IMPORTANT CASES

Motion Endorsement for complex motion/cross-motion regarding the test for further examination for discovery, and the binding nature of appraisals under s. 128 of the Insurance Act. Contains valuable judicial commentary about the manner in which counsel comport themselves during examinations.

Important decision confirming that adjusters and their lawyers can share information between claims to investigate suspected fraud and that counsel can act for both a priority dispute and LAT proceeding flowing from the same accident.

Important priority dispute decision dealing with allegations that the insurer of a rental vehicle had an insufficient claims handling program in place to ensure that the Applicant's claim for accident benefits was not deflected to another insurer which did not insure the loss, but which had offered Accident Death and Dismemberment coverage at the rental location.

In this landmark case, the Court of Appeal confirms that for losses prior to June 3, 2019, the attendant care benefit limits are inclusive of HST.

An interesting LAT decision which further develops the "aberrant use" doctrine at the LAT. The Vice-Chair declined to find that the contemporaneous clinical notes indicating the Applicant was suicidal pre-accident and the treating psychological counsellor's post-incident clinical note that this incident was a suicide attempt resulted in a conclusion that the Applicant was using the vehicle for the aberrant purpose of trying to kill himself.

Superior Court Appeal confirming the OAP 1 extends accident benefits coverage to a rental vehicle as a "temporary substitute automobile" so long as the described vehicle is not operational.

Precedent setting Divisional Court appeal decision confirming that for accidents prior to June 3, 2019, HST is payable as an incurred attendant care expense within the policy limits. In the initial LAT Hearing, the Adjudicator decided that HST is not a “reasonable and necessary” expense and therefore was not subject to the $6,000 limit in s.19(3) of the Schedule or the policy limit of $1,000,000. He concluded that the insurer has to pay it as a tax, which the Adjudicator found was distinct from an expense. The Divisional Court concluded: "The problem with this reasoning is that the tax legislation does not impose an independent obligation on the insurer to pay HST and s. 14 of the Schedule only requires the insurer to compensate the insured for attendant care benefits as they are defined under s. 19: “reasonable and necessary expenses.” Therefore, if the HST is not a “reasonable and necessary expense” under the Schedule, the Schedule does not obligate the insurer to pay it."

An important decision regarding the LAT's common-law duty to safeguard the identity of a whistleblower and to avoid a chilling effect that may impact other informants from providing assistance in cases involving alleged insurance fraud.

Important LAT decision following the ONCA Stranges decision to find that "technical entitlement" does not exist under the SABS. Rather, the insured must prove that they meet the substantive test for entitlement during a period of the insurer's "technical" non-compliance with a procedural pay pending provision. Reconsideration filed by the Applicant.

The Court of Appeal concluded it was reasonable for the summary judgement motion judge to find that the use of a parked motor vehicle in a drivethru directly caused impairments from a scalding hot cup of coffee.

In Intact Insurance Company of Canada v. Lombard General Insurance Company of Canada, 2015 ONCA 764, the Court of Appeal recently confirmed that the equitable doctrine of laches does not apply to loss transfer claims. This means that there is no legislated limitation period for loss transfer indemnification claims made after January 1, 2004 (yes, 2004). As result of this decision, the legislature may take steps to amend O. Reg. 668 to include a limitation period for the service of a Notice of Loss Transfer and perhaps a two year limitation period to serve a Loss Transfer Request for Indemnification from the date that the underlying accident benefits claim exceeds the $2,000 deductible. In the meantime, insurers will initiate and respond to further "stale dated" claims for loss transfer.

With a unanimous 3-0 decision, the Court of Appeal confirms that heavy commercial vehicle insurers only pay loss transfer to insurers of vehicles with which they actually collide under Rules 9 and 11 of the Fault Determination Rules.

The now infamous December 5, 2014 Williams and State Farm Preliminary Issue Motion Decision found that s. 36(4) prohibits a s. 33 examination under oath for specified benefits if it is not requested within 10 days of the insurer's receipt of the OCF-1 and the OCF-3. The Appeal Decision(FSCO Appeal P15-00001)confirms that an EUO is permitted at any time to address past, present or future benefits.

A landmark decision dealing with a delayed retroactive claim for Attendant Care Benefits and a precedent setting award of interest and a Special Award.

A unique precedent and successful Loss Transfer Appeal confirming that an insurer who fails to properly transfer priority for an accident benefits claim cannot claim loss transfer.

Juriansz J.A.'s insightful dissent confirming that a motor vehicle liability insurer in Ontario is obligated to respond to a claim for accident benefits and then initiate a priority dispute was affirmed by the Supreme Court of Canada on April 21, 2015 in Zurich Insurance Co. v. Chubb Insurance Co. of Canada, 2015 SCC 19 (CanLII).

FSCO decision confirming the onus is on the insured person to prove that their impairments are not predominantly minor in nature in order to be entitled to medical and rehabilitation benefits outside of the MIG and the hard cap of $3,500.