Lee Samis

Farmers' Mutual Insurance Company (Lindsay) appealed an arbitration decision that found its commercial umbrella liability policy covered Statutory Accident Benefits Schedule (SABS) benefits for an all-terrain vehicle (ATV) accident.

The court, reviewing for reasonableness, found the arbitrator erred in interpreting the definition of 'automobile' within the Umbrella policy.

However, the court concluded that the ATV was covered under Farmers' standard Ontario Automobile Policy (OAP) via the 'Newly Acquired Automobiles' provision, due to the Umbrella policy's effect on the OAP's prerequisite that the insurer insure all automobiles owned by the insured.

Consequently, Farmers' appeal was dismissed, and the Minister of Finance's cross-appeal was allowed, affirming Farmers as the priority insurer responsible for SABS benefits.

The applicant was injured in a motor vehicle accident and applied for a catastrophic impairment designation under the Statutory Accident Benefits Schedule.

The insurer argued the applicant required a below-knee amputation and assessed her as an amputee, resulting in a 35% Whole Person Impairment (WPI) rating.

The applicant's assessors found her to be wheelchair dependent, resulting in an 80% WPI rating under the Gait Derangement Table, and also found significant psychological impairments.

The Arbitrator preferred the applicant's assessors, finding that the insurer's assessors failed to evaluate the applicant as she presented herself.

The Arbitrator concluded the applicant was wheelchair dependent and met the definition of catastrophic impairment.

Following the dismissal of a summary judgment motion brought by certain defendants, the plaintiff sought costs on a partial indemnity basis.

The responding defendants did not object to the quantum requested.

The court found the plaintiff’s requested costs reasonable and ordered payment accordingly.

The decision also corrected a typographical error in the court’s earlier reasons for judgment regarding which party amended a statement of defence.

Contractors and subcontractors moved for summary judgment seeking dismissal of a negligence and property damage claim arising from a water leak during mechanical system upgrades to a commercial building.

They argued that a builder’s risk insurance obligation contained in a long‑term land lease between the building owner and its landlord created a subrogation bar protecting them as third‑party beneficiaries.

The court held that the construction contract governing the work contained an “entire agreement” clause and expressly allocated responsibility for builder’s risk insurance to the contractor.

Because the defendants were strangers to the land lease and had neither relied upon nor bargained for its provisions, the lease could not override the later construction contract or confer a defence through the privity exception.

The insurance provision in the land lease therefore did not bar the plaintiff’s action.

Following a successful motion for security for costs, the defendant sought an award of costs for the motion on a partial indemnity basis.

The plaintiff did not dispute entitlement but argued the defendant achieved only partial success, claimed excessive costs, and requested that any award be in the cause rather than payable immediately.

The court held the moving party was substantially successful and rejected arguments that the award should be reduced for limited success.

While the amount claimed exceeded what would normally be expected for such a motion, the court accepted that additional work caused by late filings, expedited cross-examinations, and the complexity of the underlying action justified a higher award, subject to reduction for duplication of effort.

Costs were fixed and ordered payable within 30 days pursuant to the Rules of Civil Procedure.

The defendant insurer brought a motion for security for costs against a corporate plaintiff in bankruptcy alleging a conspiracy by insurers to destroy its accident-benefits clinic business.

The court considered the framework under Rule 56.01 of the Rules of Civil Procedure, including whether the plaintiff established impecuniosity, whether the claim had a good chance of success, and whether delay justified refusing the order.

The court found the plaintiff failed to demonstrate genuine efforts to obtain funding from creditors or shareholders and therefore did not establish impecuniosity.

The plaintiff also failed to demonstrate a good chance of success on the evidence presented, and the defendant had not delayed unreasonably in bringing the motion.

Security for costs was ordered in staged amounts.

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

At the outset of the arbitration hearing, the parties requested an adjournment to allow for global mediation, which was granted.

The arbitrator also ruled on preliminary issues regarding witness availability and document production.

The insurer was ordered to make its physiatrist and claims specialist available for cross-examination, and to produce its complete file up to the date of mediation, subject to claims of privilege.

The defendant landlord brought a motion for summary judgment to dismiss a subrogated claim by the plaintiff tenant's property insurer.

The claim arose from water damage caused by a burst pipe.

The landlord relied on an exculpatory clause in the commercial lease stating it was not liable for damage to the tenant's property 'however caused'.

The court dismissed the motion, finding that the lease only required the tenant to obtain public liability insurance, not property insurance, and that the scope and application of the exculpatory language raised genuine issues requiring a trial.

The appellant suffered severe physical and psychological injuries, including a leg amputation and clinical depression, in a motor vehicle accident.

He sought enhanced statutory accident benefits, arguing he was catastrophically impaired.

The trial judge held that physical and psychological impairments could not be combined under section 2(1.1)(f) of the Statutory Accident Benefits Schedule to meet the 55 per cent whole person impairment threshold.

The Court of Appeal reversed this decision, finding that the language of the Schedule, the purpose of the American Medical Association's Guides, and the goals of the statutory scheme permit the combination of physical and psychiatric impairments to determine catastrophic impairment.

The applicant insurer sought judicial review of a Director's Delegate decision which upheld an arbitrator's finding that the Motor Vehicle Accident Claims Fund was not required to pay statutory accident benefits.

The arbitrator found no nexus between the claimant and the Fund, concluding the claimant's choice to apply to the Fund was arbitrary.

Applying a reasonableness standard of review, the Divisional Court upheld the decision, noting the claimant provided no rational basis for applying to the Fund.

The application for judicial review was dismissed.

The appellant insurer appealed an arbitrator's decision finding that the respondent insured sustained a catastrophic impairment.

The central issue was whether physical and psychological impairments could be combined to reach the 55% whole person impairment threshold under clause 2(1.1)(f) of the Statutory Accident Benefits Schedule.

The Director's Delegate dismissed the appeal, holding that the Schedule is unambiguous and permits the combination of physical and psychological impairments.

The Delegate found that excluding psychological impairments would be inconsistent with the remedial nature of the legislation and the inclusive definition of impairment.

The appellant insurer sought a stay of an arbitrator's decision finding the respondent catastrophically impaired pending its appeal.

The arbitrator had combined physical and psychological impairments to reach the catastrophic impairment threshold.

Applying the Scavuzzo criteria, the Director's Delegate denied the stay, finding that the insurer failed to demonstrate that its hardship outweighed the respondent's hardship, and noting that the arbitrator's decision merely broadened potential benefit coverage rather than ordering immediate payment.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits from the Motor Vehicle Accident Claims Fund, despite a police report indicating the vehicle he was in was insured by Wawanesa.

The Fund refused to pay, arguing the application was incomplete without the police report and there was an insufficient nexus.

The arbitrator found the application was complete but agreed there was an insufficient nexus because the applicant's choice to apply to the Fund was arbitrary, as he took no steps to determine if other insurance was available.

The Director's Delegate dismissed the appeals by the applicant and Wawanesa, confirming that an applicant must have some basis for believing coverage is unavailable elsewhere before applying to the Fund as the insurer of last resort.

The applicant was injured in a motor vehicle accident and sought a determination of catastrophic impairment.

Her assessor combined physical and psychological impairments to reach a 55% whole person impairment, following the methodology in Desbiens v. Mordini.

The insurer's assessors refused to assign numeric ratings to psychological impairments, finding only a 20% impairment.

The arbitrator held that the Desbiens approach is binding and correct in law, allowing the combination of physical and psychological impairments.

Furthermore, the arbitrator found that issue estoppel applied, as the insurer had previously litigated and lost this exact issue against the applicant before the Director.

The applicant was declared catastrophically impaired.

The insured's vehicle was damaged when her daughter, experiencing an acute psychotic episode, drove it across three lanes of traffic and into a tree.

The insurer denied coverage, arguing the daughter's actions were intentional.

The trial judge found the loss was 'accidental' as the daughter lacked conscious control of the vehicle.

The Divisional Court dismissed the insurer's appeal, upholding the trial judge's finding and further noting that the innocent insured owner was entitled to coverage regardless, as the event was unexpected from her perspective.

The applicant, a four-year-old who suffered a severe brain injury in a motor vehicle accident, claimed attendant care benefits for care provided by his parents while he was a patient at a rehabilitation hospital.

The insurer denied the claim, arguing that the hospital had OHIP-funded attendant care available which the parents failed to access, making the parents' care not "reasonable and necessary" under section 16 of the Statutory Accident Benefits Schedule.

The arbitrator found that while auto insurers are generally insurers of last resort and available hospital funding should be accessed first, the parents in this specific case were not informed about the available funding and were encouraged to use their auto insurance.

Therefore, it was reasonable for the parents to provide the care themselves.

The insurer was ordered to pay the agreed quantum of $3,418.33 for the attendant care expenses.

The insurer requested that the Director of Arbitrations state a case to the Divisional Court under s. 285(1) of the Insurance Act regarding whether physical and psychological impairments can be combined to determine catastrophic impairment under the Statutory Accident Benefits Schedule.

The Director declined the request, finding that FSCO arbitrators have the specialized expertise to interpret the SABS and that the existing jurisprudence on the issue was not internally inconsistent.

The matter was directed to proceed to arbitration in the normal course.

The appellant insurer appealed a summary judgment decision finding it failed to comply with s. 64(14) of the Statutory Accident Benefits Schedule when terminating the respondent's benefits.

The Court of Appeal dismissed the appeal, holding that the motion judge correctly assessed the issue of compliance.

The Court also upheld the award of compound interest under s. 68 of the Schedule, finding no unusual circumstances to justify a different conclusion.

The appellant appealed a jury's allocation of fault in a motor vehicle accident case, arguing the negligence particulars were unsustainable and that the respondent's opening address was highly prejudicial.

The Court of Appeal dismissed the appeal, finding the negligence particulars were supported by the pleadings and evidence.

While the opening address was improper, the trial judge's clear and blunt corrective instruction to the jury was sufficient to cure the prejudice.

The appeal was dismissed with no costs.

The defendants appealed a jury's damages award.

Both parties acknowledged that the damages awarded by the jury were so high as to justify appellate intervention.

The Court of Appeal allowed the appeal and substituted lower pecuniary and non-pecuniary damage awards for the respondents.

On consent, no order for costs was made.