Motor Vehicle Accidents
Our firm successfully represented a client in an arbitration hearing through the Financial Services Commission of Ontario (FSCO).
D.C. (initials are being used, at our client’s request) was riding his bicycle in Burlington, Ontario, when an unidentified vehicle struck either him or his bike and he fell to the ground. D.C. does not recall the details of the actual impact, but did recall being struck by a white vehicle. The vehicle did not stop and there were no known witnesses.
D.C.’s bicycle was damaged to the point that he could not ride it home. The damage was seen by his wife and his brother-in-law. Since it would cost more to repair the bicycle than to buy a new one, it was thrown out in the trash. D.C. was unaware that, because his injuries were caused by a motor vehicle, he was eligible for accident benefits, so the bicycle was not kept as evidence. Additionally, the incident was not reported to police, as D.C. did not think that anything could be done since the vehicle that hit him was unknown and there were no witnesses.
He went home, scraped and bruised, but otherwise felt fine. The next morning his wife found him unconscious in bed and he was rushed to hospital by ambulance, where he was found to have suffered a subdural hematoma (acquired brain injury), which necessitated a full craniotomy. Several months later, in the course of his rehabilitation, he was advised to seek legal advice, since he could be eligible for accident benefits. D.C. called, and then retained, Smitiuch Injury Law.
An accident benefits claim was started with D.C.’s insurer, Aviva Canada. Aviva accepted D.C.’s accident benefits claim, accepted his injuries as being catastrophic, and began paying accident benefits. However, once some benefits were denied and were then disputed, Aviva took the position that D.C. was not involved in an “accident”, as defined in the Statutory Accident Benefits Schedule (SABS).
Luke Hamer, assisted by Chris Jackson (Accident Benefits Manager), represented D.C. Both the client, his wife, and his brother-in-law were interviewed and all were in agreement with the type of damage that was done to the bicycle. Based on their description, a forensic engineer was retained, who was then able to provide an opinion that the type of damage to the bicycle described by the witnesses could only have been caused by a motor vehicle.
Based on the testimony of the witnesses, the arbitrator ruled in favour of D.C. As a result, he will continue to be eligible to receive accident benefits, which he will likely require for the rest of his life.
The redacted arbitration decision can be read it its entirety by clicking on the link below.
NOTE: This arbitration decision was overturned on appeal. A petition for Judicial Review was filed, but later abandoned.
The Financial Services Commission of Ontario (FSCO) has released an arbitration decision that limits an insurer’s ability to request an Examination Under Oath in certain cases.
In the decision Neil Williams and State Farm Mutual Automobile Insurance Company [FSCO A14-001463], Arbitrator Maggy Murray considered whether or not an insurer was prohibited from providing a notice of an Examination Under Oath more than 10 business days after receiving an application and completed disability benefit for a specified benefit.
A specified benefit is an income replacement benefit, caregiver benefit, non-earner benefit, or housekeeping and home maintenance benefit.
Section 36(4) of the Statutory Accident Benefits Schedule (SABS), reads as follows (emphasis added):
(4) Within 10 business days after the insurer receives the application and completed disability certificate, the insurer shall,
(a) pay the specified benefit;
(b) give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or
(c) send a request to the applicant under subsection 33 (1) or (2).
Section 33 (1) and (2) of the SABS reads as follows:
(1) An applicant shall, within 10 business days after receiving a request from the insurer, provide the insurer with the following:
1. Any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.
2. A statutory declaration as to the circumstances that gave rise to the application for a benefit.
3. The number, street and municipality where the applicant ordinarily resides.
4. Proof of the applicant’s identity.
(2) If requested by the insurer, an applicant shall submit to an examination under oath, but is not required,
(a) to submit to more than one examination under oath in respect of matters relating to the same accident; or
(b) to submit to an examination under oath during a period when the person is incapable of being examined under oath because of his or her physical, mental or psychological condition.
Based on this decision (and a plain reading of the legislation), an insurer must provide notice of an Examination Under Oath for a specified benefit within 10 business days of receiving an application and completed disability certificate and an insured is not obligated to submit to an Examination Under Oath if notice has not been provided within that time period.
This decision can be read in its entirety by clicking on the link below.
The Financial Services Commission of Ontario (FSCO) has released a bulletin announcing changes to the Statutory Accident Benefits Schedule (SABS), service provider regulations, administrative penalties and eligibility for transportation expenses.
Below are the highlights:
- Effective December 1, 2014, both licensed and unlicensed service providers and provide goods and service to auto insurance claimants. Licensed service providers can receive payment directly from insurers, which unlicensed service providers cannot. Unlicensed providers must complete the OCF-21 form (Auto Insurance Standard Invoice) on HCAI, print it, and provide a copy to the claimant.
- Effective January 1, 2015, the current interest rate of 1% per month, compounded monthly, will continue to apply. However, once a mediation proceeding has commenced, the interest rate will then change to the prejudgement interest rate described in the Courts of Justice Act for past pecuniary loss. This will be calculated from the date on which a mediation proceeding commenced and ending on the date a settlement is reached or a decision is issued. The current prejudgement interest rate is 1.3% per annum.
- It is now considered to be an unfair or deceptive act or practice if an unlicensed provider advertises as a licensed provider.
- There is now an exemption allowing licensed service providers to seek direct payment for a listed expense provided under the SABS from anyone other than an insurer.
- Specifies penalties for non-compliance with the newly added requirements.
- Reminds insurers that “authorized transportation expenses” apply only expenses incurred by the insured person or an aide. It notes that service provider mileage costs are subject to FSCO’s Professional Service Guidelines, which states that insurers are not liable for any other costs beyond what is permitted under the Professional Service Guideline.
The bulletin can be read in full at the following link:
Note: This decision was overturned on appeal.
A new arbitration decision from the Financial Services Commission of Ontario (FSCO) has determined that a “Genie Boom Crane” is an “automobile” under the Statutory Accident Benefits Schedule.
The decision, Joseph Beattie and Unifund Assurance Company [FSCO A13-005289], describes the Genie as, “a four-wheeled mobile crane, propelled by its own motor”, which is used to elevate a worker to perform a maintenance function.
In this particular case, the Applicant, Mr. Beattie, was operating the crane on a private parking lot. The ground level collapsed into the level below, injuring him. Mr. Beattie applied for accident benefits through his own insurance company, Unifund Assurance. Unifund took the position that the crane was not an “automobile” at the time and place when the structure collapsed and was, therefore, not an “accident”.
The arbitrator found that, since the crane was a “vehicle propelled or driven otherwise than by muscular power” and did not meet the specific exclusions under the section of the Highway Traffic Act, it was a vehicle. Since it was used off-road, it did not require compulsory insurance, thereby not making it subject to the provisions of the Insurance Act.
The entire decision can be read by clicking on the link below.
The Financial Services Commission of Ontario (FSCO) has released an updated Professional Services Guideline, which applies to expenses related to services provided by health care providers rendered on or after September 6, 2014.
A copy of the new guideline can be found at the link below.
The Financial Services Commission of Ontario (FSCO) has released two bulletins with new forms to be used for accident benefits claims, effective November 1, 2014.
The new forms include the Application for Accident Benefits (OCF-1), Treatment and Assessment Plan (OCF-18), Auto Insurance Standard Invoice (OCF-21) and the Treatment Confirmation Form (OCF-23).
In a bulletin released by FSCO it was indicated that the reason for these changes is “to improve transparency and clarity regarding data analytics and pooling of information to detect fraud. The OCF-23 has also been revised to accommodate Service Provider Licensing.”
These new forms can be downloaded at the links below:
A new arbitration decision from the Financial Services Commission of Ontario (FSCO) affirms previous decisions that a retrospective attendant care needs assessment (commonly referred to as a “Form 1”) are viable.
In the decision Stephanie Kelly and Guarantee Company of North America [FSCO A12-006663], Arbitrator John Wilson affirmed that Ms. Kelly is entitled to payment for supplementary attendant care services, to be reimbursed for the cost for the Form 1 assessment, interest, and her expenses in the matter.
Ms. Kelly suffered catastrophic injuries and required one-to-one attendant care while in hospital. Her family was, understandably, not in a position to know that a Form 1 was required to be completed to determine the amount of attendant care needs she required by use of a Form 1. Once they were aware that one needed to be completed they retained an occupational therapist, who then completed a retrospective assessment.
In considering The Guarantee’s position that no attendant care benefit is payable prior to a Form 1 being submitted to an insurer, Arbitrator Wilson relied on a previous arbitration decision, T.N. and The Personal, wherein Arbitrator Bayefsky stated the following:
This does not, in my view, mean that an insured forfeits their right to attendant care benefits, or that an insurer is released of any obligation to pay attendant care benefits, prior to the Form 1 being submitted. In my view, significantly stronger statutory language would be required to effect this purpose. The section as it now reads simply ensures the orderly determination of a person’s need for attendant care (in accordance with a proper attendant care needs assessment), and protects an insurer from having to determine what it should pay in the absence of a specific and legitimate attendant care needs assessment.
The decision can be read in its entirety by clicking on the link below.
The Financial Services Commission of Ontario (FSCO) has released an arbitration decision that confirms that the purchase of bus passes or tickets by a non-professional for the provision of housekeeping and home maintenance, as well as caregiving services and (arguably) attendant care, constitutes “economic loss” under the Statutory Accident Benefits Schedule (SABS).
On September 1, 2010, the accident benefits legislation was changed so that non-professionals (i.e., those who have not provided the services in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident) could only be reimbursed for the services they provided if they had incurred an economic loss. The term “economic loss” was not defined within the regulations.
In the decision Asokumaran and TD Home (FSCO A12-007443) Arbitrator Susan Alves noted that it was submitted that the insured’s friend purchased bus tickets and/or passes to travel to the insured’s home. Both parties agreed to submit to a preliminary issue on whether or not these expenses would constitute an “economic loss”. The arbitrator did not address whether or not these expenses were incurred to provide the housekeeping and caregiver services and that issue will be decided at the main arbitration hearing.
What is clear from this decision is the rejection of a de minimis requirement (that is, that there is a possible minimum amount required for an economic loss argument to be established). The insurer in this case relied heavily on a previous arbitration decision, Simser and Aviva Canada, which was generally restrictive with respect to broader-use definitions of what constitutes an economic loss. Arbitrator Alves noted the following:
In Simser and Aviva Canada Inc., (FSCO A11-004610, January 16, 2013), the hearing arbitrator adopted the definition of economic loss from Black’s Law Dictionary and held that economic loss as applied in the Schedule must relate to some form of financial or monetary loss. This conclusion was not disturbed on appeal.
At the Simser hearing, the applicant had significant evidentiary difficulties in establishing the various losses claimed. For example, the hearing arbitrator described the evidence adduced at the hearing as vague and lacking in detail, lacking documentary evidence from the service provider’s employer, despite numerous requests from the insurer, and that there was a failure to link the expense or loss to the attendant care claimed. With respect to some of the out-of-pocket expenses, the arbitrator held that they were de minimis and therefore did not amount to economic loss.
I am not persuaded that the expenditure of $5,048 in this case is de minimis. The Court of Appeal in [Gore v.] Henry rejected any de minimis requirement for an expense to qualify as economic loss. On this point, on appeal, Delegate Blackman noted that the hearing arbitrator in Simser adopted the de minimis approach taken by the trial judge in Henry v. Gore Mutual. However, the arbitrator did not have the benefit of the Court of Appeal’s decision rejecting the de minimis approach at the time he issued his decision.
What is clear from these cases is that a loss of wages or a loss of income will qualify as an economic loss. I am not persuaded by the Insurer’s submission in this case, that the term economic loss should be read restrictively so that only those losses will qualify. Had the legislature intended to restrict economic loss to wage loss or loss of income, it could have so stated. Insurance coverage provisions are to be interpreted broadly, while coverage exclusions or restrictions are to be construed narrowly in favour of the insured. In my view, the Applicant has demonstrated that funds were expended by her friend and service provider in the amount of $5,048 to purchase bus tickets and/or passes in order for her to travel to the Applicant’s home. The purchases involved the expenditure of funds by the service provider, were a monetary loss to her and therefore qualify as an economic loss within the meaning of the Schedule.
The decision can be read in its entirety by clicking on the link below.
June 2, 2014
Balance needed between interests of drivers, insurers
While the future of a bill meant to address pressing concerns in the auto insurance system is unknown, the issues persist, and drivers are still in need of cost-saving solutions, says Toronto personal injury lawyer Peter Cho.
The Liberal government’s Bill 171, the Fighting Fraud and Reducing Automobile Insurance Rates Act, passed second reading in April, and proposed making several changes to the auto insurance dispute resolution system. The bill is now effectively dead as the legislature has dissolved for the June 12 election.
Cho, associate with Smitiuch Injury Law, said he’s glad to see Bill 171 go by the wayside, but as long as auto insurance rates remain an issue in Ontario, another version of the bill is likely to be presented in the near future.
Read the complete article at: Advocatedaily.com
Contact Peter Cho for further information.
Why Ontario drivers pay the highest insurance premiums in Canada
Special to The Globe and Mail
The Fraser Institute’s landmark 2011 study on public-versus-private delivery of auto insurance in Canada concluded that Ontario’s private-sector insurance regimen enjoyed the questionable distinction of being the most expensive in the country – a conclusion even more damning because the report’s major takeaway was the overall superiority of the private system in other parts of Canada.
Read the complete article in the Globe and Mail.