In MK v Dumfries Mutual, LAT adjudicator Jeanie Theoharis stated that “in arbitration hearings an Applicant’s credibility is vital, particularly where there are competing medical opinions”.
The adjudicator looked closely at the Applicant’s self-reports, surveillance, the clinical notes and records of the Applicant’s treating doctors and the content and quality of assessor’s reports for internal consistency and consistency with known facts. The adjudicator found there was a contradiction between surveillance and the statement given by the Applicant; that the Applicant’s psychological assessment was unreliable; and, that the Applicant’s self-reports were not supported by the records of her treating doctors.
Ultimately the adjudicator held that the Applicant’s injuries fall within the Minor Injury Guideline and that she is not entitled to income replacement benefits.
Lisa is the Managing Partner of Samis+Company. Lisa practices a variety of insurance-related litigation, including accident benefits, personal injury, premise liability and subrogation.
FSCO Director’s Delegate Evans has upheld an arbitration decision that has found that a treatment and assessment plan is not payable despite a Section 38 deficiency if the OCF-18 is not warranted.
In Sadozai v. State Farm Mutual Automobile Insurance Company, Mr. Sadozai appealed the denial of an in-home assessment by Arbitrator Musson. Counsel for Mr. Sadozai argued that since State Farm had failed to provide a denial within ten business days of receipt of the OCF-18, it should be automatically payable. Arbitrator Musson had indicated that the onus is on the claimant to prove that the medical benefits and costs of examinations in dispute are necessary, which Mr. Sadozai failed to do.
Director’s Delegate Evans agreed with Arbitrator Musson, citing the analysis of Arbitrator Wilson in Ying Al Chen and State Farm Mutual Automobile Insurance Company, May 30, 2016. Arbitrator Wilson noted, the SABS is not a lottery for treatment providers where the prize is the deemed approval of a meritless treatment plan. Further, the precondition is that the claimed expenses be “reasonable and necessary” before an insured can claim indemnity from an insurer.
This decision reinforces the importance of considering the merit of each treatment and assessment plan disputed, despite a Section 38 deficiency.
Dan's practice areas of interest include accident benefit and bodily injury litigation, loss transfer and priority dispute arbitrations and subrogation litigation.
Does an ATV become an “automobile” under Ontario insurance law if it is involved in an accident outside Ontario?
In Benson v. Belair, an Ontario resident fell off the back of an All-Terrain Vehicle (ATV) in Fort Nelson, British Columbia. He sustained a severe traumatic brain injury. The ATV, owned and operated by a BC resident, was not required to be insured under an automobile policy in BC and it was not insured.
Because of the incident, the claimant applied to his automobile insurer for Ontario accident benefits, claiming recourse against his personal policy. The insurer denied the claim on the basis that the ATV was not an “automobile” and, accordingly, there was no coverage under the policy.
What is an Automobile?
Section 224(1) of Ontario's Insurance Act defines automobile:
(a) a motor vehicle required under any Act to be insured under a motor vehicle liability policy, and [emphasis added]
(b) a vehicle prescribed by regulation to be an automobile; (“automobile”)
In Adams v. Pineland Amusements Ltd. 2007 ONCA 844 (CanLII), the Court of Appeal set out a three-part test for determining whether a vehicle is an “automobile”. The first question is whether the vehicle is an “automobile” in ordinary parlance.
If it is, it is an automobile.
If it isn’t, the second question is whether the vehicle is defined as an automobile in the wording of the insurance policy.
If it is, it is an automobile.
If it isn’t, the third question is whether the vehicle falls within any enlarged definition of “automobile” in any relevant statute?
ATVs inside Ontario
Section 15 of the Off-Road Vehicles Act requires all “off-road vehicles”, such as an all-terrain vehicle, dune buggy, or dirt bike, to be insured under an automobile policy when they are being operated on land that is not occupied by the owner of the vehicle. Accordingly, whether a particular off-road vehicle needs to be insured under an auto policy almost always depends on where the vehicle is operated at the time of an incident.
In other words, an off-road vehicle operated in Ontario is always required to be insured under a motor vehicle liability policy unless it is being driven on land that is occupied by the owner of the vehicle. This means that a land occupier can use her off-road vehicle without insurance as much as she wants on her own land. But once she decides to ride the vehicle on someone else’s land (public or private land), it must be insured under an auto policy. And once the vehicle is required to be insured, it becomes an “automobile”.
ATVs Outside Ontario
Many jurisdictions outside Ontario, such as BC, do not require ATVs to be insured under automobile policies.
Interplay Between Ontario Auto Insurance Policy and Foreign ATV
In Benson, the claimant argued that the phrase “any Act” in the s. 224 definition of “automobile” meant any “Ontario” Act. There was no question in Benson that if the accident happened in Ontario, section 15 of the ORVA would have required the ATV to be insured at the time of the incident, because it was being operated on public lands (land not occupied by the owner of the ATV). This was the basis of the claimant’s argument against Belair.
However, the accident did not happen in Ontario.
Therefore, the big question in Benson was whether the ATV in BC was an “automobile” under section 224 (1) of Ontario’s Insurance Act because of section 15 of the ORVA. Put another way, do the provisions of the ORVA apply to a vehicle being operated in BC?
The arbitrator found that the matter was governed by the laws of the land where the incident occurred. He found that the ATV was not required to be insured in BC, so Ontario’s Insurance Act and could not apply to require the vehicle to be insured in BC. Accordingly, he found that the ATV was not an “automobile”.
Director’s Delegate Evans agreed with the arbitrator and dismissed the appeal. The delegate held that the territoriality principle (from conflict of laws jurisprudence) provides that Ontario’s law on what motor vehicles must be insured has no binding effect in British Columbia.
This case requires an adjudicator, considering whether a vehicle falls within any enlarged definition of “automobile” in any relevant statute, to focus on the laws of the jurisdiction where the incident occurred. An automobile in Ontario might not be an automobile in a foreign jurisdiction.
See Benson v. Belair, (February 15, 2017, Appeal P15-00059).
Daniel is a Partner of Samis+Company and manages our Waterloo office. The son of a plaintiff lawyer, he decided in law school that he wanted to work for the insurance industry.
The Workplace Safety and Insurance Appeals Tribunal (WSIAT) recently released decision #1572/16 confirming that a company’s failure to register with the Board is not, in and of itself, a bar to a worker receiving benefits from the WSIB.
This section 31 application arose as a result of a motor vehicle accident that occurred in Thornhill, Ontario. Z was driving his employer’s vehicle when he collided with M. At the time of the accident, M was working as a car jockey and was in the course of delivering a vehicle to a customer. Following the accident, Z applied for Statutory Accident Benefits from his employer’s insurer and issued a tort claim against M.
Both the SABS insurer for Z and the tort defendant had an interest in bringing the application to the WSIAT. While a person injured in a motor vehicle accident is normally entitled to elect to sue the negligent party or claim compensation from the WSIB, they are not permitted to continue to litigate when both parties involved are considered workers and are in the course of their employment at the time of the loss. Although outside the jurisdiction of the Vice-chair in this matter, section 61(1) of the SABS provides that an insurer does not need to pay accident benefits when a claimant has co-existing coverage under the Board’s insurance plan.
At the hearing, Z argued that he was not a “worker” (i.e. lacking WSIB coverage) and that he was not “in the course of his employment” at the time of the accident. Both arguments were rejected by the Vice-chair.
Z’s main argument was that his employer did not report to the Board as a Schedule 1 employer until post-loss. The information was predicated upon misinformation that he had received, which went squarely against the information the WSIB provided to the WSIAT in the normal course of such hearings.
As a Scheduled entity, the Vice-chair found that Z’s employer either was or should have been reporting to the Board at the time of the accident and, therefore, there was WSIB coverage for the claimant at the time of the accident. Since M (the tortfeasor) was also an employee of an employer reporting to the Board at the time of the accident, M was considered a worker also in the course of his employment. As such, section 28 of the Workplace Safety and Insurance Act was triggered and the claimant’s right to sue the tortfeasor was taken away. Left without a bona fide election to sue in tort, section 61(1) of the SABS applied such that Z was not entitled to claim SABS benefits trigger that insurer’s right to an indemnity from the WSIB.
The take away from this decision is that the failure of an employer, carrying on a business activity listed within the Schedules to the WSI Act, to register with the WSIB is no bar to their injured employee receiving compensation from the Board if it is later found that the employer should have so registered. It also does not bar a section 31 order from issuing.
See Decision No. 1572/16, which will be posted online shortly.
Alexandra practices insurance related litigation with a focus on accident benefits and bodily injury claims.
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.
Can an occupier, who is also a "supplier" under the Consumer Protection Act, defeat an Occupiers Liability Act claim by relying on a liability waiver that might violate the CPA?
In the very recent case of Schnarr v Blue Mountain Resorts Limited, the Plaintiff purchased a ski pass from a resort, on the internet. To purchase the pass, he had to execute a comprehensive waiver/release of liability, which he did online. The waiver specifically barred the Plaintiff from pursuing any legal action against the resort whatsoever, including negligence, breach of contract or breach of any statutory or other duty of care.
One day, the plaintiff decided to utilize his ski pass, and headed out on the slopes at the defendant’s ski resort. Unfortunately, the plaintiff was injured while skiing.
The Plaintiff issued a lawsuit against the resort, where he pled breach of deemed warranty pursuant to terms of the Consumer Protection Act (CPA) and negligence under the Occupiers Liability Act (OLA). Section 9(1) of the CPA states: “The supplier is deemed to warrant that the services supplied under a consumer agreement are of a reasonably acceptable quality.” Section 7(1) of the CPA states that: “The substantive and procedural rights given under this Act apply despite any agreement or waiver to the contrary”. The plaintiff argued that, because of sections 9(1) and 7(1) of the CPA, the defendant could not obtain a waiver of its obligations under the CPA to provide services of a “reasonably acceptable quality”.
The plaintiff brought a motion for a finding that section 7(1) of the CPA applied to to vitiate the waiver in its entirety, with the further result that the plaintiff might restore his full rights to sue and to claim damages in negligence for the injuries that he suffered.
The Court delved into the interplay between the OLA and CPA, and the purpose and scope of each statute. The Court noted that on their face, the statutes take different approaches to waivers. This is so because they have very different legislative purposes. Waivers in the OLA are designed to shield occupiers. The rejection of waivers in the CPA is designed to shield consumers. A conflict in the application of both statutes arises when consumers clash with suppliers who are also occupiers.
The Court held that where a waiver is limited in scope to the four corners of what the OLA intended to protect, such waivers would not be impacted by anything in the CPA and would apply with full force. The Court then went on to hold that where a waiver goes beyond the parameters permitted by the OLA and, in particular, includes terms that touch on the deemed warranty anticipated by the CPA, the waiver exceeds the objectives of the OLA and presents with a defect.
Ultimately, the Court cured the defect in the waiver by “reading down” waiver to sever and exclude from its ambit claims that involved the protection of rights under the CPA; the remainder of the waiver remained enforceable, preserving all aspects of the defendant’s waiver that were not affected by the prohibition contained in section 7(1) of the CPA.
This approach allowed the plaintiff to pursue two distinct causes of action: (1) the negligence claim and (2) the breach of warranty. The plaintiff’s negligence claim would be subject to the defendant’s waiver. Consistent with the terms of the CPA, the plaintiff’s breach of warranty claim would not be subject to any waiver.
In sum, the Court took a rather measured approach to the intersection between the OLA and CPA, in the context of an occupier’s liability waiver, by carving into, and chopping up a very broad waiver.