismiss the proceeding, finding it too drastic a remedy, but granted the adjournment peremptory to the Applicant.

The Arbitrator awarded the Insurer $1,000 in costs thrown away due to the late adjournment request and the Applicant's failure to comply with productions, and imposed strict timelines for future productions and expert reports.

The Applicant was injured in a motor vehicle accident and sought income replacement benefits after the Insurer terminated them.

The Insurer argued the Applicant could return to her pre-accident employment as a bartender.

The Arbitrator found the Applicant suffered a Grade II whiplash injury and was substantially unable to perform the essential tasks of her demanding pre-accident job, which included repetitive bending, reaching, and lifting.

The Applicant was awarded income replacement benefits and interest, but was ordered to pay the Insurer's arbitration expenses for the first day of the hearing due to her failure to appear.

The insurer appealed an arbitrator's decision awarding the insured his full arbitration expenses.

The insurer had been largely successful at the arbitration and had made a qualifying offer to settle prior to the hearing.

The Director's Delegate found that the arbitrator erred in law by misapprehending the terms of the settlement offer, mistakenly believing it required the insured to give up all future benefits.

In reassessing the expenses, the Director's Delegate noted that while the insurer's offer was serious and the insurer was mostly successful, the insured's case had some merit based on the medical evidence.

The appeal was allowed in part, and the expenses award was varied to entitle the insured to two-thirds of his reasonable arbitration expenses.

The applicant was injured while riding as a passenger on a streetcar and applied for statutory accident benefits, including non-earner benefits, housekeeping expenses, and transportation expenses.

The insurer denied the claims, and the applicant sought arbitration.

The arbitrator dismissed the applicant's claims, finding that medical evidence and surveillance contradicted his assertions of ongoing impairment and inability to perform pre-accident activities.

The arbitrator also found the applicant's evidence regarding transportation expenses unreliable.

Although the arbitrator declined to impose a penalty for a frivolous or vexatious proceeding, he awarded the insurer $1,250 in expenses because the applicant's claims were manifestly unfounded.

The applicant was injured in a motor vehicle accident and claimed accident benefits.

The parties entered into a settlement agreement, but a dispute arose over the interpretation of a term regarding ongoing payment for a shop assistant and housekeeping expenses.

The arbitrator held that the settlement agreement implicitly required the applicant to demonstrate continuing entitlement to the benefits and to provide reasonable verification of her expenses, rather than providing a 'blank cheque' for life.

The applicant sought to re-open the arbitration hearing to admit new evidence regarding whether medical assessments could be billed to OHIP.

The arbitrator treated the request as a motion.

Applying the Palmer test for the admission of new evidence, the arbitrator found that the applicant failed to meet the due diligence requirement, as the representative conceded the evidence could have been obtained prior to the hearing with greater diligence.

The motion to re-open the hearing was dismissed.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits.

A preliminary issue was raised regarding whether short-term disability payments received under the Workplace Safety and Insurance Act prior to the accident should be considered 'income from employment' for calculating his weekly income replacement benefits.

The arbitrator held that such payments do constitute 'income from employment' under the Statutory Accident Benefits Schedule, applying a purposive interpretation to avoid the absurdity of excluding them while allowing their deduction post-accident.

The appellant appealed an arbitration order that denied her further weekly income benefits and required her to pay half of the insurer's arbitration expenses.

The appellant argued she was denied a fair hearing due to the arbitrator's procedural rulings (dismissing an interpreter and refusing to consider a second accident), her counsel's incompetence, and the arbitrator's alleged bias stemming from frustration with her counsel.

The Director's Delegate dismissed the appeal, finding that the absence of an interpreter did not prejudice the appellant, the arbitrator correctly refused to hear the unmediated second accident claim, the Charter right to effective counsel does not apply to private economic disputes, and the arbitrator's frustration with counsel's delays did not amount to bias.

The appellant and respondent insurers disputed priority for statutory accident benefits following a fatal accident.

The deceased had exited his tractor trailer and was standing 30 feet away when he was struck by debris from another vehicle.

The arbitrator found the deceased was the 'driver' and thus an 'occupant' of the tractor trailer under the Insurance Act, making the respondent liable.

The appeal judge reversed this finding.

The Court of Appeal allowed the appeal, holding that the statutory definition of 'driver' does not require the person to be engaged in the act of driving or inside the vehicle at the exact moment of the incident, provided they maintain a physical connection and control over the vehicle.

The applicant was injured in a motor vehicle accident when he was nine years old.

Upon turning sixteen, he applied for statutory accident benefits.

The insurer denied the claim, arguing that because more than 156 weeks had passed since the accident, the more onerous post-156 week test applied.

The applicant argued that the pre-156 week test should apply initially upon his turning sixteen.

The arbitrator held that the pre-156 week test under subsection 13(1) of the Schedule applies first when an insured turns sixteen, regardless of the time elapsed since the accident, to avoid anomalous results based on the insured's age at the time of the accident.

The applicant sought an assessment of her expenses following an arbitration regarding statutory accident benefits where she was awarded a special award and interim benefits.

The insurer disputed the number of hours claimed and the hourly rate of $150.

The arbitrator found that the 42.75 hours claimed by the applicant's counsel were reasonable, noting that extensive preparation time resulted in a settlement and a significant special award, thereby decreasing hearing time.

The arbitrator also approved the maximum hourly rate of $150 given counsel's year of call and expertise.

The applicant was awarded $6,412.50 in legal fees and $466 in disbursements, plus GST.

The applicant sought statutory accident benefits following an incident where a limousine he was riding in allegedly drove over a curb.

The insurer terminated his income replacement benefits and sought repayment of all benefits paid, alleging the accident never occurred or the applicant was not injured.

The arbitrator found that the accident did occur and the insurer was not entitled to repayment.

However, the arbitrator dismissed the applicant's claim for ongoing income replacement benefits and further treatment, finding that his injuries from the subject accident had largely resolved and his ongoing disability was attributable to a subsequent accident.

The insurer was ordered to pay for two medical reports.

The applicant sought death and funeral benefits after her son was shot and killed in an underground parking garage while performing maintenance on his vehicle.

The insurer denied the claim on the basis that the death was not an 'accident' under the Statutory Accident Benefits Schedule.

The arbitrator dismissed the application, finding that the vehicle did not play a direct instrumental role in the chain of events leading to the death.

The direct and intervening cause of death was the gunshot, not the normal use and operation of the automobile.

The appellants appealed the dismissal of their action for battery and breach of good faith against their insurer and an independent chiropractor.

The appellant alleged she suffered a vertebrobasilar artery injury due to an unconsented procedure during an independent chiropractic examination arranged by her insurer.

The Court of Appeal upheld the trial judge's finding that the appellant failed to prove the chiropractor performed the alleged procedure.

The Court also found that the appellant had impliedly consented to the examination by attending without objection, and that the insurer's failure to inform her she could refuse attendance did not vitiate this consent or constitute a breach of good faith.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits.

Disputes arose regarding her entitlement to medical benefits for treatment at a rehabilitation clinic, housekeeping expenses, the cost of a psychological assessment, and a special award.

The arbitrator found that the applicant's right knee problems and chronic pain syndrome were materially contributed to by the accident, making the clinic's treatment reasonable and necessary.

The claim for housekeeping expenses was dismissed due to inconsistencies in the evidence.

The cost of the psychological assessment was awarded as it was reasonable for the applicant's counsel to request it.

The claim for a special award was dismissed as the insurer's denials were not unreasonable.

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

The insurer denied the claim for treatment expenses.

The applicant applied for mediation and subsequently arbitration.

The insurer raised a preliminary issue that the application for arbitration was filed beyond the two-year limitation period under section 281(5) of the Insurance Act.

The arbitrator found that a letter from the applicant's paralegal representative constituted an admission of actual notice of the insurer's refusal to pay benefits.

As the applicant failed to commence mediation within two years of this refusal, the application for arbitration was time-barred.

The insurer applied to vary or revoke a previous arbitration decision ordering it to pay for the insured's physiotherapy treatment and interest.

The insurer argued the insured was barred from receiving benefits under s. 43(3) of the Statutory Accident Benefits Schedule because he failed to attend a Designated Assessment Centre (DAC) examination.

The arbitrator found that while the insured did fail to make himself reasonably available, this failure occurred after the physiotherapy treatment had already concluded.

Therefore, the exclusion did not apply retroactively to the completed treatment.

The arbitrator also held that the insured was entitled to interest on the overdue benefits, as the Schedule does not provide for the forfeiture of interest due to non-compliance.

The insurer's application was dismissed and interest was ordered.

The applicant was injured in a motor vehicle accident while driving his estranged wife's vehicle.

The insurer denied statutory accident benefits, arguing under s. 30(1)(a) of the Schedule that the applicant ought reasonably to have known the vehicle was uninsured.

The arbitrator found that the insurer failed to meet its evidentiary burden to show that an ordinary, rational person in the applicant's situation would have known the vehicle lacked insurance.

The preliminary issue was resolved in favour of the applicant.

The applicant's representative sought to withdraw from the arbitration proceeding on the eve of the hearing.

The insurer sought costs against the representative or the applicant.

The arbitrator found that the representative had misrepresented the circumstances of his withdrawal and that the real litigant was the assessment facility.

However, the arbitrator concluded he lacked jurisdiction under the Insurance Act to award expenses against a representative.

The arbitrator declined to award expenses against the applicant, finding him largely blameless, but ordered the applicant to withdraw the arbitration or face costs, and imposed a $3,000 penalty if the applicant commenced a future arbitration for the same assessment.