A.R. v. Wawanesa Mutual Insurance Company, LAT AABS 17-000149, Adjudicator Msosa
This matter involved a dispute over medical benefits. The applicant was seeking payment for two orthopedic assessments; one submitted approximately 3 years post-accident and the second submitted on the eve of a FSCO arbitration roughly 4.5 years post-accident. The insurer took the position that neither orthopedic assessment was reasonable and necessary because the claimant sustained uncomplicated soft-tissue injuries as a result of the accident.
Importantly, the applicant included the two incurred orthopedic reports but failed to include the relevant OCF-18s in the materials submitted to the LAT. The adjudicator commented that the Applicant had not connected the evidentiary dots to prove that the assessments were reasonable and necessary.
The adjudicator held that the OCF-18s were not reasonable and necessary as the applicant had not provided the treatment plans setting out the goals and purpose of the assessment. The adjudicator found that the applicant had not provided any evidence of an orthopedic injury.
Co-operators v. Intact and Northbridge, Private Arbitration, Arbitrator Novick
In this priority matter, the claimant was struck as a pedestrian after disembarking his tractor trailer, of which he had regular use. He applied for SABS benefits to his wife’s personal insurer, Co-operators. Co-operators had placed Intact on notice for having insured the claimant on a personal policy. Co-operators had also placed Economical on notice, as preliminary investigation suggested that Economical insured the tractor trailer. However, after the 90-day notice deadline passed, it was discovered that Northbridge actually insured the tractor trailer. Intact then provided notice to Northbridge under Section 10 of O. Reg 283/95.
At the ensuing arbitration, first there was a dispute as to whether the claimant was an “occupant” of the tractor trailer when struck as a pedestrian by a passing car. Arbitrator Novick found that an objective observer would have considered him to be a driver of the tractor trailer at the time of the accident. Although the exact circumstances of the accident were unclear, the claimant was in the process of delivering a load at the time and was expected to return to the vehicle to do so.
Second, Northbridge disputed that it could be brought into the arbitration because it did not receive notice from Co-operators within 90 days of the OCF-1 being received. While Section 10 permits “second insurers” to serve other insurers with notice, Northbridge argued that it should not operate to “save” the first insurer where it failed to serve proper notice on an insurer higher in priority within 90 days. Northbridge argued that Section 10 notices should only be effective if the “second insurer” serving the notice is higher in priority than the “first insurer” which received the OCF-1.
Arbitrator Novick disagreed with Northbridge. She found that the 90-day notice requirement in Section 3 is intended to “get the party started”. Insurers who are later placed on notice under Section 10 may be brought into the arbitration proceeding regardless of how they stack up in comparison in comparison to the other insurers involved. Co-operators was not barred from pursuing Northbridge, which was determined to be the priority insurer.
Aviva v. Pafco, Allstate, MVACF, and Belair, Private Arbitration, Arbitrator Jones
This was a preliminary issue hearing regarding whether the arbitration was limitation barred.
O. Reg 283/95 requires that a priority arbitration be commenced within one year of the firstnotice provided under Section 3. In this matter, Aviva had provided its first notice to Pafco. It later provided a more detailed notice to Pafco and the remaining insurers. Aviva failed to commence the arbitration within one year of its first notice to Pafco. However, the arbitration was commenced before the 1-year anniversary of notices given to the other insurers.
The respondents argued that the entire arbitration was barred because it was not commenced within one year of the firstnotice provided. In support, the respondents relied upon Section 10(3), which states that all priority disputes in relation to a particular SABS claim are to be dealt with in “one arbitration”.
Aviva argued that its first notice to Pafco was not sufficiently detailed to be considered notice under Section 3. Alternatively, Aviva submitted that it should not be precluded from arbitrating against the other insurers, who it commenced arbitration against within one year of putting them on notice under Section 3.
Arbitrator Jones confirmed that notice from one insurer to another under Section 3 does not need to be overly detailed. Most significantly, he ruled that the entire arbitration was barred since it was not commenced within one year of the first notice provided to Pafco. Aviva was not permitted to have separate limitation periods for the other responding insurers, who could potentially bring Pafco back into the dispute.
Pan v Allstate Insurance Company of Canada, FSCO A16-003705, Arbitrator Alan Smith
This matter involved a dispute with respect to the quantum of income replacement benefits (IRBs) payable. The applicant was self-employed at the time of the accident. The insurer had been paying IRBs but took the position that:
(1) the applicant had not proven her pre-accident income; and, (2) it was entitled to deduct CPP benefits to which the applicant may be entitled.
The arbitrator found that the applicant had proven her pre-accident income based entirely upon her self-reporting documentation. While this finding was concerning, the case is most significant because the arbitrator gave effect to Section 4(1)(b) of the SABS. He found that the applicant had CPP benefits “available” and, therefore, the insurer was entitled to deduct her potential entitlement from IRBs. The arbitrator found that, at 18 months post-accident, it was reasonable to consider the applicant’s injuries “severe and prolonged”, which would qualify her for CPP disability benefits.
The arbitrator found that the insurer was entitled to deduct the CPP benefits from IRBs, despite not having requested that the claimant apply for same. This is the only case which stands for this principal.
Lisa has an insurance law practice that has focused exclusively on insurance defence for 15 years. Her practice focuses on complex insurance-related litigation, including accident benefits and bodily injury. Read more ...