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Appealing a License Appeal Tribunal Decision May Be Made On a Question of Law Only

 Oct 17, 2017 10:00 AM
by Dan Inkpen

In Melo v. Northbridge Personal Insurance Corporation, Justice Croll, writing for The Divisional Court, confirmed that pursuant to s. 11(6) of the License Appeal Tribunal Act, an appeal from a decision of the Tribunal relating to a matter under the Insurance Act, R.S.O. 1990, c. I.8 may be made on a question of law only. Justice Croll further indicated that the standard of review to be applied is reasonableness.

The Appellant was involved in a motor vehicle accident on August 28, 2015. He applied for statutory accident benefits from his own insurance company, Northbridge Personal Insurance Corporation. The Adjudicator found that the Appellant was not entitled to income replacement benefits in the amount of $389.11 per week from January 28, 2016 to the date of his decision.

Justice Croll indicated that the Adjudicator cited the correct legal test to prove entitlement to an income replacement benefit, and correctly identified and conducted the comparative exercise that section 5(1) of the Schedule requires. The Adjudicator weighed the evidence, applied the proper stand of proof, and provided reasons for his findings, which were all ground in the material before him. Justice Croll indicated that the Adjudicator’s exercise of weighing the evidence and preferring some evidence over other evidence does not amount to a question of law only. Justice Croll stated that the Appellant failed to establish an error of law and that the Adjudicator’s decision was reasonable as it was within the range of possible outcomes.

See : Melo v. Northbridge Personal Insurance Corporation, 2017 ONSC 5885 (CanLII)

Dan's practice areas of interest include accident benefit and bodily injury litigation, loss transfer and priority dispute arbitrations and subrogation litigation.

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But For… Everyone Else (Not Me!)

 Oct 11, 2017 7:00 AM
by Alexandra Wilkins

In Sacks v. Ross, the Ontario Court of Appeal dealt with how to apply the causation test in medical negligence cases involving multiple tortfeasors.

Sacks suffered serious injuries arising from complications after a routine bowel surgery. An anastomotic leak occurred after surgery, which spilled into his abdominal cavity, but the discovery of the leak was delayed, and by the time treatment started, he was in septic shock. Ultimately, he was in a coma for several weeks and his legs were both amputated.

At trial, Sacks put forth that the delay and treatment caused his injuries, which were the result of cumulative errors made by the respondents, a team of doctors, nurses and Sunnybrook Hospital, who treated him after his bowel surgery. The respondents argued that the delay in diagnosis did not cause Sacks’ injuries – his injuries were actually caused by flesh eating disease, which could not have been diagnosed or treated when it first arose.

At trial, the jury found five of the defendants breached their respective standards of care, but none of the breaches caused the injuries. Sacks appealed, arguing that the trial proceeded on a mistaken understanding of the appropriate causation test, evidenced by improper jury questions and instructions. Sacks argued that in cases involving multiple tortfeasors, a “global but for” test for causation should apply.

Ultimately, the Ontario Court of Appeal dismissed the appeal. The Court followed the prior Clements decision, where the Supreme Court found that the “but for” test also applies in complex, multiple tortfeasor, negligence cases.

The Sacks decision is significant for the Court’s discussion of the causation test and how it should be applied in complex negligence cases. The Court reminded that the normal causal reasoning process follows three steps:

Step one: what likely happened in actuality – whether the delay in treatment led to the plaintiff’s injury?

Step two: what would have happened if the defendant had not breached their standard of care?

Step three: allocate fault amount the negligent defendants

The analysis requires the jury to analyze each event in the sequence of events, while ignoring any decision it might have made with respect to an earlier event.

To reflect the causal reasoning process, the court recommended framing the jury questions as follows:

  1. Have the Plaintiffs proven, on a balance of probabilities, that a delay in treatment caused Sack’s injuries?
  2. If yes to #1, have the Plaintiffs proven, on a balance of probabilities, that the delay resulting from [this defendant’s] breach of the standard of care caused or contributed to the injuries of Sacks?
  3. If yes to #2, how did [this defendant] breach the standard of care?

Importantly, question #1 only asks the trier of fact to consider what the plaintiff needed by way of timely diagnosis and treatment in order to avoid injury, without considering the presence or absence of any breaches of the standard of care. In contract, question #2 determines fault.

See Sacks v. Ross, 2017 ONCA 773 (CanLII) 

Alexandra practices insurance related litigation with a focus on accident benefits and bodily injury claims. 

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Who Dunnit? Use the “But For” Test!

 Oct 6, 2017 12:00 PM
by Alexandra Wilkins

In the FSCO Appeal Decision of State Farm and Sabadash (P16-00029), Director’s Delegate Evans conducts a thorough analysis of the key jurisprudence on causation in Canada of the key causation decisions: Athey v. Leonati (1996 S.C.C.), Resurfice Corp v. Hanke (2007 S.C.C.)., Clements v. Clements (2012 S.C.C.) and Monks v. ING Insurance Co. (2008 Ont. C.A.) and confirms that the “but for” test is the primary causation test for SABS litigation.

Delegate Evans set out that the “material contribution to risk” test could still be applied but only once the claimant passed the “but for” test, such that there can be no fallback to use the “material contribution” test if the claimant fails the “but for” test.  As a result, the “material contribution” test only becomes relevant in the rare circumstances where an accident alone and a pre-existing condition alone could have directly caused an impairment.   Similarly, the de minimis test may only play a role after the “but for” test has been answered in the affirmative.

While this decision provides some much needed clarity for decisions where causation is in dispute, it may not be the final word on the subject since the claimant in Agyapong v. Jevco has filed for Judicial Review.

Alexandra practices insurance related litigation with a focus on accident benefits and bodily injury claims. 

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