In the recent decision of M.P. v. Certas Home and Auto Insurance Company, the License Appeal Tribunal has tackled the issue of whether attendant care expenses are incurred where a claimant’s “professional” attendant care provider is also a family member. Both sections 3(7)(e)(iii)(A) and 3(7)(e)(iii)(B) were in issue.
The Adjudicator held that the claimant's wife, who was a Health Care Aid and who provided attendant care to the claimant did not do so in the course of her ‘ordinary’ employment because she provided the care to her husband outside her normal working hours. Similarly, the Adjudicator accepted that as the wife’s subsequent period of unemployment was unrelated to the accident as her services performed during that time were also not done in the course of her employment which she would ordinarily have been engaged but for the accident.
In M.P., the claimant’s wife was employed as a Health Care Aid at the time of the accident. It was agreed that her qualifications were sufficient for her to be considered a “professional” attendant care provider. After the accident, she continued to work as a Health Care Aid as she had prior to the accident as well as providing attendant care for her husband outside her normal working hours. Within 18 months of the accident, the claimant’s wife claimed that she had to stop working due to a medical problem she developed due to the increased demands of having to care for her husband. She began providing full-time care to the claimant seven days per week. The insurer argued that she stopped working due to a lack of available work and relied on a letter from the claimant’s counsel which stated as much. As a result there was no proof that she had sustained an economic loss.
According to section 3(7)(e)(iii)(A) of the SABS, an attendant care expense is “incurred” if the person who provided the services did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged but for the accident.
In M.P. during the initial period after the accident until January 2015, Adjudicator Sewrattan found the claimant’s wife did not meet the “incurred” definition because she worked the same hours as she did before the accident and only cared for her husband in her spare time. The Adjudicator concluded that because she cared for her husband outside her normal working hours her services were not performed in the course of the employment, which she would ordinarily have been engaged but for the accident. The Adjudicator relied primarily on the fact that the claimant’s wife continued to work on the same basis after the accident as she had before and that the services to the claimant were provided when she was at home and would have provided the assistance in any event. The Adjudicator cites this as one of the underlying reasons for the changes to the definition of “incurred” that was articulated in Henry v. Gore; namely that the changes were implemented to prevent family members from being compensated for care that would have been provided without compensation in any event.
With respect to the period 18 months after the accident, the claimant argued that as his wife was forced to stop working to care for him when she would have ordinarily been able to work; therefore her services met the definition of “incurred” as per section 3(7)(e)(iii)(A) because they were provided in the course of her employment, occupation or profession in which she would ordinarily have been engaged but for the accident. The Adjudicator rejected the claim that she could not work due to a medical condition caused or exacerbated by caring for the claimant because it was not explicitly stated in her affidavit or corroborated by any medical documents. Moreover, the Adjudicator preferred the evidence relied upon by Certas to support that the claimant’s wife was unemployed due to a lack of work as evidenced by a letter from her husband’s legal counsel. As a result the Adjudicator concluded that the attendant care expenses were not “incurred” as the services provided by the applicant’s wife were not done in the course of her employment, occupation or profession which she would ordinarily have been engaged but for the accident.
According to section 3(7)(e)(iii)(B) of the SABS, an attendant care expense is “incurred” if the person who provided the services sustained an economic loss as a result of providing the goods or services to the insured person. In this case, the Adjudicator found insufficient evidence of such economic loss in light of the factual conclusions drawn.
This decision is a departure from Walsh and Echelon General Insurance Company, FSCO A15-007448 (August 31, 2016) which found that a professional service provider does not need to care for the claimant in his or her pre-accident working hours to meet the definition of “incurred”. In Walsh, the claimant’s wife assisted him with personal care after a motor vehicle accident. At the time she was employed as a personal support worker (PSW) and worked evening shifts. After the accident, she continued to work her evening shifts and cared for her husband during the day. Eventually, her employer granted her request to take an unpaid leave of absence specifically for the purpose of caring for her husband. Arbitrator Drory held that just because the claimant’s spouse was not at work when she cared for her husband did not mean that she was not in the course of the employment, occupation or profession in which she would ordinarily have been engaged.
The M.P. case creates uncertainty about the issue of whether professional caregivers who family members are providing service outside of their normal working hours will satisfy the definition of “incurred”. This decision provides an alternative framework to analyze the definition of incurred as it places a greater emphasis on the premise that people will not be compensated for work that they would have performed in any event without compensation.
Director’s Delegate Evans recently released the appeal decision in Intact Insurance Company v. Roberts (FSCO Appeal PO16-00009). The claim arose following an incident whereby the claimant was partying with friends...
Director’s Delegate Evans recently released the appeal decision in Intact Insurance Company v. Roberts (FSCO Appeal PO16-00009). The claim arose following an incident whereby the claimant was partying with friends when she dove off the back of a pick-up truck into a shallow lake, completely severing her spinal cord. She applied to Intact for accident benefits, however, Intact denied the claim on the basis that the claimant was not involved in an “accident”.
The arbitrator initially found that the claimant’s injuries arose from an “accident” as defined in the Statutory Accident Benefits Schedule – Effective September 1, 2010 (SABS). He determined that the evidence established that the claimant jumped off the tailgate of the truck into the lake. The arbitrator also considered the “purpose” and “causation” tests and made the following findings: (1) He found that the truck was being used in a manner consistent with its design ie. the claimant and her friends were “tailgating”; (2) he determined that parking and disembarking from a truck was an ordinary use; (3) it made no difference what type of surface the claimant was disembarking onto (ie. water, ice etc.); and (4) he found that there were no intervening acts between the act of “disembarking” and landing in the lake. As such, the arbitrator found that the purpose and causation tests had been met and, therefore, the claimant was involved in an “accident”.
Director’s Delegate Evans disagreed that this was an “accident”. He did agree with some of the arbitrator’s findings, including (1) trucks can be used for recreation, (2) the evidence indicated that the claimant had jumped from the truck into the lake; and (3) it did not matter what type of surface one was disembarking onto nor how one went about disembarking. However, Director’s Delegate Evans relied on the finding of the Supreme Court in Citadel General Assurance Co. v. Vytilngam, whereby the Court stated that using a car as a diving platform was the very type of aberrant use of a vehicle that would be excluded from the “purpose” test. Director’s Delegate Evans noted that the arbitrator had considered this case, but rejected it in “too cavalier a fashion”. He also noted that this case had also been cited with approval by the Ontario Court of Appeal. In applying the reasoning of the Supreme Court in Vytilingam, Director’s Delegate Evans found that the truck was not being used as a vehicle, but for some other purpose. As such, the claimant was not involved in an “accident” and, accordingly, was not entitled to accident benefits.
Julianne's practice areas of interest encompass a wide range of insurance defence matters, including accident benefit litigation and arbitrations, subrogation, bodily injury litigation and priority and loss transfer disputes.
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.