David Raposo

The appellant appealed a decision of the License Appeal Tribunal which found that his injuries from a motor vehicle accident fell within the Minor Injury Guideline under the Statutory Accident Benefits Schedule.

The adjudicator preferred the objective medical evidence of the respondent's experts over the self-reported evidence of the appellant's treating physicians, noting credibility issues with the appellant.

The Divisional Court held that the adjudicator properly applied the law and that the decision was reasonable.

The appeal was dismissed with costs fixed at $5,000.

The applicant insurer sought an order compelling seven respondents to attend examinations under oath regarding their statutory accident benefits claims, specifically attendant care benefits, due to concerns about validity.

The respondents refused, citing insufficient notice of the reasons for examination and their medical conditions.

The court dismissed the motion, holding that the insurer's generic notice ("determining whether State Farm is liable to pay benefits") was inadequate under s. 33(4)3 of the Statutory Accident Benefits Schedule.

The court emphasized that specific reasons for the examination are a condition precedent to the obligation to attend, allowing insureds to prepare adequately.

The applicant insurer appealed an arbitrator’s decision concerning loss transfer reimbursement under s. 275 of the Insurance Act after paying statutory accident benefits to its insured following a motorcycle accident caused by the respondent insurer’s insured.

The arbitrator concluded that the applicant insurer had grossly mishandled the accident benefits file and unreasonably paid substantial benefits, including delayed insurer examinations and excessive settlement amounts.

As a result, the arbitrator reduced the amount recoverable from the respondent insurer.

The court held that the arbitrator’s findings involved mixed fact and law and were entitled to deference unless unreasonable.

Finding ample evidence supporting the arbitrator’s conclusions, the court declined to interfere and upheld the reduced indemnity award.

The plaintiffs sued their insurer for terminating statutory accident benefits based on reports from health care professionals retained by the insurer under s. 42 of the Statutory Accident Benefits Schedule.

On discovery, the plaintiffs sought to ask questions that amounted to cross-examining these experts.

The motion judge held that the experts were not 'experts' within the meaning of Rule 31.06(3) of the Rules of Civil Procedure, and thus the prohibition against cross-examination did not apply.

The Divisional Court allowed the insurer's appeal, holding that the clear wording of Rule 31.06(3) covers experts engaged by a party for a purpose other than litigation, including s. 42 assessors.

The defendant insurer sought leave to appeal a decision upholding a Master's order that required a claims examiner to answer certain questions on discovery.

The questions related to whether health professionals who assessed the plaintiffs under s. 42 of the Statutory Accident Benefits Schedule had requested certain records.

The appeal judge had found that these professionals were 'assessors' rather than 'experts' under rule 31.06(3), and thus the prohibition against cross-examining experts on discovery did not apply.

The Divisional Court granted leave to appeal, finding that the issue of whether rule 31.06(3) applies to s. 42 assessors is open to serious debate and raises a new question of principle.