Statutory Accident Benefits Schedule matters (SABS) - ODC

The appellant appealed a Licence Appeal Tribunal decision that barred her application for statutory accident benefits based on res judicata.

The Tribunal had previously determined her injuries fell within the Minor Injury Guideline (MIG).

The appellant argued the insurer failed to provide proper notice under s. 38(9) of the Statutory Accident Benefits Schedule and that new medical evidence warranted waiving res judicata.

The Divisional Court dismissed the appeal, finding the insurer had previously provided the required notice and was not obligated to issue repeated notices.

The court also upheld the Tribunal's finding that the proposed fresh evidence could have been obtained earlier and did not justify waiving res judicata.

The appellant was injured in a workplace accident and received WSIB benefits while retraining at an architectural firm.

He was subsequently injured in a motor vehicle accident, rendering him a paraplegic and unable to continue his retraining, which reduced his WSIB benefits.

He applied for income replacement benefits under the SABS, but his insurer denied the claim on the basis that he was not 'employed' at the time of the accident.

The Divisional Court allowed the appeal, finding that the Licence Appeal Tribunal erred in its interpretation of 'employed' by requiring an exchange of wages for services, and held that the appellant's employment relationship and receipt of employment-related income satisfied the statutory requirement.

The moving party sought an extension of time to appeal a decision of the Licence Appeal Tribunal denying statutory accident benefits.

The motion was brought nearly five months after the deadline.

Applying the four-factor test for extending time, the court found that while the moving party intended to appeal and there was no prejudice to the respondent, the delay was poorly explained and the proposed appeal lacked merit.

The proposed appeal improperly sought to challenge findings of fact, whereas appeals from the Tribunal are restricted to questions of law.

The motion was dismissed.

The appellant was injured when the public transit bus she was riding stopped abruptly, throwing her forward.

She sought statutory accident benefits, which were denied by the Licence Appeal Tribunal under s. 268(1.1) of the Insurance Act because the bus did not collide with another vehicle or object.

On appeal, the appellant argued she constituted 'any other object' under the statute.

The Divisional Court dismissed the appeal, holding that the plain wording and context of the provision require the object to be outside the vehicle, and a bus does not collide with a person inside it.

The appellant insurer appealed a Licence Appeal Tribunal (LAT) decision finding that a wheel loader was an 'automobile' for the purposes of statutory accident benefits.

At the LAT hearing, both parties conceded that the wheel loader was not an automobile in ordinary parlance, focusing their arguments on the third part of the Adams test.

However, the LAT decided the case based on the first part of the test without seeking further submissions.

The Divisional Court allowed the appeal, holding that the LAT breached procedural fairness by rejecting the parties' concession without giving them an opportunity to make full submissions on the issue.

The matter was remitted to a different adjudicator.

The applicant sought judicial review of a Licence Appeal Tribunal decision that found she had not sustained a catastrophic impairment following a motor vehicle collision.

The applicant argued the Tribunal unreasonably rejected expert evidence that her accident-related sleep impairments resulted in a 9% whole person impairment rating.

The Divisional Court dismissed the application, finding the Tribunal reasonably concluded there was a lack of causal evidence linking the sleep impairment to the accident and that the Tribunal's reasons were justified, transparent, and intelligible.

The applicant insurer appealed and sought judicial review of a Licence Appeal Tribunal reconsideration decision finding that the respondent, a 19-year-old student athlete who was rendered tetraplegic in a motor vehicle accident, was principally dependent on his sister for care and therefore an insured person under her automobile insurance policy.

The Divisional Court found that the adjudicator identified the correct legal principles regarding dependency and reasonably applied them to the evidence, which showed the respondent relied on his sister for physical and emotional support despite living away for school.

The appeal and judicial review were dismissed.

The Ontario Trial Lawyers Association (OTLA) brought a motion for leave to intervene as a friend of the Court in an appeal concerning the interpretation of 'minor injury' under the Statutory Accident Benefits Schedule.

The court dismissed the motion, finding that OTLA's proposed submissions overlapped substantially with the appellant's factum and that the perspective and interests were adequately represented without OTLA's involvement.

The court concluded that OTLA was unlikely to make a useful contribution to the resolution of the appeal.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario.

The Director's Delegate had overturned a preliminary arbitration order that found the respondent insured's application for mediation was time-barred.

The Divisional Court held that the Director's Delegate was reasonable in concluding that the two-year limitation period under the Insurance Act and the Statutory Accident Benefits Schedule did not begin to run until the insurer provided notice of refusal to pay following a negative Designated Assessment Centre report, rather than from the initial notice of stoppage of benefits.

The application for judicial review was dismissed.

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.

The insured was injured in a motor vehicle accident and subsequently developed a crack cocaine addiction.

He applied for attendant care benefits to supervise him and prevent drug abuse, which the insurer denied on the basis that he was not catastrophically impaired.

An arbitrator later found the insured was catastrophically impaired and ordered the insurer to pay past attendant care benefits, even though the insured had not actually received or paid for the care during that period.

The Director's Delegate upheld this decision.

On judicial review, the Divisional Court dismissed the insurer's application, holding that it was not patently unreasonable to interpret 'incurred' as including reasonable and necessary expenses that would have been provided but for the insurer's improper denial of benefits.

The plaintiff sued a doctor and an assessment company for bad faith, intentional interference with economic relations, and negligence arising from an independent medical examination report that led to the termination of her statutory accident benefits.

The defendants moved for summary judgment, arguing the report was protected by witness immunity and absolute privilege, and that they owed no duty of care to the plaintiff.

The motion judge dismissed the motion, finding genuine issues for trial regarding the scope of the duty of care in the context of the statutory scheme and whether immunity applied to allegations of intentional injury.

The Divisional Court dismissed the defendants' appeal, holding that the plaintiff's claims raised important policy issues and genuine issues of fact that required a full trial.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario.

The Arbitrator had found that a treatment provider forged the insureds' signatures to commence an arbitration for accident benefits after the claim was already settled.

The Arbitrator added the provider as a party and ordered him to pay the arbitration expenses due to his flagrant abuse of process.

The Director's Delegate overturned the expense order, finding the Arbitrator lacked jurisdiction to make such an order against a non-party.

The Divisional Court quashed the Director's Delegate's decision, holding that section 23(1) of the Statutory Powers Procedure Act grants the tribunal broad powers to control its process, including the jurisdiction to order an abuser of the process to compensate innocent parties for expenses incurred.

The applicant insurer sought judicial review of a decision by the Financial Services Commission of Ontario granting the respondent an extension of time to appeal an arbitrator's decision.

The arbitrator had previously dismissed the respondent's claim for income replacement benefits as statute-barred.

The Director's Delegate extended the time to appeal because a recent Supreme Court of Canada decision raised a novel issue of broad significance regarding limitation periods.

The Divisional Court dismissed the application for judicial review, finding that the Director's Delegate's discretionary decision to extend the time was not patently unreasonable.

The plaintiff sought leave to appeal an order staying his action for statutory accident benefits pending the return of $10,000 in settlement monies and a failed mediation.

The plaintiff argued he was incapacitated at the time of the purported settlement.

The court denied leave to appeal, finding no reason to doubt the correctness of the order, as incapacity does not prevent mediation or the return of funds.

No costs were awarded due to the plaintiff's impecuniosity.

The plaintiff sought leave to appeal an order staying his action for statutory accident benefits pending the return of $10,000 paid under a disputed settlement and the completion of a failed mediation.

The court found no reason to doubt the correctness of the motion judge's order, noting that the plaintiff's alleged incapacity at the time of settlement did not prevent mediation or the return of funds.

The application for leave to appeal was dismissed with no order as to costs due to the plaintiff's impecuniosity.

The plaintiff was injured in a motor vehicle accident while driving with an expired driver's licence.

The insurer terminated his Income Replacement Benefits and Loss of Earning Capacity Benefits.

The plaintiff sued, relying on relief from forfeiture under s. 129 of the Insurance Act.

The motion judge dismissed the insurer's summary judgment motion.

On appeal, the Divisional Court set aside the motion judge's decision, holding that relief from forfeiture under s. 129 of the Insurance Act or s. 98 of the Courts of Justice Act is not available where an overriding statutory provision precludes coverage.

The action for those benefits was dismissed.

The plaintiff sought leave to appeal a decision regarding the commencement date of litigation privilege over certain documents in an accident benefits dispute.

The plaintiff argued that the judge erred in accepting a bald assertion by the defendant's lawyer as sufficient evidence to meet the dominant purpose test for litigation privilege.

The court granted leave to appeal, finding that the decision conflicted with established authorities and that there was good reason to doubt its correctness, satisfying the test under Rule 62.02(4)(a) and (b).

The Ministry of Transportation sought to recover $600 paid to a fire department for first aid services provided to victims of a motor vehicle accident from the at-fault driver and owner.

The Small Claims Court dismissed the action.

On appeal, the Divisional Court upheld the dismissal, finding that the claim was for health care expenses rather than property damage.

Under section 267.5(3) of the Insurance Act, the at-fault driver and owner are immune from liability for health care expenses arising from the use or operation of an automobile.

The moving parties sought leave to appeal a decision regarding the sufficiency of settlement documents and compliance with regulations prior to the commencement of litigation.

The Divisional Court dismissed the motion, finding that the motions judge correctly applied established legal principles to uncontested facts and that the proposed appeal raised no question of general public importance.

Costs of $2,000 were awarded to the respondent.