Terrence R. Shillington

The applicants were involved in a motor vehicle accident which resulted in the death of their unborn child.

They applied for death benefits under the Statutory Accident Benefits Schedule.

The insurer denied the claim on the basis that an unborn child does not qualify as a dependant.

The arbitrator held that the law does not recognize an unborn fetus as a person, and therefore the unborn child was not an 'insured person' under the Schedule.

The application for death benefits was dismissed.

The appellant insurer argued on appeal that a 1989 letter did not create a binding agreement and, alternatively, that the respondent's claim was out of time after the insurer indicated in 1991 it would no longer be bound.

The court held the trial judge properly relied not only on the letter itself but also on the agent's cross-examination evidence acknowledging an agreement.

The court further held that the 1991 letter constituted repudiation, but because the respondent did not accept that repudiation, the contract remained in force and the respondent was not required to commence proceedings by the date asserted by the appellant.

The appeal was dismissed with costs.

The applicant was injured in a motor vehicle accident and received weekly income benefits for 156 weeks.

The insurer terminated benefits, arguing she did not meet the post-156 week disability test under section 12(5)(b) of the Statutory Accident Benefits Schedule.

The arbitrator found that while the applicant was reasonably suited for light assembly work or her pre-accident work as a motor repair technician, she required a graduated work hardening program to build up her working tolerance before returning to full-time employment.

The arbitrator ordered the insurer to pay ongoing weekly income benefits until the completion of the recommended work hardening program.