Statutory Accident Benefits Schedule matters (SABS) - ODC

The moving party insurer sought to stay a FSCO Director's Delegate decision pending judicial review.

The underlying decision denied the insurer the right to recover approximately $10,000 in overpaid income replacement benefits resulting from the insured's retroactive receipt of CPP benefits.

The court granted the stay, applying the RJR-MacDonald test.

The court found a serious issue to be tried, that the insurer would suffer irreparable harm without a stay due to the insured's limited income, and that the balance of convenience favoured the insurer because the insured was already receiving her proper ongoing benefits.

The applicants sought judicial review of a Director's Delegate decision finding that post-accident business income from a family pharmacy should be deducted from the applicant's income replacement benefits (IRBs) under s. 7(3)(b) of the Statutory Accidents Benefits Schedule (SABS).

The applicant argued that 'earned' income required active engagement in the business.

The Divisional Court upheld the Director's Delegate's decision as reasonable, agreeing that a contextual interpretation of the SABS focuses on the profit and loss of the business rather than requiring active participation by the self-employed person.

The applicant sought judicial review of a Director's Delegate decision confirming an Arbitrator's finding that he was not catastrophically impaired following a motor vehicle accident.

The applicant argued the Arbitrator erred in law by relying on surveillance evidence, the applicant's presentation at the hearing, and a psychiatrist's report.

The Divisional Court dismissed the application, finding that the issues raised were questions of fact and the weighing of evidence, not errors of law, and that the Director's Delegate's decision was reasonable.

The appellant insurer appealed a Licence Appeal Tribunal (LAT) decision finding that an incident where the respondent was bumped by a car door and subsequently punched in the face constituted an 'accident' under the Statutory Accident Benefits Schedule.

The parties had agreed to a written preliminary issue hearing based on a specific question.

However, the LAT adjudicator unilaterally restated the issue in the final decision without notifying the parties.

The Divisional Court held that this breached procedural fairness, as the appellant was denied the opportunity to know the case to be met and to present relevant evidence and arguments.

The appeal was allowed, the decision quashed, and the matter remitted to a different adjudicator.

The applicant insurer sought judicial review of a decision by a delegate of the Financial Services Commission of Ontario, which upheld an arbitrator's ruling that the respondent insured's claim for income replacement benefits was not statute-barred.

The insurer conceded that its notice of denial did not meet the strict requirements set out in Smith v. Co-operators General Insurance Company, but argued that the delegate should have applied a contextual approach rather than a bright-line test.

The Divisional Court dismissed the application, finding that the delegate reasonably applied the bright-line test from Smith.

The court noted that the Court of Appeal in Golic confirmed that the analysis must focus on the notice itself, precluding consideration of outside circumstances to relieve an insurer of its obligation to provide proper notice.

The applicant sought judicial review of a Licence Appeal Tribunal decision which found her claim for attendant care and housekeeping benefits was statute-barred.

The applicant argued that the limitation period should not begin to run until she was found to be catastrophically impaired, relying on the doctrine of discoverability.

The Divisional Court dismissed the application, holding that the limitation period under the Statutory Accident Benefits Schedule is a 'hard' limitation period triggered by the insurer's clear and unequivocal refusal to pay the benefit, regardless of whether the claimant is aware they have a claim at that time.

The appellant appealed a Licence Appeal Tribunal decision dismissing her application for non-earner benefits.

The LAT had found her application void because she failed to elect between non-earner and income replacement benefits before commencing the proceeding, as required by section 35 of the Statutory Accident Benefits Schedule.

The Divisional Court dismissed the appeal, finding no error of law in the LAT's determination that an election was required and that a dispute could not exist until the insurer had made a decision following that election.

The appellant insurer appealed a License Appeal Tribunal decision finding that its failure to provide compliant notices denying treatment plans under s. 38 of the Statutory Accident Benefits Schedule precluded it from relying on the Minor Injury Guideline limits.

The Divisional Court dismissed the appeal, holding that the Adjudicator reasonably interpreted s. 38(11) to mean that a non-compliant notice requires the insurer to pay for the goods and services in the specific treatment plan without the $3500 limit applying, until a compliant notice is given.

The appellant insurer appealed a decision of the Licence Appeal Tribunal finding that the respondent was involved in an 'accident' under the Statutory Accident Benefits Schedule.

The respondent was injured while 'car surfing' on the rear bumper of a moving vehicle.

The Divisional Court dismissed the appeal, upholding the adjudicator's application of the purpose test.

The court found that while reckless, the vehicle was being used for its normal purpose of transportation, and thus the incident constituted an accident.

The applicant sought judicial review of two costs orders made by FSCO adjudicators after her claim for a $1,378.68 medical assessment expense was dismissed due to her failure to attend a required medical examination.

The Divisional Court dismissed the application regarding the first-instance costs order as premature because an internal appeal was still pending.

The court dismissed the application regarding the appeal costs order on its merits, finding the Director's Delegate's decision was reasonable, procedurally fair, and justified given the applicant's complete lack of success and conduct that prolonged the proceedings.

The applicant sought judicial review of a Licence Appeal Tribunal (LAT) decision denying her catastrophic impairment benefits.

After the decision, the applicant received an anonymous letter alleging the LAT's executive chair had changed the adjudicator's decision.

Evidence revealed the LAT had an unwritten peer review process where the executive chair reviewed draft decisions.

The Divisional Court held that this process breached the rules of adjudicative independence because consultation was imposed by a superior level of authority rather than requested by the adjudicator.

The decision was set aside and remitted for a new hearing.

The applicant sought judicial review of an arbitrator's decision dismissing his claim for non-earner and housekeeping benefits under the Statutory Accident Benefits Schedule following a motor vehicle accident.

The applicant argued that the insurer's failure to promptly respond to his application created a deemed entitlement to benefits, and that the arbitrator erred in applying causation principles given his multiple accidents.

The Divisional Court dismissed the application, finding the arbitrator reasonably concluded that the insurer's delay did not create a deemed entitlement where the insured failed to prove entitlement.

The court also upheld the arbitrator's factual findings that the applicant failed to prove the accident caused his impairments or a complete inability to carry on a normal life, noting his condition was essentially unchanged from pre-existing injuries.

The applicants sought judicial review of a FSCO Director's Delegate decision that upheld an arbitrator's exclusion of the applicant's documents and witnesses due to late service, and ordered costs personally against the applicant's lawyers.

The Divisional Court dismissed the application, finding no denial of procedural fairness in the refusal to allow an affidavit explaining the delay or in the exclusion of non-expert witnesses.

The court also held that the order for costs against the lawyers personally was reasonable given the blatant disregard of the procedural rules.

The applicant insurer sought judicial review of a Director's Delegate's appeal decision regarding a catastrophic impairment determination under the Statutory Accident Benefits Schedule.

The Delegate had overturned an arbitrator's finding that combining impairment ratings for a physical brain injury and a separate psychological disorder constituted impermissible 'double counting'.

The Delegate also remitted the issue of medication impairment back to arbitration and upheld a 4% rating for scarring.

The Divisional Court applied the reasonableness standard of review and dismissed the application, finding the Delegate's interpretation of the AMA Guides and the Schedule fell within the range of acceptable outcomes.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario regarding the respondent insured's entitlement to income replacement benefits following a motor vehicle accident.

The Director's Delegate had upheld the arbitrator's award of income replacement benefits but remitted other issues for re-hearing due to inadequate reasons.

The insurer argued the Director's Delegate breached procedural fairness and provided inadequate reasons by not remitting all issues.

The Divisional Court dismissed the application, finding no breach of procedural fairness and concluding that the Director's Delegate's reasons were adequate and reasonable.

The appellant appealed a License Appeal Tribunal decision denying him income replacement benefits following a motor vehicle accident.

The adjudicator had preferred the medical evidence of the respondent's physiatrist over the appellant's physiatrist, concluding the appellant did not suffer a substantial inability to perform his pre-accident employment tasks.

The Divisional Court dismissed the appeal, finding that the adjudicator applied the correct legal test and that weighing conflicting medical evidence does not constitute an error of law.

The appellant insurer appealed an arbitrator's decision dismissing its pre-hearing motion for documentary disclosure in an indemnity dispute.

The dispute arose after a pedestrian was struck by a car insured by the appellant and claimed statutory accident benefits from the respondent insurer under his father's motorcycle policy.

The appellant sought disclosure regarding how the claim came to be adjusted under the motorcycle policy rather than the stepmother's auto policy.

The Divisional Court allowed the appeal in part, finding the arbitrator's decision unreasonable because he conflated the statutory schemes for priority and indemnity disputes and improperly decided the issue of the claimant's choice of insurer based on an incomplete evidentiary record.

The court ordered the respondent to produce documents related to the claimant's choice of policy.