Elizabeth Nastasi

The applicant sought judicial review of a director's delegate's decision which overturned an arbitrator's finding that the applicant was not bound by the $3,500 limit for medical and rehabilitation benefits under the Statutory Accident Benefits Schedule (SABS).

The Divisional Court held that the director's delegate reasonably concluded that sections 14 and 18 of the SABS create limits on liability rather than exclusions, meaning the burden of proof remains on the insured.

However, the court found the director's delegate erred in concluding that the Minor Injury Guideline is entirely binding as if it were part of the SABS, holding instead that it is only incorporated by reference where expressly required for interpretation.

The application for judicial review was allowed and the matter remitted for a new preliminary issue hearing.

The applicant sought judicial review of a FSCO Delegate's decision upholding an arbitrator's finding that his entitlement to WSIB benefits precluded him from receiving statutory accident benefits (SABS).

The applicant argued the insurer was estopped from relying on his suspended licence to deny benefits and that the arbitrator erred in interpreting the onus under s. 59(2) of the SABS Schedule.

The Divisional Court dismissed the application, finding the Delegate's decision reasonable.

The insurer did not mislead the applicant, and the applicant failed to discharge his onus to prove his civil action was not commenced primarily for the purpose of claiming SABS.