The recent LAT decision of S.G. and Unifund, 16-000879/AABS by Adjudicator Anna Truong should be seen as a win for proper procedure and that the LAT will follow the Heath analysis of non-earner benefits.
The Applicant was pursuing non-earner benefits, a rehabilitation benefit, a special award, and costs. Prior to the written hearing on November 16, 2016, Unifund raised a preliminary issue seeking to exclude the updated clinical notes of the Applicant’s psychologist and an orthopaedic surgeon report that had not previously been disclosed or produced to Unifund until they were included in the Applicant’s Reply on November 3, 2016. The Case Conference Report required the claimant to submit her submissions no later than October 4, 2016 and a Reply no later than October 31, 2016. The applicant initially provided no explanation as to why her submissions were late.
In deciding to exclude the reports, Adjudicator Truong did not accept the applicant’s argument that she only received the two records on November 1, 2016 and that despite the Case Conference Report’s timelines, she was in compliance with Rule 9.3 as they were disclosed more than 10 days before the written hearing. Adjudicator Truong noted that Rule 9.3 contemplates deadlines imposed by any Order of the Tribunal and noted that the Case Conference Report had the weight of an Order. Therefore, parties were required to comply with the deadlines set out in them. Although the Applicant claimed the Case Conference Adjudicator had indicated that documents could be submitted “within a few days” of the deadline, Adjudicator Truong had no evidence on this point and did not accept the argument.
The Adjudicator also reprimanded the Applicant for failing to raise these two documents at either of the two previous Case Conferences. She found that raising these issues at the Case Conference, “would have allowed the case conference adjudicator and the Respondent to adequately deal with these documents. Waiting until the Reply to disclose these documents for the first time amounts to sharp practice and it is against the Rules.”
In turning to the substantive issue of the non-earner benefit, the Adjudicator appropriately identified the Court of Appeal’s decision in Heath v. Economical as outlining the relevant test for the non-earner benefit. In particular she indicated the following analysis should be followed:
There must be a comparison of the Applicant’s Activities and life circumstances before the accident to those post-accident.
The Applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident. The duration is case dependent.
All of the pre-accident activities will be considered but greater weight will be given to the activities of greater importance to the Applicant.
The Applicant must prove that his/her accident related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities. The disability or incapacity must be uninterrupted.
“Engaging in” is a qualitative analysis and requires more than simply going through the motions.
If pain is the primary reason the Applicant cannot engage in activities, the question is whether the pain practically prevents them from performing those activities, rather than physically.
The Adjudicator emphasized that the test requires that the claimant is impaired in substantially all of her pre-accident activities.
The hearing was conducted fully in writing. It does not appear that any affidavit evidence was submitted. The Insurer provided several section 44 reports which indicated the claimant did not suffer a complete inability to carry on a normal life. The Applicant only provided a psychological report, and two disability certificates of the family doctor in support of her claim.
In assessing entitlement, the Adjudicator found that the claimant was a homemaker and mother of four prior to the accident, and continued to be a homemaker and mother of four after the accident. Despite accepting the claimant suffered some impairments, notably a Major Depressive Disorder, the Adjudicator found that the claimant continued to be independent of her personal care, continued to be independent in all housekeeping activities except cleaning the toilet, continued to visit her friends, continued to drive, continued to care for her children, and continued to be able to sit, stand, and walk for 30 minutes at a time.
Adjudicator Truong found that on the balance of probabilities, the Applicant had failed to prove she continued to suffer from a complete inability to carry on a normal life.
She also found that the proposed treatment and assessment plan was not reasonable or necessary as the Applicant made no submissions and pointed to no evidence to support her position. The Adjudicator disagreed with the claimant’s argument that the Tribunal should award the treatment plans on “compassionate grounds” as this was not a remedy available to the Applicant under the Schedule and she failed to point to any legislation or jurisprudence which supported that argument.
In dealing with the request for a Special Award, the Adjudicator noted the Applicant relied on s. 282(10) of the Insurance Act which had since been repealed. However, she addressed section 10 of the Ontario Regulation 664 which dealt with special award. As nothing was found payable, no award could have been sought.
In addressing costs, the Adjudicator noted that the Applicant relied on section s. 282(11) of the Insurance Act which had since been repealed. However, the Adjudicator reviewed Rule 19.1 for awarding costs and noted that costs were an exceptional remedy with a high bar. She declined to award any costs.
In addition to affirming that non-earner benefits remains a high bar to meet, this decision should be seen as a strong message to parties that Case Conferences Reports should be followed and that the LAT may not accept late documents. The Applicant’s failure to comply with the Case Conference timelines resulted in the exclusion of supportive evidence. The Case Conference is a party’s opportunity to address the issues in dispute and raise any pending issues, such as delayed expert reports. Failure to do so may result in significant prejudice to the defaulting party. On all issues, this decision demonstrates that evidence drives the day.
On a parting note, it is worth noting that the LAT continues to treat costs as an “exceptional remedy” that carries a high bar. Although there was no evidence to support costs for the Applicant, it is interesting that despite the finding of sharp practice, which arguably resulted in additional costs for the Insurer, no costs were pursued in relation to the late submission of the report. Going forward, Insurers should consider including a claim for costs in their submissions where one party fails to comply with mandated time lines.
Devan practices insurance related litigation with a focus on accident benefits claims.
I don't think there's a better way to say "I love you" than to give that special someone their very own copy of Auto Insurance Coverage Law in Ontario. For those dark and lonely nights when your loved one wants to read about the meaning of "accident" for third party liability coverage. Or to look up how arbitrators have defined the word "dependant" in section 3 of the Statutory Accident Benefits Schedule. Sometimes your spouse might just want to confirm that they are indeed a "spouse", as that word is defined in section 224 of the Insurance Act. Give your loved one the chance to say:
"I remember one Valentine's Day not too long ago. It was snowy and brisk outside. A Polar Vortex had swept through the city. The day seemed to last forever. I had spilled hot coffee on my new jacket. I was miserable. Alone. Afraid. And then when I got home, I could not believe my eyes! My loved one had bought me my very own copy of Auto Insurance Coverage Law in Ontario!"
Imagine the opportunity to spend a warm summer evening with your loved one, cuddling together on the deck and reading together about uninsured automobile coverage under section 265 of the Insurance Act. The birds begin to sing that sweet summer song. The evening air smells like warm apple pie. And just when the moment couldn't be any more romantic, your loved one reads out loud:
The legislative intent of section 265 is to alleviate the trouble of motorists injured by drivers of uninsured and unidentified automobiles.  The coverage is designed to spread the risk of uninsured drivers among drivers, through insurance policies, and not among the tax base generally, through the Motor Vehicle Accident Claims Fund. 
And then you hear your loved one recite those sexy footnotes:
Barton et al. v. Aitchison et al.,  O.J. No. 3510 (C.A.), 39 O.R. (2d) 282, at para 16.
Bruinsma v. Cresswell,  O.J. No. 770 (C.A.), 114 O.R. (3d) 452, at para 24.
"That's very original", she said sarcastically.
"Stop trying to make me fat", he said depressingly.
In applying s. 9(3) of the Fault Determination Rules to a chain reaction collision involving three moving vehicles and one stopped vehicle, the Superior Court has adopted the Court of Appeal’s analysis of s. 9(4) in State Farm Mutual Automobile Insurance Company v. Old Republic Insurance Co. of Canada to find that there must be a direct impact between a heavy commercial vehicle and the vehicle whose insurer seeks indemnification for loss transfer to apply. The involvement of a fourth “stopped” vehicle in the incident is of no consequence.
Kingsway General Insurance Company v. Dominion of Canada General Insurance Company dealt with a chain reaction involving four vehicles. The first vehicle, insured by Kingsway, was a heavy commercial vehicle (vehicle “C”) which struck a moving passenger automobile (vehicle “B”). Vehicle “B” subsequently struck a second moving passenger automobile, which was insured by Dominion (vehicle “A”). Vehicle “A” then struck a third passenger automobile (vehicle “Z”), the only vehicle which was stopped at the time of the chain reaction.
Dominion paid statutory accident benefits to its insured, the driver of vehicle “A”. On the basis of the involvement of the stopped fourth vehicle in the collision (vehicle “Z”), Dominion sought loss transfer from Kingsway pursuant to the ordinary rules of tort law under s. 5 of the FDRs. Given that s. 9(3) requires all of the automobiles involved in the incident to be “in motion,” Dominion took the position that s. 9(3) did not apply.
At the arbitration level, Arbitrator Novick agreed with Dominion and found that s. 9(3) did not apply on the basis that the fourth vehicle involved in the chain reaction was stopped at the time of the accident. In the absence of specific wording in s. 9(3), she did not accept Kingsway’s argument that the FDRs were required to be approached in “clusters” or “groupings” of three vehicles. Applying the ordinary rules of tort law pursuant to s. 5 of the FDRs, Arbitrator Novick concluded that vehicle “C” was 100% at fault for the collision and that Kingsway was therefore required to indemnify Dominion for all statutory accident benefits it paid out to the driver of vehicle “A”. She added that, even if s. 9(3) did apply, Kingsway would still be required to indemnify Dominion despite the fact that vehicle “C” did not directly collide with vehicle “A”.
In allowing Kingsway’s appeal, the Superior Court adopted the Court of Appeal’s analysis of s. 9(4) in State Farm v. Old Republic that the degree of fault for each collision between two automobiles involved in the chain reaction must be determined without reference to any related collisions involving either of those two automobiles. The Superior Court concluded that it makes no sense to conclude that vehicle “A” was responsible for the whole chain reaction if vehicle “Z” (the fourth vehicle) was moving when it was struck by vehicle “C,” but find that vehicle “B” bears 50% responsibility for the collision with vehicle “A” instead of vehicle “C” if vehicle “Z” was either stopped or not involved.
In reiterating the Court of Appeal’s finding that ss. 9(3) and 9(4) are “parallel provisions [that]… must be read consistently,” the Superior Court concluded that s. 9(3) should only consider vehicles “A,” “B” and “C” as illustrated in the diagram in the FDRs, and not any additional vehicles which may be involved farther down the chain. Applying the standard of review of correctness to the question of law at issue, given that vehicles “A,” “B” and “C” were all in motion at the time of the accident, the Superior Court ruled that the arbitrator erred by refusing to apply s. 9(3) to the collision. Ultimately, the Superior Court accepted the Court of Appeal’s reasoning in State Farm v. Old Republic to conclude that s. 9(3) is not available to apportion liability between vehicles involved in the same chain reaction that do not directly collide.
This decision serves as a strong reminder that, unlike determining liability in tort matters, the loss transfer regime is meant to be applied in an expedient, economical and summary manner. Despite the presence of a fourth vehicle (or more) in the context of chain reaction collisions, the insurer of vehicle “A” still cannot “leapfrog” over vehicle “B” and claim loss transfer against the insurer of vehicle “C”. The involvement of additional vehicles, whether stopped or in motion, does not change the way in which fault is strictly determined under s. 9(3) of the FDRs.
Our lawyers have worked through the maze of complex litigation and coverage issues, managed the class action juggernaut, and represented employees of insurers that come under attack by plaintiff`s litigation. Some of the problems we face are front page news, most are not. They are all problems that are important to our clients, and to us.