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Client Involved in an “Accident”: FSCO Arbitrator

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.

DC and Aviva Canada (Redacted) dated July 3 2015

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