Nicholaus Andreas De Koning

This appeal concerns the interpretation of Ontario's Statutory Accident Benefits Schedules regarding attendant care benefits (ACBs) for a catastrophically injured individual.

The key issues were whether an applicant for ACBs must demonstrate "urgency, impossibility, or impracticability" to claim retroactive benefits under s. 42(5) of the 2010 Schedule, and whether the definition of "incurred" from s. 3(7)(e) of the 2010 Schedule applies to claims arising from accidents predating its enactment (specifically, the 1996 Schedule).

The Court of Appeal found that s. 42(5) relates to the timing of payment, not eligibility, and does not impose a "urgency" test for retroactive claims.

It further held that the definition of "incurred" in the 2010 Schedule does not apply to claims governed by the 1996 Schedule, based on a careful reading of the transitional provisions.

The appeal was allowed, entitling the applicant to retroactive ACBs without substantiation under the 2010 Schedule's "incurred" definition.

The applicant sought statutory accident benefits following a 2017 motor vehicle accident, claiming she sustained a catastrophic impairment due to mental and behavioural disorders.

The Tribunal found that the accident was a necessary cause of her psychological impairments, despite a pre-existing medical history.

Applying the Guides, the Tribunal concluded the applicant suffered a marked impairment in all four spheres of functioning.

The Tribunal awarded attendant care benefits and occupational therapy services, but denied claims for certain assistive devices.

The moving party insurer brought a motion to dismiss the plaintiff's action, arguing that the Personal Excess Liability Policy Endorsement in the deceased's homeowner's policy did not provide coverage for the motor vehicle accident.

The plaintiff's common-law spouse was killed in a collision with a motorist who had $1,000,000 in liability coverage, which equalled the limits of the plaintiff's OPCF 44R family protection coverage.

The court held that the undefined term 'inadequately insured motorist' in the excess endorsement adopted the definition from the underlying auto policy.

Because the third-party motorist's limits were not less than the plaintiff's OPCF 44R limits, the motorist was not inadequately insured, and the excess endorsement was not triggered.

The action against the insurer was dismissed.

The applicant sought reconsideration of a Licence Appeal Tribunal decision denying his claim for income replacement benefits.

The applicant argued that the Tribunal heard misleading evidence because his family physician failed to bring clinical notes to the hearing.

The Associate Chair denied the request, finding that a witness being ill-prepared does not constitute false or misleading evidence under Rule 18.2(c), which requires an intention to deceive.

Furthermore, the clinical notes did not qualify as new evidence under Rule 18.2(d) because they existed prior to the hearing and could have been obtained earlier.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the 104-week mark, at which point the respondent terminated them.

The applicant applied to the Licence Appeal Tribunal for ongoing benefits, arguing he suffered a complete inability to engage in any suitable employment due to physical and psychological impairments.

The Tribunal dismissed the application, finding the applicant's medical evidence failed to address the more stringent post-104 week test and lacked specific diagnoses.

The Tribunal accepted the respondent's expert evidence that the applicant could return to work and had alternative vocational options.

The respondent taxi driver was assaulted by a passenger, pushed, and slipped on ice while attempting to close the van door, resulting in a fractured leg.

The insurer appealed the arbitrator's decision that the incident constituted an 'accident' under the Statutory Accident Benefits Schedule.

The Director's Delegate dismissed the appeal, finding that the use or operation of the vehicle was a direct cause of the impairment and that the assault and slipping on ice were not intervening acts that broke the chain of causation.

The appellant, a minor, appealed an Arbitrator's decision ordering him to pay $3,172.50 in arbitration expenses to the respondent insurer after his application for arbitration was withdrawn.

The Director's Delegate allowed the appeal, finding that the Arbitrator failed to provide adequate reasons for the expense award, which constituted a breach of natural justice.

The Arbitrator had merely stated the parties' positions and a bald conclusion without explaining the basis for finding the expenses reasonable.

The decision was rescinded and the matter remitted for a rehearing before a different Arbitrator.

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

She elected to receive caregiver benefits instead of income replacement benefits.

The insurer sent contradictory Explanations of Benefits regarding her eligibility for income replacement benefits.

More than two years later, she applied for mediation for income replacement benefits.

The Arbitrator dismissed the application as time-barred.

On appeal, the Director's Delegate found that the insurer's denial was not clear and unequivocal due to the contradictory notices, meaning the two-year limitation period was not triggered.

Furthermore, because the initial election was invalid, the 30-day time limit to re-elect was negated.

The appeal was allowed, permitting the appellant to pursue her claim for income replacement benefits.

The Applicant sought payment for two treatment plans (OCF-18s) proposing neuropsychometric testing and a mental health assessment, following a motor vehicle accident.

The Insurer had already approved a neuropsychological assessment but denied the other two, arguing they were duplicative and an attempt to circumvent the $2,000 statutory cap per assessment under s. 25(5) of the Schedule.

The Arbitrator found that the Applicant failed to prove the disputed assessments were reasonable and necessary, noting that the requested funding for the neuropsychometric testing exceeded the maximum hourly rate for the time spent, and the mental health assessment was duplicative of previous assessments.

The preliminary issue was resolved in favour of the Insurer.

The Insurer requested an expense hearing following an arbitration decision where the Applicant was only marginally successful, recovering $7,119.94 out of claims potentially worth millions.

The Arbitrator found that the Insurer was predominantly successful and that the Applicant's conduct, including multiple interim benefit motions and failures to produce documents, prolonged and hindered the proceedings.

Applying a 3:1 ratio for preparation to hearing time, the Arbitrator ordered the Applicant to pay the Insurer's expenses fixed at $18,892.61, inclusive of fees, disbursements, and taxes.

The applicant was injured in a motor vehicle accident and elected to receive caregiver benefits instead of income replacement benefits.

The insurer terminated the caregiver benefits in December 2008.

In 2011, the applicant sought income replacement benefits, arguing her initial election was invalid because the insurer failed to provide required information under the Statutory Accident Benefits Schedule.

The arbitrator found that while the initial election was invalid, the insurer's 2008 refusal of income replacement benefits was clear and unequivocal, triggering the two-year limitation period.

As the applicant did not seek mediation until 2013, the application for arbitration was dismissed as time-barred.

The arbitrator ordered an 11-year-old minor to personally pay the respondent's arbitration legal expenses of $3,172.50.

The minor appealed and sought a stay of the order.

The Director's Delegate granted the stay, noting that proceedings involving minors must be brought through a litigation guardian who acknowledges liability for costs.

The appeal was put over to allow the parties to request the arbitrator to amend the title of proceedings and the expense order to reflect that any costs are payable by the litigation guardian, not the minor personally.

The applicant, a taxi driver, was assaulted by passengers and subsequently fell into a ditch while attempting to close the van's door.

He applied for statutory accident benefits, but the insurer disputed whether the incident constituted an 'accident' under section 3(1) of the Statutory Accident Benefits Schedule.

The arbitrator applied the purpose and causation tests from Greenhalgh, finding that the taxi was being used for its ordinary purpose and that the entire series of events, starting with the use of the automobile, directly caused the impairment.

The arbitrator concluded that the applicant was involved in an accident.

The applicant, a minor injured in a motor vehicle accident, applied for statutory accident benefits and subsequently applied for arbitration.

Shortly before the scheduled hearing, the applicant withdrew the application.

The insurer sought its legal expenses, arguing the application lacked merit and the applicant failed to comply with production orders.

The arbitrator found the insurer's requested legal fees reasonable but denied out-of-pocket disbursements.

The applicant was ordered to pay the insurer's legal expenses fixed at $3,172.50.

The appellant was injured in a motor vehicle accident and claimed a catastrophic impairment due to a mental or behavioural disorder, along with attendant care and housekeeping expenses.

The Arbitrator dismissed the claims, finding the appellant not credible and relying on surveillance evidence that contradicted his self-reported limitations.

On appeal, the Director's Delegate confirmed the Arbitrator's decision, holding that the appeal raised no questions of law and that the Arbitrator's factual findings were supported by the evidence.

The appeal was dismissed with costs awarded to the respondent insurer.

The applicant was injured in a motor vehicle accident and applied for a determination of catastrophic impairment based on a mental or behavioural disorder.

The insurer's psychiatric assessor concluded she had a moderate impairment, while the applicant's assessors found a marked impairment in adaptation to work or work-like settings.

The arbitrator preferred the evidence of the applicant's assessors, finding their conclusions consistent with her real-world functioning and psychometric testing.

The arbitrator held that the applicant suffered a marked impairment in adaptation and therefore met the definition of catastrophic impairment.

Following the dismissal of the applicant's claim for statutory accident benefits, the insurer sought its expenses for the arbitration.

The applicant had failed to attend the hearing and her claim was found to have been concocted.

The arbitrator reviewed the insurer's bill of costs, which included legal fees capped at the legal aid tariff rate and disbursements including an engineering report and travel expenses.

The arbitrator found the claimed expenses reasonable and ordered the applicant to pay $4,865.43 to the insurer.

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

The appellant insurer terminated certain benefits, and the respondent applied for mediation and later arbitration.

The insurer appealed a preliminary arbitration decision which found that the respondent's claims were not statute-barred.

On appeal, the Director's Delegate found that the arbitrator erred in law regarding the 'clear and unequivocal refusal' prerequisite and the waiver of the limitation defence.

However, the Delegate upheld the arbitrator's findings that there was evidence supporting the conclusion that the insurer failed to communicate its refusal to pay Income Replacement Benefits, and that the arbitration was validly commenced within the 90-day extension period despite the initial omission of the filing fee.

The appeal was dismissed.

The appellant insurer sought to appeal an arbitrator's preliminary issue order which dismissed its motion to find the respondent's claims for statutory accident benefits statute-barred.

The Director's Delegate considered whether to accept the appeal before the main arbitration hearing.

Noting that the parties had already adjourned the main hearing pending the potential appeal, the Director's Delegate exercised his discretion to accept the appeal to avoid having the matter sit on hold, and set a timeline for written submissions.

The insured was injured in a motor vehicle accident and claimed statutory accident benefits for twenty-nine treatment plans.

The Arbitrator dismissed most claims but found six plans, totaling $6,398.23, were deemed approved because the insurer failed to respond.

On appeal, the Director's Delegate revoked this order, holding that under s. 38(8.2) of the SABS, an insurer is only required to pay for goods and services actually provided under the treatment plan.

Since the Arbitrator found it impossible to determine what treatment had been administered, the insurer was not required to pay for the plans.