Harry P. Brown

The appellant appealed an order dismissing her action for catastrophic injury Statutory Accident Benefits as statute-barred under s. 281.1(1) of the Insurance Act.

The motion judge had distinguished the Divisional Court's decision in Do v. Guarantee Insurance Co., finding that the insurer's denial of catastrophic status included language denying increased benefits, thereby triggering the two-year limitation period.

The Court of Appeal allowed the appeal, holding that the insurer's language merely indicated a lack of status to claim increased benefits and did not constitute a denial of specific benefits.

The motion judge's order was set aside.

The insurer brought a motion for summary judgment seeking dismissal of the insured’s statutory accident benefits action as statute‑barred under s. 281.1 of the Insurance Act.

The insured had submitted an Application for Determination of Catastrophic Impairment (OCF‑19), to which the insurer responded with an Explanation of Benefits (OCF‑9) stating the insured had not sustained a catastrophic impairment and therefore did not qualify for increased benefits.

The insured argued that denial of catastrophic impairment status alone does not constitute a refusal to pay a benefit and therefore does not trigger the limitation period.

The court distinguished prior authority and held that the wording of the OCF‑9 expressly communicated that increased benefits were not payable, which constituted a refusal to pay benefits.

Accordingly, the two‑year limitation period began to run from that denial and the claim was commenced out of time.

The defendant moved for leave to appeal an order dismissing his motion for summary judgment.

The underlying action arose from a motor vehicle accident, and the defendant argued the claim was statute-barred because the plaintiff ought to have discovered his chronic pain claim within two years of the accident.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motion judge's decision.

The court held that the plaintiff was entitled to rely on the discovery evidence filed by the defendant on the summary judgment motion, and that the motion judge correctly applied the discoverability principles to find the plaintiff had exercised reasonable diligence in investigating whether his injuries met the statutory threshold.

Two priority disputes arose between insurers regarding the payment of statutory accident benefits to independent contractors injured while operating commercial vehicles.

The contractors operated as sole proprietorships and were named insureds under their personal-use vehicle policies, but not under the commercial fleet policies.

The Court of Appeal held that under s. 66(1)(a) of the Statutory Accident Benefits Schedule, an insured vehicle can be made available for an individual's regular use by their own sole proprietorship.

Consequently, the contractors were deemed named insureds under the commercial fleet policies, making the commercial insurers responsible for paying the accident benefits.

Two insurers, Wawanesa and Lombard, appealed preliminary arbitration decisions regarding a priority dispute over accident benefits.

Wawanesa, the first insurer to receive the application, deflected it to Lombard.

Lombard paid benefits but later disputed priority without providing the required 90-day notice.

The arbitrator ruled that Wawanesa's breach of the regulation prevented it from relying on Lombard's failure to give notice, but also ruled that Wawanesa was not permanently precluded from disputing priority.

The applications judge upheld both decisions.

The Court of Appeal dismissed both appeals, finding no error in the reasoning below.

The insured was injured in a motor vehicle accident and applied for a catastrophic impairment designation, which was denied by the insurer based on a CAT DAC assessment.

After the two-year limitation period expired, the insured submitted a new application based on an alleged change in condition.

The arbitrator found the limitation period applied but held that a change in condition could permit a reapplication.

On appeal, the Director's Delegate confirmed the arbitrator's finding that there was no factual change in condition, dismissing the insured's appeal.

However, on the insurer's appeal, the Delegate held that the arbitrator erred in law by finding an exception for changed conditions, ruling that under subsection 40(4) of the Schedule, a CAT DAC determination is binding and cannot be circumvented by a reapplication on the same criteria once the limitation period has expired.

The respondent was a passenger on a bus that was hijacked by armed robbers.

During the robbery, the respondent was struck on the head with a pistol and injured.

He applied for statutory accident benefits.

The arbitrator found that the incident was an 'accident' under the SABS-1996 because the bus was a critical part of the robbery.

The insurer appealed.

The Director of Arbitrations allowed the appeal, finding that the impairment was directly caused by the assault, an intervening act, rather than the use or operation of the automobile.

The applicant was injured in a motor vehicle accident and received loss of earning capacity benefits.

The insurer reduced these benefits based on a Designated Assessment Centre report concluding the applicant could work as a part-time telemarketer.

The arbitrator found the assessment seriously flawed, as it failed to consider the applicant's chronic pain, medications, commute, and vocational characteristics.

The arbitrator determined the applicant's residual earning capacity was zero, ordered the insurer to repay the deducted amounts, and granted a special award of $6,000 due to the insurer's unreasonable reliance on the flawed report.

The applicant, a self-employed carpenter, was injured in a motor vehicle accident and claimed income replacement benefits (IRBs).

The insurer paid IRBs at a weekly rate of $166.84, which the applicant disputed.

The arbitrator found the applicant failed to provide sufficient evidence to support a higher rate.

Furthermore, the arbitrator ordered the applicant to repay $692.39 in IRBs because he wilfully misrepresented his employment situation by failing to disclose income earned during the period he claimed to be off work.

The applicant's claim for a special award due to alleged unreasonable delay by the insurer was dismissed as unfounded.

The applicant was a passenger on a bus headed to a casino when it was hijacked by armed assailants.

The assailants took control of the bus, robbed the passengers, and pistol-whipped the applicant.

The insurer denied statutory accident benefits on the basis that the incident was not an 'accident' under the Schedule, arguing the use of the vehicle did not directly cause the impairment.

The arbitrator found that the bus played a central role in the robbery, acting as a moving prison and a weapon, and thus the use of the vehicle was a direct cause of the applicant's injuries.

The preliminary issue was resolved in favour of the applicant.

The applicant sought to withdraw his arbitration application without penalty, alleging institutional bias among FSCO arbitrators.

His representative applied to the Director of Arbitrations under s. 282(12) of the Insurance Act to appoint a private arbitrator.

The Director dismissed the application, finding no evidence of bias and noting that the Act only authorizes the appointment of arbitrators from the roster maintained by the Superintendent, not private arbitrators.

The Director also held that while he lacked authority to award expenses for the bias application, the delay caused by the application could be considered when arbitration expenses are eventually determined.

The insurer appealed an arbitration decision that ordered it to pay a maximum special award of 50 per cent ($61,829.52) for unreasonably withholding or delaying the payment of income replacement benefits.

The insurer argued that the arbitrator failed to consider the insured's failure to mitigate, the insurer's payment of the claim prior to the hearing, and that no benefits were owing at the time of the award.

The Director of Arbitrations dismissed the appeal, finding no error of law in the arbitrator's assessment of the evidence or her conclusion that the insurer's conduct warranted the maximum special award.

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

The insurer terminated her income replacement benefits, arguing she had recovered and could return to her pre-accident employment as a meat packer.

The arbitrator found that the applicant suffered from chronic pain syndrome and a major depressive disorder caused by the accident, rendering her substantially unable to perform the essential tasks of her employment.

The arbitrator preferred the evidence of the applicant's treating practitioners and experts over the insurer's assessors.

The applicant was awarded ongoing income replacement benefits, supplementary medical expenses, and interest on overdue benefits.

The applicant applied for statutory accident benefits following motor vehicle accidents in 1994.

After a long history of delays and multiple changes in legal representation, the applicant failed to attend the scheduled arbitration hearing on May 29, 2000, and requested its cancellation.

The arbitrator gave the applicant a final opportunity to provide written submissions explaining his absence.

Finding the submissions unpersuasive and noting the applicant's failure to conscientiously pursue the arbitration, the arbitrator dismissed the arbitration.

The applicant was ordered to pay $849.75 in previously ordered expenses to the insurer, but no new expenses were awarded because the arbitration was commenced prior to November 1, 1996.

The applicant, a minor injured in a motor vehicle accident, sought statutory accident benefits for transportation expenses to medical appointments of less than 50 kilometres.

The insurer denied the claim, relying on the exclusion in subsection 14(6) of the Statutory Accident Benefits Schedule for travel in the 'insured person's automobile' and the Superintendent's Guideline extending this to any automobile to which the insured has access.

The arbitrator held that the applicant did not own or lease the vehicles used (her parents' cars), so the Schedule's exclusion did not apply.

The arbitrator further found that the Guideline's extension of the exclusion went beyond the Schedule and was invalid.

The applicant was awarded the transportation expenses.

The appellant appealed an arbitration order denying his claim for weekly income benefits following a motor vehicle accident.

The appellant, a self-employed businessman, claimed he was unable to work as a transmission mechanic due to right wrist and shoulder injuries.

The Director's Delegate upheld the arbitrator's decision, finding that the appellant failed to provide credible, independent financial records to establish his pre-accident self-employment income or business losses.

Furthermore, the appellant's credibility was undermined by his failure to disclose a prior wrist fracture and surveillance evidence showing him working after the accident.

The appeal was denied.

The applicant was injured in a motor vehicle accident and sought ongoing income replacement benefits.

Less than three weeks before the arbitration hearing, the insurer requested that the applicant attend an insurer's medical examination (IE) with an orthopaedic surgeon in Toronto.

The applicant, who lived in Port Dover, refused to attend on short notice.

The arbitrator held that the insurer's request was unreasonable, finding that the insurer had delayed requesting the IE for over five years without adequate justification.

The arbitrator concluded that allowing the late request would amount to trial brinkmanship and unfairly prejudice the applicant by likely necessitating an adjournment of the hearing.

The appellant, Algoma Mutual Insurance Co., appealed a decision involving the respondent.

On consent of the parties, the Appeals Delegate ordered that the appeal be dismissed.

The parties agreed that the order is final and not subject to further appeal, variation, revocation, or judicial review.

The appellant insurer appealed an arbitration order finding it responsible for paying accident benefits to the injured respondent.

The respondent was injured while driving a taxi insured by the respondent insurer, but his spouse had a personal automobile policy with the appellant.

The Director's Delegate applied the reasoning from a related appeal and concluded that, because the respondent was the spouse of the named insured under the appellant's policy, section 268(5) of the Insurance Act required him to claim benefits under that policy.

The appeal was dismissed.

The appellant appealed an arbitrator's decision denying him continued weekly income benefits following a motor vehicle accident.

The appellant alleged that the arbitrator demonstrated bias against him and erred in excluding two psychiatric reports submitted late in the hearing.

The Director of Arbitrations found no reasonable apprehension of bias, noting the arbitrator accommodated the unrepresented appellant and conducted the hearing fairly.

The Director also upheld the exclusion of the late medical reports due to lack of timely notice to the insurer.

The arbitrator's findings that the appellant lacked credibility and was not disabled from performing his essential tasks were supported by the evidence.

The appeal was dismissed.