Statutory Accident Benefits Schedule matters (SABS) - OCA

Four individuals injured in a motor vehicle accident received treatment from a chiropractor, who submitted OCF-23 forms to the appellant insurer.

The appellant argued these forms did not constitute a 'completed application for benefits' under s. 2 of O. Reg. 283/95.

The arbitrator and application judge found that the forms provided sufficient particulars to reasonably assist the insurer with processing the application and assessing the claim.

The Court of Appeal dismissed the appeal, confirming that an application need not be on a specific form to trigger the 'pay now, dispute later' obligation, provided it contains sufficient information to commence adjusting the claim.

The insured was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them.

The trial judge found the termination notice was inadequate and ordered ongoing benefits.

On appeal, the Court of Appeal held that an inadequate notice does not entitle an insured to benefits in perpetuity; the insured must still prove ongoing disability.

The Court upheld the trial judge's finding that the insured was no longer disabled by the fall of 1998.

However, the Court agreed that the insured's transition from part-time to full-time work shortly before the accident entitled her to a higher benefit calculation under s. 9(2) of the SABS.

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 appellant was injured in Florida while riding a friend's uninsured dirt bike.

She applied for Statutory Accident Benefits under her standard automobile policy, which covered her own dirt bike.

The insurer denied the claim, and the application judge dismissed her application.

On appeal, the Court of Appeal held that the Florida dirt bike was an 'automobile' within the meaning of the policy, as the policy defined 'automobile' to include 'other automobile driven by you' and the appellant's own dirt bike was insured as an automobile.

The appeal was allowed and a declaration of entitlement to benefits was granted.

The appellant was seriously injured while riding an uninsured dirt bike in Florida.

Her insurer denied her claim for Statutory Accident Benefits (SABs), arguing the dirt bike was not an 'automobile' under her policy.

The application judge dismissed her claim.

On appeal, the Court of Appeal applied the Adams test and found that because the appellant's own dirt bike was insured as an 'automobile' under her policy, the Florida dirt bike of the same make and model also fell within the policy's definition of 'other automobile driven by you'.

The appeal was allowed and a declaration for SABs entitlement was granted.

The respondent was injured in a motor vehicle accident and received income replacement benefits for 104 weeks.

The appellant insurer terminated the benefits, arguing the respondent did not meet the stricter test of suffering a complete inability to engage in any employment for which he was reasonably suited by education, training or experience.

The trial judge found the respondent met the test because he lacked the financial resources to train for long-haul trucking, which was identified as a suitable alternative.

The Court of Appeal allowed the appeal, holding that a job requiring no substantial upgrading or retraining is a suitable alternative, even if the insured lacks formal qualifications at the time of trial.

Manitoba Public Insurance (MPI) brought a motion for directions regarding an unpaid costs award of $12,000 from a priority dispute over accident benefits.

MPI was successful in the underlying arbitration and application, but took no part in the subsequent appeal between Allstate and the Motor Vehicle Accident Claims Fund.

The Court of Appeal ordered Allstate, as the unsuccessful party on the appeal, to pay MPI's $12,000 costs from the lower proceedings, plus $1,000 for the costs of the motion.

The respondent was injured in a rear-end motor vehicle accident and claimed non-earner benefits from his insurer.

The trial judge awarded the benefits, finding the respondent suffered a partial inability to carry on a normal life that developed into chronic pain.

The Court of Appeal allowed the insurer's appeal, holding that the trial judge applied the wrong legal test.

Under the Statutory Accident Benefits Schedule, an insured must demonstrate a complete inability to carry on a normal life within 104 weeks of the accident, which requires showing an impairment that continuously prevents them from engaging in substantially all pre-accident activities.

The respondent failed to provide sufficient evidence of his pre-accident activities to satisfy this threshold.

The appellant insurer appealed a trial judgment allowing the Motor Vehicle Accident Claims Fund's action for restitution of statutory accident benefits paid to an injured passenger.

The appellant argued the Fund was required to proceed by arbitration under the Dispute Regulation rather than by a civil action.

The Court of Appeal dismissed the appeal, holding that while the Fund is an 'insurer' under the regulation, this was a 'proper case' for a restitution action because the parties had engaged in informal discussions past the 90-day arbitration notice period, making arbitration impossible.

The Court also held that the notice provisions of the regulation do not apply to civil restitution claims and that judge-made law regarding the Fund's status as an insurer applies retrospectively.

The appellant insurer appealed an order requiring it to pay interest at the rate provided for by s. 46(2) of the Statutory Accident Benefits Schedule on a sum payable to the respondent insured but unpaid for 19 months.

The Court of Appeal dismissed the appeal, holding that the clear policy intent of s. 46 is compensatory, and it was entirely consistent with that policy to calculate the loss incurred due to the late payment pursuant to s. 46(2).

The plaintiff was rendered an incomplete quadriplegic following a third motor vehicle accident.

Her insurer, ING, terminated her statutory accident benefits, arguing her condition was caused by prior accidents and a pre-existing spinal disease.

The trial judge found the third accident materially contributed to her impairment, granted declarations for ongoing benefits, and awarded aggravated damages and a risk premium.

On appeal, the Court of Appeal upheld the declarations, the application of the material contribution test to accident benefits, and the aggravated damages award.

However, the court allowed the appeal in part to set aside the risk premium, as it is not permitted under the Rules of Civil Procedure.

The insured sought a declaration that a full and final release was null and void due to lack of capacity, undue influence, and the insurer's failure to comply with statutory notice requirements.

The motion judge dealt with the capacity and undue influence issues on a Rule 21 motion, which the Court of Appeal found was an error as those issues depended on disputed facts.

However, on the cross-appeal, the insurer conceded based on recent jurisprudence that its failure to comply with the statutory requirements rendered the release null and void.

The cross-appeal was allowed and the appeal was dismissed as moot.

The appellant was injured in two motor vehicle accidents and received weekly income benefits from her insurer.

The insurer terminated her benefits after 156 weeks, and she subsequently lost her job due to accident-related injuries.

She reapplied for benefits and commenced an action more than two years after the initial termination, arguing that section 26(1) of the Statutory Accident Benefits Schedule creates a second limitation period that begins when an insurer refuses a reapplication for further benefits.

The Court of Appeal dismissed the appeal, holding that section 26(1) contemplates only one limitation period which begins to run from the insurer's initial refusal to pay the benefits claimed.

The plaintiff commenced an action against his insurer for statutory accident benefits.

The plaintiff's counsel sent a settlement offer to the insurer's adjuster, which the insurer's counsel accepted.

When the plaintiff refused to proceed with the settlement because costs were to be assessed rather than fixed, the insurer moved for judgment under Rule 49.

The motions judge dismissed the motion, finding the offer was improperly served and the insurer failed to provide a notice under section 9.1 of the Automobile Insurance Regulation.

The Court of Appeal allowed the insurer's appeal, holding that the technical defect in service did not invalidate the Rule 49 offer, and that section 9.1 does not apply to settlements reached after litigation has commenced.

The appellant insurer sought indemnification from the respondent insurer for statutory accident benefits paid to its insured following a motor vehicle accident in British Columbia.

When the respondent disputed the application of the Ontario Insurance Act, the appellant applied to appoint an arbitrator.

The application judge stayed the application, finding that the British Columbia court was the proper forum to decide the choice of law issue.

The Court of Appeal allowed the appeal, holding that under the Arbitration Act, an arbitrator must make the initial determination of any questions of jurisdiction and applicable law, and the application judge erred by deciding the forum non conveniens issue instead of appointing the arbitrator.

The appellant appealed a decision regarding the limitation period for claiming no-fault benefits.

The insurer had terminated benefits but had not provided a clear and unequivocal refusal to pay.

The Court of Appeal held that the two-year limitation period under s. 281(5) of the Insurance Act applies, which commences only upon a refusal to pay.

The six-year limitation period under s. 45(1)(g) of the Limitations Act does not apply because the Insurance Act specially limits the time for bringing an action.

The appeal was allowed.

The appellant was injured in a motor vehicle accident and settled her claim for statutory accident benefits with her insurer for a lump sum.

She later sued for further benefits, and the insurer relied on the signed release.

The appellant argued the release was invalid because the insurer's written notice did not comply with s. 9.1(2) of Regulation 664 under the Insurance Act.

The Court of Appeal agreed, finding the notice failed to provide an estimate of the commuted value of the benefits and failed to state the maximum benefits available.

The appeal was allowed and the summary judgment dismissing the action was set aside.

The appellant and respondent insurers disputed priority for statutory accident benefits following a fatal accident.

The deceased had exited his tractor trailer and was standing 30 feet away when he was struck by debris from another vehicle.

The arbitrator found the deceased was the 'driver' and thus an 'occupant' of the tractor trailer under the Insurance Act, making the respondent liable.

The appeal judge reversed this finding.

The Court of Appeal allowed the appeal, holding that the statutory definition of 'driver' does not require the person to be engaged in the act of driving or inside the vehicle at the exact moment of the incident, provided they maintain a physical connection and control over the vehicle.

The appellants appealed the dismissal of their action for battery and breach of good faith against their insurer and an independent chiropractor.

The appellant alleged she suffered a vertebrobasilar artery injury due to an unconsented procedure during an independent chiropractic examination arranged by her insurer.

The Court of Appeal upheld the trial judge's finding that the appellant failed to prove the chiropractor performed the alleged procedure.

The Court also found that the appellant had impliedly consented to the examination by attending without objection, and that the insurer's failure to inform her she could refuse attendance did not vitiate this consent or constitute a breach of good faith.

The appeal concerned whether weekly no-fault benefits paid under s. 13 of the pre-1994 Statutory Accident Benefits Schedule were deductible from an award of general damages in a motor vehicle personal injury action.

Applying the no-double-recovery approach from prior appellate authority, the court held that deductibility depends on whether the statutory benefit is akin to the same head of loss as the damages award.

The court concluded that s. 13 benefits are more akin to damages for loss of income than to general damages because they are weekly, age-linked, coordinated with income loss benefits, and directed at those prevented from seeking employment or education.

The appeal was allowed, the Divisional Court order was quashed, and the motions judge's order was restored.