Statutory Accident Benefits Schedule matters (SABS) - SCJ

The appellant insurer appealed an arbitrator's decision in a priority dispute regarding statutory accident benefits.

The arbitrator had found that the appellant was the priority insurer for a claimant who was catastrophically injured while loading an inoperable truck onto a trailer.

The appellant argued the truck was not an automobile and the incident was not an automobile accident, and that the arbitrator's decision was an abuse of process because it conflicted with a prior License Appeal Tribunal decision.

The Superior Court dismissed the appeal, holding that the arbitrator correctly applied the purpose and direct cause tests to find the incident was an automobile accident, and that there was no abuse of process as the arbitrator had exclusive jurisdiction over the priority dispute.

The applicant, a minor acting through his litigation guardian, brought an application to approve a settlement of statutory accident benefits claims with the respondent insurer.

The court found the application materials deficient, noting that Rule 7.08 requires an affidavit from a lawyer, whereas the filed affidavit was sworn by a paralegal.

The court adjourned the application, directing the applicant to file compliant materials, including a lawyer's affidavit, the proposed minutes of settlement, and further evidence regarding the minor's injuries, ongoing impairments, and the fairness of the settlement.

Following the settlement of a motor vehicle accident tort claim, the plaintiffs brought a motion for costs and an increase in the pre-judgment interest rate.

The court assessed the costs of the civil action, reducing the amount claimed to account for expenses incurred due to a trial adjournment requested by the plaintiffs.

The court also considered whether the tort defendant should contribute to the costs the plaintiffs incurred in parallel statutory accident benefits (SABs) proceedings, ultimately ordering a $20,000 contribution because the SABs settlements significantly reduced the defendant's tort exposure.

The plaintiffs' request to increase the pre-judgment interest rate to offset statutory deductible increases was dismissed.

The appellants, Trafalgar Insurance and Economical Insurance, appealed an arbitrator's decision in a priority dispute regarding statutory accident benefits.

The arbitrator had found that Arch Insurance was not the insurer of the vehicle involved in the accident because the vehicle was not owned or leased by Arch's named insured, despite being mistakenly listed on a fleet schedule.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error or error of law in the arbitrator's conclusion that the vehicle did not qualify as a 'described vehicle' under the OPCF 21A endorsement.

A related costs appeal was also dismissed as premature.

The plaintiff, a party under disability who suffered a traumatic brain injury after being struck by a car as a pedestrian, sought court approval of a proposed settlement in his tort and accident benefits claims.

The court reviewed the proposed contingency fee agreement and found it was not reasonable, reducing the fees to 25% for the tort action and 15% for the accident benefits claim.

The court also declined to order the settlement funds be paid as a lump sum, directing counsel to obtain structure options to protect the vulnerable plaintiff.

The plaintiff, a person under disability following a motor vehicle accident, applied for approval of a combined tort and accident benefits settlement of $1,525,000.

The court reviewed the proposed legal fees and disbursements under a contingency agreement, approving the fees but reducing the payable disbursements to only those recovered from the insurer, as per the agreement's terms.

The court declined to approve the proposed structured settlement, ordering plaintiff's counsel to file a case manager report demonstrating how the structure would meet the plaintiff's future needs.

The appellant Minister appealed an arbitrator's decision holding the Motor Vehicle Accident Claims Fund liable to pay statutory accident benefits to a passenger injured in a snowmobile accident.

The passenger was riding on an uninsured snowmobile that crashed into a tree, followed 0.6 seconds later by an insured snowmobile crashing into the same tree.

The arbitrator found the insured snowmobile was not 'involved in the incident' because it did not cause or contribute to the injuries.

The Superior Court allowed the appeal, holding that the arbitrator erred in law by engrafting a causation requirement onto the plain meaning of 'involved in the incident' under s. 268(2)(1)(iii) of the Insurance Act.

The applicant insurer appealed an arbitration award determining priority for Statutory Accident Benefits following a motor vehicle accident involving a catastrophically injured child.

The child's parents were separated, and the insurers disputed whether the child was principally dependent on her mother or father at the time of the accident.

The arbitrator found the child was principally dependent on her mother, utilizing a 12-month time frame for the dependency analysis rather than the 5.5-week period immediately preceding the accident when the child briefly resided with her father.

The Superior Court of Justice dismissed the appeal, finding no extricable error of law or palpable and overriding error in the arbitrator's determination of the appropriate time frame or assessment of care dependency.

The plaintiffs brought a motion to remove the defendant MVAC's counsel of record from the tort claim.

The counsel was acting for MVAC in both the accident benefits claim and the tort claim.

After initially accepting the plaintiff's catastrophic impairment designation, the counsel abruptly reversed the decision hours later without explanation.

The court found that a reasonably informed onlooker would perceive a possibility of conflict and misuse of information, warranting the disqualification of counsel to maintain the integrity of the administration of justice.

Allstate appealed an insurance arbitrator's decision holding it responsible for paying statutory accident benefits to a claimant.

The arbitrator found that Allstate failed to notify Wawanesa of a priority dispute within 90 days of receiving a completed application, and failed to satisfy the test for late notice.

Allstate argued the 90-day period had not commenced because the application was signed by the claimant's aunt, not the claimant.

The Superior Court of Justice dismissed the appeal, holding that the arbitrator correctly interpreted 'signed application' to include signatures by non-claimants, and reasonably concluded that Allstate had sufficient information to commence its priority investigation but failed to act diligently.

The Public Guardian and Trustee, acting as litigation guardian for the plaintiff, brought a Rule 7 motion to approve a $1,180,000 settlement of the plaintiff's statutory accident benefits claims.

The plaintiff, who had been found to be a party under a disability, objected to the settlement and the involvement of the litigation guardian.

The court found the settlement to be eminently reasonable and in the plaintiff's best interests, noting her severe psychological decline and failure to comply with treatment.

The settlement was approved, with the bulk of the funds placed in a structured annuity.

In an action regarding entitlement to catastrophic impairment benefits, the defendant insurer sought an order permitting its counsel to communicate with three of the plaintiff's former treating occupational therapists prior to calling them as witnesses at trial.

The insurer had retained two of the therapists to conduct section 42 assessments.

The court granted leave to bring the late motion but dismissed it on the merits.

The court held that the therapists owed a duty of confidentiality to the plaintiff arising from their therapeutic relationship, which was not waived by the plaintiff's participation in the section 42 assessments or by the limited consent forms he had signed.

Following a trial where the plaintiffs were awarded damages for a motor vehicle accident, the defendant brought a motion for a conditional assignment order of the plaintiff's Statutory Accident Benefits (SABS).

The parties disagreed on the effective date of the assignment.

The court held that the effective date of the assignment is the date of the reasons for judgment, but the assignment is conditional upon and triggered by the payment of the judgment in full.

The appellant, an out-of-province insurer, appealed an arbitrator's decision finding that the priority provisions in s. 268 of the Insurance Act applied to it for a motor vehicle accident that occurred in Ontario.

The appellant argued that applying the Ontario legislation would have an extra-jurisdictional effect.

The Superior Court of Justice dismissed the appeal, applying the reasonableness standard of review.

The court held that because the accident occurred in Ontario and the appellant had signed a Power of Attorney and Undertaking (PAU), it was bound by the priority provisions of the Insurance Act.

The applicant sought a declaration that he had submitted to an examination under oath under s. 33(2) of the Statutory Accident Benefits Schedule after attending the examiner's office and leaving after 30 minutes because the insurer's counsel was late due to a scheduling error.

The court dismissed the application, finding that the applicant thwarted the process without a legal basis and that his counsel engaged in sharp practice by taking advantage of opposing counsel's mistake without fair warning.

The plaintiff sought a declaration that she suffered a catastrophic impairment following a 2013 motor vehicle accident, entitling her to enhanced statutory accident benefits.

The defendant insurer argued her impairment stemmed from pre-existing mental health and addiction issues.

The court applied the 'but for' test for causation, finding that despite her pre-existing vulnerabilities, the accident triggered a conversion disorder that catastrophically impaired her functioning.

The court also held that the plaintiff was entitled to attendant care benefits even if she had not actually paid for them out of pocket, as requiring an insured to finance their own care would defeat the remedial purpose of the legislation.

The plaintiff, catastrophically injured in a motor vehicle accident, sought statutory accident benefits in the form of retrospective attendant care benefits for a period between 2001 and 2006.

The motion asked the court to determine the date from which interest should accrue if those benefits were ultimately found to be payable.

The insurer argued interest could only begin after it received a Form 1 assessment of attendant care needs, relying on appellate authority interpreting the Statutory Accident Benefits Schedule.

The court held that under the applicable 2001 version of the Schedule, interest begins when the insurer had sufficient information to assess entitlement to the benefit, even absent a formal Form 1.

On the facts, the insurer had early knowledge of the claimant’s catastrophic impairments and attendant care needs.

The moving party sought court approval of a proposed $650,000 accident benefits settlement arising from a motor vehicle accident that caused catastrophic brain injury to the plaintiff as a child.

The court reviewed the medical evidence, future care needs, and the proposed allocation of settlement funds, including structured settlement arrangements and funds to be managed by the plaintiff’s mother.

The judge identified significant concerns regarding the adequacy of the settlement relative to future care needs, missing medical and economic reports, unclear accounting for certain funds, and the proposed guardianship and care arrangements.

The court concluded that the evidentiary record was insufficient to determine whether the settlement was in the plaintiff’s best interests.

The proposed settlement was therefore not approved and the matter was ordered to return with further evidence.

Following a jury award in a personal injury action, the parties sought clarification of the terms of judgment concerning deductions for statutory accident benefits relating to housekeeping expenses and disclosure of litigation insurance.

The defendant argued that housekeeping benefits previously received under the Statutory Accident Benefits Schedule should be deducted from both past and future housekeeping awards.

The plaintiffs submitted that benefits for past housekeeping could only be deducted from the jury’s award for past housekeeping losses and not from future losses.

The court accepted the plaintiffs’ position, holding that past benefits cannot be deducted from future losses, and confirmed the higher judgment amount.

The defendant’s request for disclosure of litigation insurance was found to be premature and unnecessary at that stage.

Following a civil jury verdict arising from a motor vehicle accident, the court was asked to settle the terms of judgment including deductions for statutory accident benefits, the applicable statutory deductible under the Insurance Act, and the appropriate prejudgment interest rate.

The defendant sought to deduct the full amount allocated to income replacement benefits in a prior accident benefits settlement, while the plaintiffs argued only amounts clearly matching the jury award should be deducted.

The court held the settlement allocation for income replacement benefits was binding and deductible.

However, it accepted the plaintiffs’ position that the increased statutory deductible introduced shortly before trial should not apply retrospectively, maintaining the earlier deductible amount.

Exercising discretion under the Courts of Justice Act, the court also set prejudgment interest at 3%.