Archive for July 2013
The Financial Services Commission of Ontario (FSCO) is reporting that the backlog of mandatory mediations will be over by the end of August, 2013.
When an accident benefits insurer denies a benefit, such as medical treatment, a mediation through FSCO is the mandatory first step in the dispute resolution process. In previous years a mediation date would often take up to one year from the date the mediation application was submitted. Judicial and arbitration decisions (ironically from arbitrators at FSCO) deemed that a mediation must be conducted within 60 days in accordance with the Dispute Resolution Practice Code or it can be deemed to have been failed.
FSCO provided statistics and timelines with respect to the backlog. These can be viewed by clicking here.
The Ontario Court of Appeal has upheld the decision of Justice Ray in Henry v. Gore Mutual Insurance Company, 2012 ONSC 3687, which found that an automobile insurer must pay an insured the full amount of attendant care benefits as set out in the Form 1 and is not entitled to take a proportional approach to the payment of this benefit. Gore Mutual Insurance argued that its liability for attendant care benefits was limited to the number of hours that the attendant care provider lost from work. Justice Ray did not agree with this approach and stated that a plain reading of the relevant section must be followed.
The Honourable Alexandra Hoy, who wrote on behalf of the Court of Appeal, stated the following:
Attendant care benefits are only payable in respect of the provision by a family member of care detailed in the Form 1 assessment of the insured’s attendant care needs if the family member sustains an economic loss as a result of providing such care to the insured. If an economic loss is sustained, attendant care benefits are payable with respect to all care detailed in the Form 1 provided by the family member, subject to the maximums in s. 19(3) and various other safeguards, including ss. 42 and 33 of SABS-2010. If no such loss is sustained, no attendant care benefits are payable in respect of care provided by the family member, even if the family member provides care that would otherwise be provided by someone in the course of their employment, occupation or profession and would necessitate the payment of attendant care benefits by the insured. And to the extent that the economic loss sustained by the family member as a result of providing such care to an insured exceeds the maximum attendant care benefits stipulated in SABS-2010, the family member is not indemnified.
Please see our blog post on the trial judge’s decision by clicking here.