Zwan Desai

The court dismissed the defendants’ motion to strike or dismiss the plaintiff’s claim to set aside a settlement of statutory accident benefits on the basis of unconscionability.

The court found that its jurisdiction was not ousted by section 280 of the Insurance Act, as the claim was not about entitlement to benefits but about the unconscionability of the settlement itself.

The court also held that the issue of repayment of settlement funds should not be determined on a motion to strike, and that the plaintiff’s pleadings disclosed a reasonable cause of action.

The claim was not scandalous, frivolous, vexatious, or an abuse of process.

Costs were awarded to the plaintiff.

The applicant sought a loss of earning capacity benefit (LECB) offer from the respondent following a 1994 motor vehicle accident.

The respondent argued the claim was barred under s. 20.1 of the Statutory Accident Benefits Schedule because the applicant had not commenced a mediation, arbitration, or court proceeding prior to March 1, 2006.

The applicant contended that s. 20.1 did not apply because the respondent never issued a proper written denial of her income replacement benefits.

The Tribunal held that regardless of whether a proper denial was issued, the failure to commence a proceeding before the March 1, 2006 deadline meant the applicant was not entitled to an LECB offer.

The preliminary issue was resolved in favour of the respondent.

The applicant sought statutory accident benefits following an incident where a driver struck her with his vehicle door and subsequently exited the vehicle to punch her in the face.

The respondent accepted that the first phase involving the vehicle door constituted an 'accident' under s. 3(1) of the Statutory Accident Benefits Schedule, but denied benefits for the psychological impairments resulting from the subsequent assault.

The Tribunal found that the incident was severable into two distinct phases.

Applying the Purpose and Causation tests, the Tribunal held that the assault was an intervening act that broke the chain of causation and did not arise out of the ordinary and well-known activities for which automobiles are used.

The applicant's claim for benefits related to the assault was dismissed.

The applicant, who sustained a catastrophic impairment in a motor vehicle accident, sought attendant care benefits for services allegedly provided by his wife.

The insurer denied the claim on the basis that the wife did not meet the requirements for a provider under the Schedule and did not incur an economic loss.

The Licence Appeal Tribunal found that the applicant failed to prove on a balance of probabilities that the attendant care services were provided by his wife over and above the professional care already received.

Furthermore, the applicant did not prove that his wife sustained an economic loss as a result of providing the care.

The claims for attendant care benefits, interest, and a special award were dismissed.

The Applicant sought a determination that he suffered a catastrophic impairment following a motor vehicle accident.

In a previous decision, the arbitrator found the Applicant's Whole Person Impairment (WPI) was 50%, falling short of the 55% threshold.

On appeal, the Director's Delegate remitted the matter back to arbitration to determine the impairment rating under Chapter 4, Table 3 of the AMA Guides and to assign a rating for medication use.

Upon reassessment, the arbitrator assigned a 15% WPI for the nervous system impairment (after applying a 2% discount for double counting) and a 2% WPI for medication use.

Combining these with the previously confirmed ratings resulted in a 54% WPI, which rounds to 55%.

Consequently, the arbitrator concluded the Applicant sustained a catastrophic impairment.

The applicant sought payment for various medical benefits, an in-home assessment, and a chronic pain assessment following a motor vehicle accident.

The Licence Appeal Tribunal dismissed all claims.

The claims for pharmacotherapy and physiotherapy were denied because the expenses were not incurred, the applicant failed to disclose potential collateral benefits, and the treatments were not proven to be reasonable and necessary.

The claim for the in-home assessment was barred by the two-year limitation period.

The remaining dispute over the chronic pain assessment related to transportation costs, which the applicant failed to prove were authorized expenses.

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 insurer brought a preliminary motion to introduce new evidence consisting of documents from the applicant's family law proceeding, which were served outside the 30-day time limit under Rule 39.1 of the Dispute Resolution Practice Code.

The arbitrator found that the unexpected receipt of the documents from the applicant's sister constituted extraordinary circumstances under Rule 39.2, and admitted the evidence as it was highly relevant to the applicant's claimed disability.

The applicant's request for an adjournment to review and respond to the new evidence was granted on consent.

The applicant sought expenses following an arbitration decision regarding statutory accident benefits.

The arbitrator found that the applicant was generally successful, having obtained an award for housekeeping benefits and successfully defeated the insurer's position on non-earner benefits.

The insurer's argument that the applicant's late withdrawal of the attendant care claim should disentitle him to expenses was rejected, as the insurer failed to demonstrate significant costs thrown away.

The applicant was awarded expenses in the amount of $18,832.68.