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.

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.

This important decision from the Court of Appeal confirms that the optional benefits insurer is the priority insurer.

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.

Court of Appeal granted leave to appeal in the priority dispute optional benefits case of Chubb v. Continental, 2019 ONSC 3773 (CanLII).

The "optional benefits" case later reversed by the Court of Appeal. At arbitration, Chubb was successful on issues regarding regular use, deflection and the effect of the optional benefits endorsement, all of which resulted in a finding that Continental was the priority insurer. Continental appealed on the issue of regular use, only. On appeal, Justice Stinson ruled that the liability to pay optional benefits should be bifurcated, even though that was not an issue before the arbitrator or on appeal.

Successful third party motion for production of an ODSP file despite the lack of any LAT Rule permitting production orders against a third party. The LAT Application was then withdrawn based upon the contents of the produced ODSP file.

Important FSCO Appeal confirming that chronic pain falls within the MIG unless the claimant can prove that it is not related sequelae to predominantly minor soft tissue injuries.

Important loss transfer decision confirming a non-Ontario Insurer that is a signatory to the PAU is not obligated to pay loss transfer as a result of an accident outside Ontario.

The Applicant was ordered to pay the Insurer $101,205.11 in costs following a complicated 13 day Arbitration Hearing where all claims were dismissed.

Fascinating priority dispute involving deflection, optional benefits coverage, regular use and an O. Reg. 283/95 special award. Arbitrator Bialkowski found the claimant was a listed driver as well as a deemed named insured and that CNA deflected the claim by not advising of the optional benefits coverage under the policy. The decision provides a roadmap for tackling challenging priority disputes featuring OPCF-47 issues, passive deflection of an OCF-1, and adding the insured as a party to the dispute.

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.

An important priority arbitration decision confirming adult children in full time post secondary eduation are usually dependent upon their parents absent unusual circumstances where they earn enough income or have the financial means to cover at least 50% of their cost of living. This decision follows the existing caselaw setting out that loans and lines of credit for school are not considered income in the hands of the student, but rather debts, and are therefore neutral in the dependency analysis (to the extent that the loan or line of credit is used for school expenses).

Important priority dispute decision dealing with the impact of a reinsurance agreement, whether a cab driver was a listed driver on the fleet policy, and an offer by the broker of optional benefits coverage to drivers. Arbitrator Bialkowski confirmed that a list of drivers maintained by the named insured or the broker for risk management purposes does not make those drivers 'listed drivers' within the policy.

Is a repetitive use injury an "accident" under the SABS? Is there an "incident" for regular use to apply or for a s. 268 priority tie-breaker? These issues are presently under appeal to the Superior Court from this priority arbitration decision.

Arbitration dismissed as attendant care services provided by family members were not "incurred". An insurer is entitled to re-assess the incurred threshold monthly. The failure to submit monthly details of services and to respond to the Insurer's requests for proof of incurred, meant the Applicant did not meet the onus of proof.

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.

Precedent setting Court of Appeal decision confirming proper interpretation of Rule 9 of the Fault Determination Rules.

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.

Arbitrator Novick confirmed that a 60 year old visitor to Canada was principally dependent for finances upon her daughter, the spouse of TD's named insured.

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.