D’Arcy McGoey

The moving party insurer sought an extension of time to file materials for leave to appeal and a stay of a Divisional Court order requiring it to pay $365,257 for home modifications under the Statutory Accident Benefits Schedule.

The responding party, a 92-year-old woman with catastrophic injuries, required the funds to modify her daughter's home for her care.

The Court of Appeal granted the unopposed extension of time but dismissed the stay motion.

Applying the RJR-MacDonald test, the court found the insurer failed to establish irreparable harm and that the balance of convenience strongly favoured the responding party given her advanced age, poor health, and immediate need for the benefits.

The applicant sought a determination of catastrophic impairment under criterion 8 and entitlement to income replacement benefits following a motor vehicle accident.

The respondent brought a preliminary motion to bar the application due to the applicant's failure to attend a follow-up insurer's examination.

The Tribunal dismissed the motion, finding the requested examination was not reasonable and necessary given the timing and lack of new issues.

On the substantive issues, the Tribunal found the applicant failed to prove she suffered a catastrophic impairment, preferring the respondent's experts who found her impairments were moderate and largely attributable to a pre-existing major depressive episode.

The Tribunal also dismissed the claims for income replacement benefits, an award, and interest.

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

The respondent insurer denied several benefits, arguing the applicant's injuries fell within the Minor Injury Guideline (MIG).

The Tribunal found that while the applicant's physical and psychological injuries did not warrant removal from the MIG, her accident-related chronic pain condition caused functional impairment justifying removal.

The Tribunal awarded an income replacement benefit for the first 104 weeks post-accident, finding the applicant suffered a substantial inability to perform her duties as a personal support worker.

However, post-104 week benefits were denied as she did not demonstrate a complete inability to engage in any suitable employment.

Various treatment plans and assessments were approved in part, and interest was awarded on overdue payments.

The plaintiffs brought a motion seeking reconsideration and amendment of a prior endorsement that approved a minor's settlement in a tort action.

The motion sought to clarify or correct findings regarding the settlement quantum, structured settlements for minors, and the enforceability of contingency fee and referral fee agreements.

The court dismissed the motion for reconsideration, except for a minor accidental slip, reaffirming the narrow scope for judicial reconsideration of decisions before formal judgment entry, emphasizing that such motions are generally not a substitute for appeal.

The minor plaintiff was struck by a vehicle while crossing the road after collecting mail.

A settlement of $400,000 was reached at mediation.

The litigation guardian brought a motion for court approval of the settlement, legal fees under a contingency fee agreement, and a referral fee.

The court approved the settlement amount for the minor plaintiff but found the contingency fee agreement and referral fee agreement unenforceable due to non-compliance with statutory and Law Society requirements.

Legal fees were reduced and approved on a quantum meruit basis.

This appeal concerns a dispute between two insurers regarding the payment of statutory accident benefits (SABS) to an injured claimant.

The central issue is whether an insurer's failure to notify the claimant of a priority dispute between insurers within 90 days of receiving the SABS application precluded the insurer from pursuing the dispute.

The arbitrator determined that while notice to the claimant was mandatory, no specific time limit was prescribed by regulation.

The Superior Court reversed this decision, applying a correctness standard of review.

The Court of Appeal allowed the appeal, holding that the reasonableness standard of review applies to arbitrator decisions on SABS priority disputes, even where questions of law are engaged.

The arbitrator's interpretation that late notice did not bar the priority dispute was reasonable.

Kingsway appealed an arbitrator's decision ordering it to indemnify Dominion for statutory accident benefits paid following a four-vehicle chain reaction collision.

The arbitrator found that s. 9(3) of the Fault Determination Rules did not apply because the fourth vehicle was stationary, and applied ordinary tort rules to find Kingsway's insured 100% at fault.

The Superior Court allowed the appeal, holding that s. 9(3) applies to the three vehicles in motion regardless of the stationary fourth vehicle.

Following the Court of Appeal's decision in State Farm, s. 9(3) precludes 'leapfrogging' loss transfer claims between vehicles that do not directly collide.

This appeal concerns an arbitrator's decision regarding sanctions for an insurer's improper deflection of a statutory accident benefits (SABs) claim and failure to provide timely notice of dispute.

The Motor Vehicle Accident Claims Fund (MVACF) appealed the arbitrator's decision to impose only costs sanctions on TD Insurance, arguing that TD should be permanently liable for the SABs due to its conduct.

The court upheld the arbitrator's decision, finding it reasonable and within jurisdiction, as existing appellate authority supports that a breach of the "Disputes Between Insurers" regulation does not automatically result in permanent liability, especially when another insurer initiated the dispute process within the required timeframe.

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

A priority dispute between insurers was resolved, with Western Assurance assuming carriage of the claim.

State Farm brought a motion on consent to add Western Assurance as a party and remove itself from the arbitration.

The arbitrator granted the motion, finding jurisdiction under the Statutory Powers Procedure Act and the Dispute Resolution Practice Code to add and remove parties, and concluding that the proposed order was the most just, quickest, and least expensive manner of proceeding.

This appeal concerned the interpretation of Regulation 283/95 under the Insurance Act, specifically whether an insurer disputing liability for statutory accident benefits must provide notice of its dispute to the insured person within the same 90-day period it provides notice to the other insurer.

The arbitrator had found that late notice to the insured was permissible.

The court, applying a purposive approach to statutory interpretation, held that the 90-day period for notifying other insurers also applies to notifying the insured, as indicated by the word "also" in the Regulation and to ensure the insured's rights to participate in the dispute are not nullified.

The court also confirmed that relief from forfeiture is not available for statutory time limits under this regulatory scheme.

The appeal was allowed, and the respondent's dispute was barred due to late notice to the insured.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, including income replacement, housekeeping, and attendant care benefits.

The insurer terminated these benefits based on insurer examinations.

The arbitrator found that the applicant remained substantially unable to perform the essential tasks of his pre-accident employment, noting the insurer failed to properly adjust the file when advised the applicant had not returned to work.

The arbitrator awarded income replacement benefits, partial housekeeping and attendant care benefits, and a $5,000 special award against the insurer for unreasonably withholding benefits.

An insurer appealed an arbitrator’s decision in a statutory accident benefits priority dispute under s. 268 of the Insurance Act.

The arbitration determined that the accident victim was principally dependent on his father and stepmother, making the father’s insurer responsible for statutory accident benefits reimbursement.

The appellant argued the arbitrator misapplied the dependency test and failed to conduct a proper mathematical analysis of financial support.

The court held the arbitrator correctly applied the dependency criteria established in Miller v. Safeco and that the conclusion that the claimant was not financially independent was both correct and reasonable.

The appeal was dismissed.

Following an arbitration where the applicant was awarded income replacement benefits and a special award, both parties sought their expenses.

The arbitrator found that both parties engaged in conduct contributing to moderate delay, making that criterion moot.

Considering the applicant's partial success and an offer to settle, the arbitrator awarded the applicant a portion of her expenses.

The insurer was ordered to pay the applicant's expenses fixed at $15,000.00, inclusive of fees, disbursements, and taxes.

The applicant was injured in a minor rear-end motor vehicle accident and received statutory accident benefits.

The insurer terminated her income replacement benefits 11 months post-accident based on incomplete and deficient insurer examination reports.

The applicant sought ongoing income replacement benefits, interest, and a special award.

The arbitrator found that the insurer's termination of benefits was premature and unreasonable, entitling the applicant to benefits up to the 104-week mark and a special award of $7,500.

However, the arbitrator found the applicant was not entitled to benefits beyond 104 weeks, as she exaggerated her physical and psychological impairments, failed to make reasonable efforts to return to work, and her pre-accident employer was willing to accommodate her return.

The moving defendants sought summary judgment dismissing claims arising from a motor vehicle accident on the basis that the action was commenced outside the two‑year limitation period under the Limitations Act, 2002.

The responding parties argued the claim was not discoverable until medical evidence confirmed that the injuries from the second accident met the statutory threshold and exceeded the deductible under the Insurance Act.

The court held that determining discoverability required a global assessment of injuries from two separate accidents and an apportionment of damages between them to determine whether the deductible for the second accident was exceeded.

These factual determinations required credibility assessments and expert evidence that could not be fairly resolved on a summary judgment motion.

The motion was therefore dismissed and the matter left for determination at trial.

Following the settlement of a dispute over income replacement benefits, the parties could not agree on the amount of expenses payable to the applicant.

The arbitrator awarded the applicant $26,256.74 in expenses, including 100 hours of legal preparation time at $120 per hour, maximum allowable expert report fees, and various disbursements.

The arbitrator declined to award preparation fees for experts who did not testify.

The applicant insurer sought judicial review of a Director's Delegate decision finding that the respondent's notice requesting arbitration was filed within the 90-day limitation period under the Insurance Act.

The Divisional Court upheld the decision, agreeing that the mediator's report was 'given' when received by the parties, and that delivering the notice to the general reception of the Financial Services Commission satisfied the filing rules.

The application for judicial review was dismissed with costs.

The applicant was injured in a motor vehicle accident and commenced a court action for certain accident benefits.

She later applied for arbitration to determine if she sustained a catastrophic impairment.

A priority dispute determined that Certas, not Dominion, was the priority insurer.

The applicant sought to add Certas to the arbitration, while Certas sought to stay the arbitration, arguing all issues should be heard in the existing court action.

Applying the pragmatic balancing of interests test from Mangat, the arbitrator found that allowing both proceedings would create an unacceptable risk of inconsistent results regarding causation and credibility.

However, the arbitrator permitted the applicant to consolidate all issues in the arbitration, provided she seeks leave to withdraw or discontinue her court action, as this would result in the most just, quickest, and least expensive resolution.

Certas was added as a party, and Dominion remained a party to respond to a special award claim.

The applicant sought expenses following an arbitration decision where he was largely unsuccessful in his claims for statutory accident benefits.

The insurer also sought its expenses.

The arbitrator considered the criteria under Rule 73.2 of the Dispute Resolution Practice Code.

The arbitrator found that the applicant's lack of credibility and malingering militated against him receiving his expenses.

However, the insurer was also denied its expenses because the applicant had to proceed with the hearing to obtain the minor benefits to which he was entitled.

Neither party was awarded expenses.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, including income replacement benefits, medical benefits, and housekeeping expenses.

The insurer terminated benefits, and the applicant applied for arbitration.

The arbitrator found significant credibility issues with the applicant, relying on expert psychological evidence that the applicant was malingering and intentionally producing poor results on cognitive tests.

The arbitrator also found that the applicant's alleged post-traumatic stress disorder was likely caused by a subsequent incident involving a snake, rather than the accident.

However, the arbitrator accepted that the accident reactivated a pre-existing knee condition that eventually required surgery, and awarded income replacement benefits for an eight-week recovery period following the surgery.

All other claims for benefits were dismissed, save for the cost of one disability certificate.