Eric K. Grossman

Both the applicant and the respondent insurer requested a reconsideration of a Licence Appeal Tribunal decision regarding the calculation of income replacement benefits (IRBs).

The insurer argued the Tribunal erred by not deducting the applicant's $120,000 long-term disability (LTD) settlement from her IRBs, asserting it resulted in double recovery.

The applicant argued the Tribunal erred by refusing to grant a special award under s. 10 of O. Reg. 664 for unreasonable withholding of benefits.

The Vice-Chair dismissed both requests, finding no significant errors of law or fact.

The LTD settlement was a lump sum covering multiple heads of damages and could not be clearly apportioned as an income continuation benefit, and the insurer's conduct in disputing the claim was not excessive or unreasonable.

The applicant sought statutory accident benefits after slipping and falling on ice in a parking lot after exiting a borrowed minivan.

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

The Tribunal applied the purpose and causation tests to determine if the injuries arose out of the use or operation of an automobile.

The Tribunal found that the applicant had completed his use of the vehicle and was walking away when he fell, failing the purpose test.

Furthermore, the slip and fall on the icy parking lot constituted an intervening act that broke the chain of causation.

The application was dismissed.

Allstate paid Michigan-level personal injury protection (PIP) benefits to an insured following a motor vehicle accident in Michigan.

TD Home accepted priority as the proper insurer but only reimbursed Allstate for Ontario-level benefits, arguing it was not obligated to pay Michigan-level benefits because it had not signed Michigan's Certification List.

An arbitrator ordered TD Home to reimburse the full amount.

TD Home appealed.

The Superior Court of Justice dismissed the appeal, finding the arbitrator's decision was reasonable and within his authority under the Arbitration Act to decide the dispute in accordance with law and equity.

The appellant was injured in a motor vehicle accident and received income replacement benefits until the insurer refused further benefits.

The appellant applied to the Licence Appeal Tribunal to dispute the refusal, but the adjudicator dismissed the application as being outside the two-year limitation period.

On appeal, the appellant argued the refusal was invalid because the insurer failed to provide copies of independent assessment reports to her treating practitioner, as required by section 37(5) of the Statutory Accident Benefits Schedule.

The Divisional Court dismissed the appeal, holding that while the insurer breached section 37(5), this omission did not invalidate the clear and unequivocal refusal of benefits, and the limitation period had expired.

The applicant sought statutory accident benefits following a 2010 motor vehicle accident, claiming catastrophic impairment and non-earner benefits.

The applicant had significant pre-existing conditions, including severe rheumatoid arthritis and injuries from a 2009 accident.

Following an appeal that remitted the issues for re-hearing, the arbitrator found that the applicant failed to meet the 'but for' test for causation.

The evidence demonstrated that her ongoing impairments and subsequent surgeries were the result of her pre-existing degenerative conditions rather than the 2010 accident.

Consequently, the claims for catastrophic impairment and non-earner benefits were denied.

Two Ontario residents injured in separate accidents outside Ontario involving an all-terrain vehicle (ATV) and a dirt bike sought statutory accident benefits (SABs) under their Ontario automobile insurance policies.

Both insurers denied coverage, arguing that the definition of "automobile" under Ontario law should be determined by the law of the jurisdiction where the accidents occurred (lex loci delicti).

The Court of Appeal held that Ontario law applies to the interpretation of Ontario contracts and statutes, and that the definition of "automobile" in the Insurance Act and Off-Road Vehicles Act applies uniformly regardless of where the accident occurs.

Both vehicles qualified as automobiles under the extended definition because they would have required insurance if operated in Ontario under the Off-Road Vehicles Act.

The court allowed the appeal of the insured and dismissed the appeal of the insurer.

The respondent insurer filed a request for reconsideration of a preliminary decision more than 12 months after the 21-day deadline, arguing that its timely appeal to the Divisional Court demonstrated its intention to pursue a review.

The Tribunal declined to extend the deadline under section 7 of the Licence Appeal Tribunal Act or Rule 3, finding that allowing the late reconsideration would not promote an efficient or timely resolution and would prejudice the applicant who had already responded to the unsuccessful court appeal.

The request for reconsideration was dismissed.

The insurer applied to vary an appeal order that required the insured to repay interim benefits but failed to specify the quantum.

The insured argued the Director's Delegate lacked jurisdiction as the omission was not a mere typographical error.

The Director's Delegate held that issuing an unenforceable order without a quantum was an 'error in the order' under Rule 61.1(c) of the Dispute Resolution Practice Code.

The order was varied to require the insured to repay $41,919.18 in interim benefits.

However, the insurer's request to include benefits paid after a subsequent arbitration order was dismissed, as there was no error in the original appeal order regarding those payments.

The appellant insurer appealed an arbitrator's decision that the denial of the respondent's caregiver benefit was invalid and that she was entitled to elect her preferred weekly benefit.

The insurer argued that the OCF-1 application form constituted an application for all weekly benefits, allowing it to deny all benefits without an election, relying on recent case law.

The Director's Delegate dismissed the appeal, finding that the arbitrator correctly distinguished the case law because the insurer had actual knowledge that the respondent might qualify for more than one benefit, triggering the election requirement under section 36(2) of the Statutory Accident Benefits Schedule.

Because the insurer failed to provide the required election form, the limitation period did not commence, and the respondent could still make her election.

The defendant, Irina Campos, brought a motion under Rule 21.01(1)(a) of the Rules of Civil Procedure to dismiss the plaintiff's action as statute-barred, arguing the limitation period had expired.

The plaintiff, Miano, was injured in a hit-and-run in May 2015 and only identified Campos as the probable owner of the truck in February 2018 after obtaining police records.

The court dismissed the defendant's motion, holding that a limitation period defence based on discoverability is a question of mixed fact and law, not suitable for determination under Rule 21.01(1)(a) unless facts are undisputed.

The court further clarified that a claim for damages from an automobile accident is not discovered until the plaintiff knows or ought to know the identity of the owner or operator of the automobile, rendering it unnecessary to commence an action against "Jane Doe" to preserve a limitation period.

The appellant insurer appealed an interlocutory decision of the Licence Appeal Tribunal (LAT) which found that the respondent's application for Income Replacement Benefits was not barred by the two-year limitation period.

The Divisional Court dismissed the appeal as premature, holding that appeals from administrative tribunals should generally be restricted to final decisions to avoid fragmentation and increased costs.

The insurer may raise the limitation period issue in an appeal of the final decision if unsuccessful on the merits.

The appellant insurer appealed a Licence Appeal Tribunal (LAT) decision finding that an incident where the respondent was bumped by a car door and subsequently punched in the face constituted an 'accident' under the Statutory Accident Benefits Schedule.

The parties had agreed to a written preliminary issue hearing based on a specific question.

However, the LAT adjudicator unilaterally restated the issue in the final decision without notifying the parties.

The Divisional Court held that this breached procedural fairness, as the appellant was denied the opportunity to know the case to be met and to present relevant evidence and arguments.

The appeal was allowed, the decision quashed, and the matter remitted to a different adjudicator.

An insurance priority dispute concerning whether an automobile insurance policy issued by Elite remained in force at the time of an accident.

Elite sent a purported notice of non-renewal in August 2010 for a policy ending September 20, 2010, based on the claimant's failure to register for a data-transmitting device within 12 months.

The arbitrator found the notice premature and that the policy had been terminated by mutual agreement of the parties despite the statutory continuation provision in section 236(5) of the Insurance Act.

The Superior Court appeal judge reversed, finding section 236(5) required the policy to remain in force.

The Court of Appeal allowed the appeal, finding the arbitrator's decision reasonable on both issues: the notice was premature and the policy was effectively terminated by the parties' conduct.

The appellant was injured in an all-terrain vehicle accident and sought statutory accident benefits.

The Licence Appeal Tribunal adjudicator found the vehicle was not an automobile and denied benefits.

The Executive Chair reconsidered the decision, cancelled it, and ordered a rehearing.

Both parties appealed the reconsideration decision to the Divisional Court.

The court dismissed both appeals, finding the Executive Chair's decision to order a rehearing was reasonable given the complexity of the case and the need to resolve factual disputes regarding the vehicle's status.

The court also held that an appeal does not stay a request for reconsideration under the Statutory Powers Procedure Act.

The Motor Vehicle Accident Claims Fund appealed a trial judgment in which it successfully sued an automobile insurer for restitution based on unjust enrichment.

The insurer had purported to terminate an automobile insurance policy for non-payment of premiums by sending notice only to the named insured (the vehicle owner's wife) rather than to the actual owner.

The policy remained in force when a catastrophic accident occurred.

The injured passenger obtained a judgment against the vehicle owner and assigned it to the fund, which paid the judgment and then sued the insurer for restitution.

The Court of Appeal upheld the trial judgment, finding that the notice of termination was ineffective because it was not sent to the actual owner as required by statutory condition 11(1) of Ontario Regulation 777/93, that the fund was not bound by the Insurance Act's limitation period because the Crown enjoyed immunity from the Act's provisions, and that the fund was entitled to bring a claim in unjust enrichment rather than being restricted to the statutory remedy under section 258 of the Insurance Act.

The applicant and respondent insurers were engaged in a priority dispute regarding statutory accident benefits.

Following the death of the original arbitrator, the parties could not agree on a substitute.

The applicant brought an application under the Arbitration Act, 1991 to appoint a new arbitrator.

The court appointed the applicant's proposed choice, the Honourable Douglas Cunningham, finding that the dispute involved novel legal arguments and issues of deflection, making an arbitrator with extensive judicial experience preferable to one with specialized insurance adjusting experience.

The applicant insurer sought judicial review of a FSCO Director's Delegate decision that allowed an insured's appeal in part regarding statutory accident benefits.

The insurer had denied claims for an in-home assessment and form preparation, alleging the clinics were engaged in a fraudulent scheme.

The Divisional Court held that the Director's Delegate exceeded his jurisdiction by interfering with the Arbitrator's findings of fact regarding the in-home assessment, as appeals are limited to questions of law.

However, the court upheld the decision requiring the insurer to pay for form preparation because the insurer failed to object to the application within the statutory timeframe.

The applicant, an Ontario resident, was injured in an ATV accident in British Columbia.

He applied for statutory accident benefits in Ontario.

The insurer denied the claim on the basis that the ATV was not an 'automobile' under the Statutory Accident Benefits Schedule because it was not required to be insured in British Columbia.

The applicant sought judicial review of the FSCO Director's Delegate's decision upholding the denial.

The Divisional Court dismissed the application, finding it was reasonable to apply British Columbia legislation to determine whether the ATV required insurance, and thus the ATV did not meet the definition of an automobile.

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.

The insurer appealed the Arbitrator's finding that the insured sustained a catastrophic impairment, arguing the Arbitrator applied the wrong causation test.

The insured cross-appealed the denial of Non-Earner Benefits, Housekeeping, and Attendant Care Benefits.

The Director's Delegate held that the 'but for' test, not the 'material contribution' test, is the correct causation test in accident benefits cases.

The Delegate found the Arbitrator misapprehended critical evidence regarding both the catastrophic impairment and Non-Earner Benefits claims, and remitted those issues for re-hearing.

The denial of Housekeeping and Attendant Care Benefits was upheld as the Arbitrator reasonably found the expenses were not incurred.