Pamela A. Brownlee

The respondent insurer sought a preliminary determination that the applicant was barred from proceeding with his Licence Appeal Tribunal application because he failed to attend catastrophic impairment examinations.

The applicant argued he was not required to attend because the insurer failed to provide adequate medical and other reasons for its decision and for the examinations, as required by sections 45(3)(b) and 44(5)(a) of the Statutory Accident Benefits Schedule.

The adjudicator found that the insurer's notices, which merely stated its decision was based on medical documentation and that it needed to verify the applicant's impairment rating, lacked sufficient explanation of its reasoning.

Consequently, the insurer failed to meet the statutory notice requirements, and the applicant was not precluded from proceeding with his application.

The applicant requested reconsideration of a Case Conference Order that directed a preliminary issue hearing in writing and denied production of a contract between the insurer and a third-party assessment company.

The applicant argued the contract was unlawful because the assessment company was not a regulated health professional.

The Associate Chair denied the reconsideration, finding that section 44 of the SABS does not prohibit insurers from using third-party service providers to arrange assessments, provided the actual assessor is a regulated health professional.

The Associate Chair also upheld the decision to proceed with a written hearing.

The applicant sought statutory accident benefits for dental treatment plans totaling $4,310.00 following a motor vehicle accident.

The insurer denied the plans, arguing the applicant's temporomandibular joint (TMJ) issues were not caused by the accident.

The Licence Appeal Tribunal reviewed the medical evidence and found that the applicant had a pre-existing history of nocturnal teeth clenching and TMJ symptoms that were substantially similar to her post-accident complaints.

Applying the 'but for' test for causation, the Tribunal concluded the applicant failed to establish that her TMJ impairments were sustained as a result of the accident.

The application for medical benefits was dismissed.

The applicant sought a determination of catastrophic impairment after settling their claim for specific statutory accident benefits.

The respondent insurer brought a preliminary issue arguing the Licence Appeal Tribunal lacked jurisdiction to make a stand-alone catastrophic impairment determination without an underlying dispute over specific benefits.

The Tribunal held that it has jurisdiction to determine catastrophic impairment on a stand-alone basis, as such a determination directly affects entitlement to enhanced benefits and is not merely declaratory relief.

The respondent's request was denied, and the applicant's appeal was permitted to proceed.

The applicant's request for costs and an award was denied.

The applicant was injured in a motorcycle accident and sought a medical benefit for physiotherapy services under the Statutory Accident Benefits Schedule.

The respondent insurer denied the treatment plan, arguing that the applicant had improved and could perform exercises independently.

The Tribunal found that the treatment plan's goals of pain reduction and improved function were reasonable and necessary given the applicant's injuries, which included post-concussion syndrome.

The Tribunal ordered the respondent to pay the $3,003.85 treatment plan and interest on any incurred expenses.

The Applicant was injured in a motor vehicle accident and subsequently entered into a settlement agreement for statutory accident benefits.

Years later, his litigation guardian challenged the settlement, arguing either that the Applicant's father forged his signature or that the Applicant lacked capacity to contract.

The Arbitrator found that the Applicant likely signed the documents himself.

However, relying on extensive medical records showing the Applicant was involuntarily hospitalized for psychosis hours after signing, and an uncontradicted capacity assessment, the Arbitrator concluded the Applicant lacked capacity to contract both when signing and during the statutory cooling-off period.

The settlement was therefore declared not binding.

The applicant, a 72-year-old retiree, sought non-earner benefits following a motor vehicle accident.

The insurer denied the claim based on insurer's examinations.

The Tribunal applied the Heath test to compare the applicant's pre- and post-accident activities.

The Tribunal found that while the applicant experienced some pain and psychological distress, she failed to prove a complete inability to carry on a normal life, as she continued to participate in her pre-accident activities.

The application for non-earner benefits was dismissed.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits.

She had a rare, pre-existing brainstem cavernoma that was symptomatic prior to the accident.

The insurer argued the post-accident deterioration was the natural progression of her condition.

The arbitrator found that the applicant did not suffer pre-accident loss of consciousness and accepted the applicant's expert evidence that the torsional force of the collision likely caused increased bleeding in the cavernoma.

The arbitrator concluded that the accident materially contributed to the impairment, tipping the balance from a mild impairment to a life-threatening condition.

The appellant was injured in a motor vehicle accident and sought housekeeping benefits under the Statutory Accident Benefits Schedule.

The insurer denied the claim based on an occupational therapy assessment, and the appellant sought mediation more than two years later.

The Arbitrator found that the appellant had advanced a claim for housekeeping benefits which was validly denied, triggering the two-year limitation period.

On appeal, the Director's Delegate upheld the Arbitrator's decision, finding that the submission of an OCF-12 and Disability Certificate constituted a claim, and the insurer's denial was clear and unequivocal.

The appeal was dismissed.

The Insurer raised a preliminary issue that the Applicant was statute-barred from claiming housekeeping and home maintenance benefits, while the Applicant brought a motion for interim income replacement benefits.

The Arbitrator found that the Insurer's refusal to pay housekeeping benefits was clear and unequivocal, triggering the two-year limitation period under s. 281.1(1) of the Insurance Act, which the Applicant missed.

On the motion for interim benefits, the Arbitrator held that despite the Insurer's breach of s. 37 of the SABS in terminating income replacement benefits, interim benefits are a discretionary remedy.

Given the Applicant's unexplained five-year delay in challenging the termination and lack of evidence of urgent financial need, the motion for interim benefits was dismissed.

The Applicant applied for statutory accident benefits following a motor vehicle accident.

After failing to attend a scheduled pre-hearing discussion and a subsequent resumption of the pre-hearing, the Arbitrator dismissed the Application for Arbitration.

The dismissal was ordered under Rule 68 of the Dispute Resolution Practice Code on the basis that the proceeding was frivolous, vexatious, or commenced in bad faith due to the Applicant's non-attendance.

The applicant sought expenses following a successful appeal on a preliminary limitations issue in a statutory accident benefits dispute.

The insurer requested a delay of the expense determination pending its application for judicial review to the Divisional Court.

The arbitrator declined to delay the expense hearing, noting that under the Insurance Act, an application for judicial review does not automatically stay the decision.

Finding that the applicant was successful and her claimed expenses were reasonable and proportional, the arbitrator awarded the applicant $4,858.95 in fixed expenses.

The appellant was successful on an appeal that rescinded an arbitrator's dismissal of her application for arbitration.

The appellant sought her legal expenses for the appeal.

The respondent requested that the expense decision be held down pending a motion to the Divisional Court for a stay of the appeal order.

The Director's Delegate declined to hold down the decision, finding it more efficient for all orders to be before the Divisional Court.

The Delegate awarded the appellant her appeal expenses, fixed at $3,487.44, noting her success on the appeal and the novelty of the issues raised.

Appeal from a private arbitration award concerning a priority dispute between insurers under the Statutory Accident Benefits Schedule following a pedestrian motor vehicle accident involving a minor.

The arbitrator found the injured claimant was not principally dependent for care on the insureds with whom he resided and therefore not a dependent within the meaning of s. 2(6) of the Schedule.

The appellant insurer argued the arbitrator erred in assessing dependency for care and applied the wrong analytical framework.

The court held that the issue involved mixed fact and law attracting a reasonableness standard of review and that the arbitrator’s findings were reasonable.

The claimant’s circumstances showed he largely managed his own needs and finances while paying room and board.

The arbitration award was upheld.

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

The insurer terminated housekeeping and income replacement benefits.

The arbitrator held that the appellant was precluded from proceeding to arbitration due to the expiration of the limitation period.

On appeal, the Director's Delegate found that the arbitrator erred in law by failing to give reasons for the housekeeping limitation order.

Furthermore, the Delegate held that the insurer could not rely on the limitation period for the income replacement benefits because it failed to comply with the mandatory statutory termination process, specifically by not providing the required medical examination reports to the appellant and her health practitioner.

The arbitrator's decision was rescinded, and the issues were returned to arbitration.

The insurer brought a motion to stay the arbitration pending the insured's attendance at further catastrophic impairment assessments.

The insured had initially claimed catastrophic impairment under Criterion 8 (mental or behavioural disorder), but later obtained reports indicating she also met Criterion 7 (55% whole person impairment).

The insurer sought to have her assessed under Criterion 7.

The arbitrator applied the six-part test for determining whether an insurer's request for an examination is reasonable and necessary.

Finding that the insurer would be prejudiced if not permitted to investigate the new claim, the arbitrator granted the motion and adjourned the hearing pending the insured's attendance at the requested assessments.

The applicant sought arbitration for statutory accident benefits following a 2005 motor vehicle accident.

The insurer argued the application was statute-barred as it was filed more than two years after the refusal to pay benefits.

The applicant contended the refusal was invalid because the insurer failed to offer a Designated Assessment Centre (DAC) examination, a requirement that was abolished during the transition period.

The arbitrator found the insurer was not required to offer a DAC assessment because the negative reports triggering the refusal were received after the DAC system was abolished.

The termination notice was valid, and the application for arbitration was dismissed as statute-barred.

The Applicants claimed statutory accident benefits following an alleged motor vehicle accident.

The Insurer denied the claims on the basis that the Applicants were not involved in the accident.

At the preliminary issue hearing, the Applicants failed to appear or provide evidence.

The Arbitrator accepted the Insurer's evidence, including an examination under oath of the driver, which confirmed the Applicants were not passengers in the vehicle.

The claims were dismissed, and the Applicants were ordered to pay the Insurer's arbitration expenses.

The Respondent slipped and fell on ice at a pedestrian access point after parking and disembarking from her vehicle.

The Arbitrator initially found this constituted an 'accident' under the Statutory Accident Benefits Schedule.

On appeal, the Director's Delegate rescinded the decision, finding that while the vehicle led the Respondent to the location, the injuries were sustained from a new and independent source (snow and ice).

The use or operation of the vehicle was not the direct cause of the injuries.

Two first party insurers paid statutory accident benefits to their insureds and made requests for loss transfer from second party insurers.

The second party insurers refused to pay, and the first party insurers initiated arbitration proceedings.

The second party insurers argued the claims were barred by the Limitations Act, 2002.

The Court of Appeal held that the two-year limitation period for loss transfer claims begins to run the day after the first party insurer makes a demand for loss transfer, not from the date the second party insurer definitively refuses to indemnify.

The appeals by the first party insurers were dismissed.