C. W. v. Jevco Insurance Company, 2019 CanLII 22200

Date: 2019-02-01

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

C. W.

Appellant

and

Jevco Insurance Company

Respondent

DECISION

ADJUDICATOR: Jeffrey Shapiro

APPEARANCES:

For the Applicant: Christopher A. Obagi, Counsel

For the Respondent: Brian Smith and Sean Miller, Counsel

HEARD: By written submissions beginning October 3, 2018 and Oral Submissions (Teleconference) on October 29, 2018

OVERVIEW

1On November 1, 2007, C.W. was crossing a street when struck by a vehicle. The parties agree that she sustained catastrophic injuries including a mild to moderate traumatic brain injury and ligament tears in her knee, and that after initial hospitalization, she has continually needed $6,000 a month in attendant care as she has trouble caring for herself and needs supervision. A CT scan showed a head fracture, and diagnoses include depression and a “significant neurocognitive disorder”.

2Despite her need, due to a series of events discussed below, C.W. did not apply to Jevco for benefits under the Statutory Accident Benefits Schedule (the “Schedule”)¹ until March 3, 2015, or for an attendant care benefit until December 16, 2015. Jevco agreed to pay for the attendant care for periods after the application, but not before.

3C.W. appealed to the Licence Appeal Tribunal (“Tribunal”) for a ruling that she is entitled to the attendant care for the earlier period. Based on the unique circumstances in this case, I find that C.W. is entitled to that attendant care and interest.

ISSUES AND RESULT

4The parties resolved several disputes during this matter which, on consent, I have incorporated into my order below. The parties agree that the remaining issues are:

i. Is C.W. entitled to $6,000 per month for attendant care benefits (“ACB”) from November 1, 2007 (date of the accident) to December 25, 2015?

ii. If C.W. is entitled to ACB in the amount of $6,000 from November 1, 2007 to December 25, 2015, on what date does interest begin to accrue?

5I find that C.W. is entitled to the ACB and retroactive interest from November 9, 2007 (discharge from the hospital after the accident) to December 25, 2015.

BACKGROUND AND POSITIONS OF THE PARTIES

6Before providing the background and the parties’ arguments, a brief overview of relevant insurance law in Ontario is helpful. In general terms, persons injured in a motor vehicle accident in Ontario, such as C.W., are often entitled to at least two types of recovery: (1) no-fault “accident benefits” under the Schedule, and (2) liability damages from an at-fault-driver (commonly referred to as “tort” damages). Other “collateral” sources of recovery may also be available, but those are not relevant to the issues in this matter.

7Accident benefits are a set of statutory benefits designed to be quickly available to all individuals who have been involved in a motor vehicle accident in Ontario, generally without regard to whether the claimant was the driver, passenger or a pedestrian, or to who caused the accident, and typically without regard to residence.

8A pedestrian’s claim for accident benefits is typically made to their own motor vehicle insurer, but if they do not have one, then they may apply to the insurer of the vehicle that struck them, next to any vehicle in the accident, or if none apply, then they apply to Ontario’s Motor Vehicle Accident Claims Fund (“the Fund”).²

9Regarding a tort claim, typically the at-fault driver’s own insurance will defend and indemnify the driver under the third party liability provisions of the driver’s policy.

10In C.W.’s case, however, at the time of the accident, the driver did not tell C.W. that Jevco was his insurer, nor did he notify Jevco of the accident. Thus, following the accident, C.W. was unable to apply for accident benefits, as she did not have her own insurance, she was unaware of Jevco, no other car was involved in the accident, and as she was a Quebec resident, the parties agree, she was not entitled to accident benefits from the Fund³.

11Two years later, in October 2009, C.W. sued the driver for tort damages. The driver then notified Jevco about the accident, and C.W. soon after learned of Jevco. Jevco, however, claimed it did not insure the vehicle involved in the accident as the driver never advised Jevco that he acquired the vehicle, and thus Jevco was not going to defend or indemnify the driver. Jevco maintained that non-coverage position – discussed below – during the tort matter over the next five years. On September 14, 2014, Jevco finally agreed that it was obligated to insure the vehicle that hit her.

12Following that admission, on March 3, 2015, C.W. formally applied to Jevco for accident benefits, and then on December 16, 2015 applied for the Attendant Care Benefits (“ACB”) now in dispute. In broad terms, Jevco agreed to pay expenses incurred after the various applications, but not prior periods. Thus, Jevco paid ACB after C.W.’s December 2015 application, but Jevco disputes prior amounts.

13The Schedule provides for a complicated and document intensive procedural system for claiming and responding to claims for accident benefits. It includes numerous prescribed claims forms that must be completed before the benefits will be payable and strict timelines.

14Jevco submits that C.W.’s claim for ACB from 2007 to 2015 was untimely under the Schedule. Jevco’s main argument is that C.W. could and should have applied for accident benefits once she came to know of Jevco during her tort claim, regardless of whether Jevco was denying tort liability, because different standards apply to how it must handle an accident benefit claim. Jevco further argues that because the tort and accident benefit departments do not share information (due to privacy concerns), Jevco’s accident benefit department was unable to know C.W. existed until she actually applied, and thus it could not have notified C.W of her rights to claim accident benefits.

15C.W. submits her claim is timely. Her main argument is that while she did learn that Jevco was a potential insurer during the tort matter, it is not reasonable to expect her to apply to Jevco for accident benefits, while Jevco was asserting in the tort matter that no relevant policy even existed. C.W. argues she actively pursued her rights by disputing Jevco’s non-coverage position through the tort proceeding. As well, the emotional and financial costs of litigation are expensive, and it is not realistic to expect her to have fought the coverage issue in the tort claim and simultaneously in an accident claim. Rather, once coverage was settled through the tort claim, she promptly applied for benefits.

ANALYSIS

16Section 19 (1) of the Schedule provides that attendant care benefits shall pay for all reasonable and necessary expenses incurred for “the insured person as a result of the accident for services provided by an aide or attendant…” The procedures to claim ACB are found in s. 42, including that an “assessment of attendant care needs” and associated “Form 1” (I will refer to them collectively as “Form 1”) must be used.

17The parties agree that C.W.’s Form 1 established her need to the past and present attendant care, but dispute her entitlement to be reimbursed for the period prior to the Form 1. In other words, they dispute if her claim for that period is timely. Thus, I must first decide if and when the Schedule permits claims for periods prior or “retroactive” to the Form 1, and second if C.W. complied with that requirement.

Under the Schedule, what must C.W. establish to claim retroactive ACBs?

18Jevco asserts that for C.W. to be successful, she must establish either that (1) “urgency, impossibility or impracticality” prevented her from submitting her Form 1 earlier, or (2) that she has a “reasonable excuse” for not doing so earlier. I agree.

19Jevco arrives at that conclusion by reading s. 42(5), case law, and s. 34 together, as follows. S. 42(5) provides “An insurer may, but is not required to, pay an expense incurred before an assessment of attendant needs…is submitted to the insurer.”

20Jevco reads s. 42(5) to mean an insurer is not required to pay ACBs for periods prior to the submission of the Form 1, but agrees two exceptions apply. First, case law such as Kelly v. Guarantee⁴ show there are urgent or other situations where technical compliance with s. 42(5) is impossible, but yet the legislature clearly intended for benefits to be paid. Jevco agrees with this Tribunal’s summation of those exceptions in 16-000372 v. Unica Insurance and cases following it⁵ as where “urgency, impossibility or impracticality” prevents compliance with s. 42(5) payment for retroactive ACBs may be warranted. Second, Jevco notes “However, s. 34 [of the Schedule] acts as a savings provision to claimants, and provides: A person's failure to comply with a time limit set out in this Part does not disentitle the person to a benefit if the person has a reasonable explanation.” [Emphasis added.]” Thus, if her Form 1 is untimely under s. 42(5), C.W. is not disentitled if she has a “reasonable explanation” for the delay.

21In contrast, C.W. reads s. 42(5) as simply establishing that ACBs do not have to be paid until a Form 1 is filed, but that the Form 1 can include prior periods, if supported. Thus, no time cut-off is created. I disagree for several reasons.

22S. 42(5) says “is not required to pay an expense incurred before an assessment…is submitted,’ rather than “incurred until an assessment…is submitted…” In this context and when used with the Schedule’s other benefits, “before” disallows benefits incurred “before” application is made for the benefit. In fact, the overall language and formula used in s. 42(5) is similar to other benefits which clearly create a time-cut off. For instance, regarding medical benefits, s. 38(2) uses the exact formula as s. 42(5): “not [liable/required]…to pay…[the benefit]…incurred before…submits [the plan/Form 1]”.

23The Schedule also consistently requires benefits be applied for in a way that insurers can respond and adjust in real time, and again, the language of s. 42(5) does not read in a way to depart from that concept to create an open-ended claims period for ACBs.⁶

24Given the above, for retroactive periods, I must now determine if it was “impossible” or “impractical” for C.W. to comply with s. 42(5), or alternately, if she has a “reasonable explanation” for not doing so. I will address those together⁷.

Was it impossible or impracticable for C.W. to apply earlier? Alternatively, does she have a “reasonable explanation” for not doing so?

25While the parties argued this matter as if the pre-application period was one continuous time period, the evidence points to two different time periods, and therefore, my analysis follows those periods.

26Regarding the first period - from the time of the accident until roughly two years later, when C.W. learned that Jevco was a potential insurer - I find that it was impossible for C.W. to apply, as C.W. was unaware of any insurer to which she could submit an application for accident benefits or a Form 1 for ACB expenses. Again, as noted above, C.W. did not have the option of submitting a claim to the Fund.

27Regarding the second period, from November 2009 until the Form 1 was filed, I find that although C.W. was aware that Jevco existed and could have started a claim for accident benefits, it was impractical for her to do so under the circumstances created by Jevco’s non-coverage position in the tort claim, or at least, she has a “reasonable explanation” for not doing so, all for the reasons that follow.⁸

28The parties assert many detailed and technical arguments about whether it was impractical for C.W. to apply earlier, or if she had a “reasonable explanation” for not doing so. However, before addressing them, I find that the analysis must focus on C.W’s actions or non-action at the time and in her situation, rather than a retrospective analysis of what C.W. possibly could have done with the hindsight benefit of Jevco’s relatively recent agreement to accept coverage.

29From that perspective, C.W. sustained catastrophic injuries, cognitive difficulties, and needed supervision. She and her family actively pursued her rights including filing a tort claim and used court procedures to identify Jevco and secure a ruling that Jevco insured the vehicle, even while Jevco actively denied any connection and opposed being added to the tort matter for declaratory relief. At no time did Jevco inform her of her rights to accident benefits despite its obligation to do so, which omission is glaring as it now argues she should have applied. When considering filing a claim, she considered the emotional and financial costs of starting a second coverage dispute, while she was litigating those issues in the tort claim. Although I cannot know with certainty that Jevco would have refused to pay accident benefits, under the circumstances and based on a preponderance of the evidence, I find it was impractical for C.W. to submit an earlier Form 1, or at least, C.W.’s choice not to do so qualifies as a “reasonable explanation”.

30First, a review of key events during the tort proceeding supports that conclusion. Jevco was not asserting a limited policy exclusion but rather denied any coverage existed regarding that vehicle or the accident on the basis that the driver never advised Jevco that he acquired it. For example, in a January 24, 2014 filing, Jevco repeatedly stated there is no policy in effect for that vehicle and thus it didn’t insure it. Thus, Jevco’s position inherently meant it disputed any obligation to pay accident benefits. Additionally:

i. Jevco refused to defend or indemnify the driver, and the driver did not challenge that position, thus leaving C.W. to fund the coverage dispute.

ii. In July 2010, Jevco added itself as a statutory third party solely to minimize its liability in case it was later required to indemnify the driver, yet in January 2014, when C.W. moved add Jevco as a defendant for a declaratory ruling on whether Jevco owed coverage, Jevco opposed the motion.

iii. In the Court’s March 14, 2014 order⁹ that added Jevco for a determination of the coverage issue, the Court explained that C.W. is entitled to know if insurance funds are available before expending further legal fees. I find those reasons very important, as discussed below.

iv. C.W. used court discovery and other methods to help establish Jevco’s coverage of the vehicle, such as orders compelling production of the driver’s insurance records and the broker’s file, and attendance at an examination.

v. In September 2011, C.W. asked Jevco to accept coverage under the driver’s existing policy’s 14-day grace period for newly acquired vehicles. Jevco refused – but 3 years later accepted coverage on that basis.

vi. Jevco’s September 14, 2014 admission of coverage of the vehicle was in response to C.W.’s offer to settle.

31Second, Jevco failed to manage its risk, and more importantly, failed to fulfill its duty to inform C.W. of available benefits or send her application forms to apply under s. 32, despite an insurer’s obligation to provide insured parties sufficient information to claim benefits even if they are represented by counsel or never asserted claim for that benefit.¹⁰ Dervisholli and State Farm¹¹ notes that an insurer has two unique relationships – as accident benefit insurer it “owes the plaintiff a duty of good faith arising out of its fiduciary obligations” in contrast to its duty to defend the driver. Yet, while Jevco was failing to fulfill its fiduciary duty to inform her, it was proactively protecting its own rights by adding itself to the tort proceeding, and later by proactively denying ACBs even prior to C.W. applying for that specific benefit. It cannot now fault her for delay.

32Third, Jevco’s accident benefit department should have known of C.W. and her claim. C.W. was not hidden from Jevco and the typical internal “firewall” for an insurer processing a “first party” and “third party claim”¹² should not fully apply here. To the contrary, the firewall is for her benefit, and in any event can be waived. Thus, I do not accept that advising another department of a potential claimant, so that it can investigate for the benefit of C.W., is the same as disregarding the firewall.¹³ Jevco’s position only makes sense if it can use the firewall to her detriment, as a means to not notify her of her rights. When Jevco received a tort claim involving a pedestrian, it should have, at some level of the company, considered that it may be the priority insurer and reached out to her to advise her of the potential accident benefits and considered its own obligation to adjust the claim.

33Fourth, the Superior Court’s March 14, 2014 endorsement that added Jevco for the purpose of a declaratory ruling supports C.W’s position. The Court found “as far as possible, multiplicity of legal proceedings shall be avoided.” It also reasoned it is an “access to justice” issue to require C.W. to fund a “long and complex” trial until she knows if insurance benefits are available to satisfy an award and the legislature recognized the amount of potential benefits plays “a major and even a determinative role in how the litigation is conducted, and through what stages it should be pursued.” The Court quoted the Supreme Court that access to effective and affordable justice is the “greatest challenge” to the rule of law in Canada today, and a fair process “must be accessible, proportionate, timely and affordable.” The “best forum for resolving a dispute…is not always that with the most painstaking procedure.”

34The Superior Court’s reasons support, by analogy, C.W.’s argument that the emotional and financial costs must be considered in why she did not previously start a claim for accident benefits. C.W. was already funding five plus years of litigation, without having established coverage.

35Fifth, Jevco argues that several provisions of Ontario insurance law would have entitled her to immediate accident benefits, despite the existence of the coverage dispute, had she just applied. In C.W.’s unusual circumstances, I disagree.

36First, in most situations where there isn’t an applicable insurance company from which an insured person can receive accident benefits, the person can apply to the Fund. After arguing C.W. could apply, Jevco now concedes C.W. was ineligible.

37Second, Jevco argues that O. Reg. 283/95 Dispute Between Insurers required it to pay for accident benefits had C.W. applied, even while it was disputing coverage of the vehicle. Reg. 283/95 generally prevents insurers from delaying paying accident benefits while they argue which one is responsible by requiring the first insurer that receives an application to provide benefits immediately, while it seeks resolution of which is the correct insurer¹⁴. The Regulation applies to any insurer having a mere “nexus” to the claim – even a policy cancelled days before the accident.¹⁵

38While the existence of a Jevco policy with the driver on other vehicles likely created a “nexus”, I still don’t think Reg. 283/95 would apply. From my reading, Reg. 283/95 only applies when there is a dispute between insurers “as to which insurer is required to pay.”¹⁶Yet, Jevco was the only potential insurer. The scheme’s purpose, words, and title only require the first insurer to pay when it can be reimbursed from the correct insurer. Jevco had no such potential. It defies logic that the scheme intended for Jevco to pay benefits regarding a vehicle it claims it does not insure when it cannot be reimbursed.

39Third, Jevco argues by adding itself to the tort matter as a statutory party under s. 258(14) of the Act it “admitted that a valid policy of automobile insurance was in place, for which it was exposed to the statutory minimum liability limits of $200,000…” Thus, it was only denying liability coverage to the driver, but not accident benefits to C.W.¹⁷

40I disagree. Based on cases cited by the parties, the $200,000 coverage is minimal liability limits to or for the driver for the accident, but not accident benefits. In fact, while Jevco may have admitted a policy existed in its 2010 motion, its 2014 filing argues that the policy did not cover this vehicle and accident. That position is also important because s. 268(2)2 of the Act ties C.W.’s recourse for accident benefits to be “against the insurer of the automobile that struck the non-occupant.” Thus, even if Jevco admitted $200,000 statutory liability for the driver, because Jevco’s claim’s it does not insure the automobile, it appears Jevco did not admit liability to pay accident benefits to C.W.

41Thus, under any of these arguments, it does not appear that C.W. had an automatic entitlement to accident benefits as Jevco submits. More importantly, even if I am incorrect, the thrust of C.W.’s submission is that she reasonably believed that these provisions did not provide automatic entitlement and/or that Jevco would dispute liability for the accident benefits, and she would be expending more legal fees, in two forums. I agree that this was a reasonable explanation for not applying earlier.

42For all the above reasons, I find C.W. is entitled to ACB from November 9, 2007 when she was discharged from the hospital to the time she submitted the Form 1.

From what date does interest accrue?

43I must now decide the date from which interest accrues. As a starting point, s. 51 of the Schedule provides interest is payable when “overdue”, which is when “the insurer fails to pay the benefit within the time required under this Regulation.”

44The parties offered several interest accrual dates, the main ones being the retroactive date, the submission of the Form 1, and the May 18, 2017 application for catastrophic determination that “completes” the Form 1, because the $6,000 ACB level is only available to a catastrophically impaired person. C.W. submits that interest accrues from the retroactive date (i.e. November 9, 2007). I agree.

45My finding that interest accrues retroactively in this matter is based on a contextual and substantive approach which focuses on determining when benefits are “overdue” and not simply when the application was submitted. This is the approach of the Court of Appeal in Van Galder and the Superior Court in Mulhall v Wawanesa. In both of these cases, interest was awarded retroactively. The facts of these cases also involved retroactive Form 1s in catastrophic matters. I find them persuasive.

46For example, in Van Galder, the applicant was paid two years of ACB to the applicable non-CAT limits, ending in 2005. She submitted several CAT applications from 2007 until 2012, until the insured accepted her as CAT in 2013. The insurer then paid retroactive ACB continuous from the non-CAT stoppage date, yet refused to pay retroactive interest, arguing that the benefits were not “due” until the final, valid CAT application was submitted and accepted – much like Jevco’s position.

47The Court, however, ordered interest payable from the retroactive date, for several reasons, including:

i. The Court accepted that the applicant was catastrophically impaired since the accident and thus entitled to benefits from that time, even if she was not deemed CAT until 9 years after the accident.

ii. Her delay was impacted by the insurer’s failure to notify her that she could apply for a CAT determination and receive continuing ACB.

iii. The Court emphasised that interest is “purely compensatory” and specifically rejected the argument the interest under the Schedule was “seriously punitive” or that it “incentivizes” an insured to delay a catastrophic application to accrue interest.

iv. The insurer could have managed its risk and expedited the application process, as this was “not a case of an uncooperative insured person with minor injuries who kept the insurer in the dark.”

v. While the Schedule requires an insured person to apply and provide information, the Court explained “these obligations must be understood in the context of a catastrophic impairment. The nature of many catastrophic impairments may necessarily render a…person incapable of navigating and completing the complicated and detailed application process...”

vi. The insurer’s change in deeming the insured CAT was that the insurer simply gave the insured “the benefit of the doubt at that point. That it chose not to do so earlier was its option. [It] cannot now argue prejudice because of the passage of time.”

48Mulhall involved an applicant that timely notified an insurer of his 2001 accident. In 2006 he applied for and received ACB, but then in 2015 - fourteen years after the accident - submitted a retroactive Form-1, seeking ACB from 2001 until he received ACB in 2006. The Court held that if at the coming trial retroactive ACB were to be found necessary, then interest accrued, regardless of fault, “from the date that the insurer had sufficient information to be able to assess whether the benefit should have been paid regardless of whether…the plaintiff…specifically applied for attendant care.” In Mr. Mulhall’s case that was from the time of accident as the insurer was aware of his condition and was in fact paying other benefits, and “had sufficient information by which it ought to have been able to consider to pay or deny attendant care benefits”. Mulhall also articulated that the retroactive award of the benefit itself typically requires the payment of interest as interest is compensatory.

49In contrast, in Grigoroff v. Wawanesa¹⁸, the Divisional Court held that even if ACBs are paid under a retroactive Form 1, ACB is not “overdue” until 10 days after the Form 1 is received, because s. 42(5) makes a Form 1 a prerequisite for claiming ACB and 42(6) requires payment to be made 10 days later.¹⁹ A recent 2017 FSCO decision²⁰ followed Grigoroff noting it ruled out the “deemed application” approach.

50However, both Mulhall and Van Galder were decided after Grigoroff, and neither followed its reasoning. Mulhall specifically distinguished Grigoroff as not dealing with the consumer protection aspect of the Schedule, or when an insurer has sufficient information to properly adjust the claim under s. 32, and I also note s. 45(6).

51Mulhall and Van Galder which did award interest, did so in situations where the applicant had more opportunity to have applied earlier, than in C.W.’s more difficult situation. Thus, in contrast to Van Galder, it was at times impossible and other times impractical for C.W. to apply.

52Many of the reasons which supported an interest award in Van Galder, also apply here. For instance, C.W. is catastrophically impaired with cognitive difficulties making it more difficult for her to navigate the system, and an award of interest is “purely compensatory”.

53Applying these principles to C.W.’s case, Jevco was aware of C.W.’s potential claim early on, and to the extent its accident benefit department did not know, as I found above, it should have known. I do not accept that Jevco can use its decision to dispute coverage, as a basis to fail to identify and inform C.W. of her accident benefit claim and the ACB to which she may be entitled, and in turn, as a basis to now claim C.W. is not entitled to benefits she ought to have received years ago.

54Finally, I also note that Grigoroff is also distinguishable as it does not address C.W.’s situation where for a period of time she was unaware of the existence of any insurer, and then later had knowledge of an insurer that was denying coverage. As I found above, those factors impacted C.W.’s delay in submitting a Form 1.

55For all the above reasons, I find that interest accrues as of November 9, 2007.

CONCLUSION

56I find that C.W. is entitled to ACBs from her discharge from the hospital, with interest accruing from that date. Neither party sought costs and I find no basis to award any.

ORDER

57For the reasons outlined above, I order that C.W. is entitled to the “retroactive” attendant care benefit from November 9, 2007 to December 25, 2015 (and thereafter as per the parties’ agreement, as below), with interest accruing from November 9, 2007, at the rates under the Schedule.

58Additionally, on the agreement of the parties, I order that C.W. is entitled to:

i. Attendant care benefit in the amount of $6,000 per month from December 26, 2015 (the date of the Form 1) to date and ongoing,

ii. Income replacement benefit of $121.20 per week from September 29, 2018 to date and ongoing, and

iii. Housekeeping benefit of $7 a week from March 10, 2015 (the OCF-1 date) to date and ongoing (based on the amount remaining after “SAAQ” benefits).

Footnotes

1. 1While the benefits are set under the 1996 version of the Schedule, its transitional provisions provide that many procedural provisions from the 2010 Schedule, O. Reg. 34/10, apply. Unless noted, citations are to the 2010 Schedule, and its key provisions herein are substantially unchanged from the 1996 Schedule.
2. 2S. 268(2)2 of the Ontario Insurance Act (“the Act”).
3. 3She did receive benefits from Quebec’s public insurer - The Societe de l’assurance automobile du Quebec.
4. 4Kelly v Guarantee Company of North America, (FSCO A12-006663, August 7, 2014).
5. 52017 CanLII 15835 (ON LAT). See also 16-003306 v Coachman Ins. Co., 2018 CanLII 81882 (ON LAT) and 16-004281 v Aviva Ins. Co., 2018 CanLII 81909 (ON LAT)(The delay deprived Aviva the ability to conduct its own timely assessment and this was wasn’t an emergency or circumstance rendered timely submission of a Form 1 impractical.) affir’d in E.E v Aviva Ins., 2018 CanLII 76415 (ON LAT).
6. 6To accept C.W.’s broad interpretation of Kelly, I must assume Kelly’s words “in every circumstance” mean “in any circumstance”, ignore the discussion that Kelly’s Form 1 was supported, and ignore the extreme facts.
7. 7The parties have not argued s. 45(6).
8. 8For the period after September 2014, the timeline shows minor gaps on each side which I do not find to be significant.
9. 9W. v. P., 2014 ONSC 1606. The decision was referenced during oral submissions.
10. 10See s. 32, Van Galder v. Economical Mutual Ins., 2016 ONCA 804, at para. 95, and 87-102, and Mulhall v The Wawanesa Mut. Ins. Co., 2015 ONSC 7495.
11. 11Dervisholli et al. and Cervenak and State Farm, 2015 ONSC 2286.
12. 12Worthington Trucking Inc. v. Klingbeil (Litigation guardian of), 1999 CanLII 19927 (ON SC), and Dervisholli.
13. 13The parties did not produce internal Jevco documents about if Jevco considered reaching out to C.W. or its own accident benefits department about the claim. The parties agreed that I could rule on the record.
14. 14See Justice Juriansz’s decent in Zurich Ins. v. Chubb Ins., 2014 ONCA 400, at para. 40, adopted by the Supreme Court in Zurich Ins. v. Chubb Ins., [2015] 2 SCR 134, 2015 SCC 19.
15. 15For example, Kingsway Gen. Ins. Co. v. Ontario (Minister of Fin.), 2007 ONCA 62, cited by Zurich.
16. 16O. Reg. 283/95 sec. 1, “All disputes as to which insurer is required to pay…” and sec. 2(1) pay “pending the resolution of any dispute as to which insurer is required to pay benefits under section 268…”
17. 17Reply Submissions of Jevco, para 25, citing Gordon v. Pendleton, 2007 CanLII 39886 (ON SC).
18. 18Grigoroff v Wawanesa Mutual Insurance Company, 2015 ONSC 3585
19. 19S. 42(6) provides that “The insurer shall begin payment of attendant care benefits within 10 business days after receiving the [Form -1 and] assessment of attendant care needs…” (Emphasis added.)
20. 20Mooney and Wawanesa Mut. Ins. Co. (FSCO A13-008593, May 17, 2017)(Arbitrator Huberman), citing Nadesu v. Zurich Ins. Co. (FSCO A09-001538, Jan 22, 2016)(Arbitrator Rogers)