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Thursday, August 17, 2017

 
 
 

 
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Posts Tagged ‘Arbitration’

Judge Declares Mediation “Failed” if not Mediated within 60 Days

A decision from the Superior Court of Justice of Ontario was released that declares a mediation by the Financial Services Commission of Ontario (FSCO) failed if it has not been mediated within 60 days of the application being submitted.

In Cornie v. Security National [2012 ONSC 905], which was heard with three other similar cases, Justice J.W. Sloan renders the following decision:

It currently appears that FSCO’s Dispute Resolution Services’ Mediation Unit is functioning without timelines and has been doing so for years.

The SABS [Statutory Accident Benefits] are for the benefit of injured motor vehicle victims and are often required in a timely fashion.

It makes perfect sense that the legislation and the DPRC [Dispute Resolution Practice Code] refer to a 60 day time limit to deal with such disputes.

In contrast to the injured victims, insurance companies are not in a vulnerable position.  While there is nothing to suggest that these insurance companies are in any way responsible for the delay in mediation, there is no evidence that the delay in mediation is of any real consequence to them.

Justice Sloan found the insurance companies’ postion that accident victims must simply wait to be “preposterous” and suggests that FSCO can continue to try to comply with the 60 day period or seek a change and/or ask for some legislative direction to extend the 60 day period in appropriate circumstances.

It remains to be seen if this motion decision will be appealed.

Toronto Star Article on Lengthy Wait Times at FSCO

The Toronto Star has published an article identifying the lengthy wait times at the Financial Services Commission of Ontario (FSCO) for mediations of accident benefits denied by insurance companies.

Our firm’s own Michael Smitiuch was interviewed and quoted in the article.  He identifies the significant hardship that these delays often mean for clients and notes this to be an access to justice issue.

To read the Toronto Star Article, click here.

Ontario Court of Appeal: Desbiens Stands

The Ontario Court of Appeal has reversed the decision of Kusnierz v. Economcial Insurance.

In the Kusnierz v. Economical Insurance decision, Justice Lauwers had determined that it was not permissible to assign percentage ratings in respect of psychological impairments under 2 (1.1)(g) of the Statutory Accident Benefits Schedule (SABS) and combine them with percentage ratings in respect of Kusnierz’s physical impairments under Clause 2(1.1)(f) of the SABS for the purposes of determining whether an individual was catastrophically impaired.

Justice Lawers reviewed the earlier decision of Justice Spiegel in Desbiens v. Mordini but respectfully came to a different conclusion.  Justice Lauwers did not review any of the FSCO decisions on the issue.

This means that both physical and psychological impairment percentage ratings can be combined when determining a catastrophic impairment.

Toronto Star: Fight fraud, but not at the expense of legitimate claimants

The Toronto Star has published an article about the need to find balance between fighting fradulent accident benefits claims and providing necessary goods and services for legitimaely injured clients.

You can read this article by clicking here.

Ontario’s Auditor General Calls for Changes in Auto Insurance Sector

Ontario’s Auditor General released their annual report.  Included in their findings was a question regarding why auto insurers are allowed a 12 percent rate of return when the economy has been so slow.  It also calls on the Financial Services Commission of Ontario to put more resources into elminating the backlog of mediations and arbitrations.

You can read the entire report by clicking here.

Personal Insurance Hit With $28,000.00 Special Award

In a recent arbitration decision through the Financial Services Commission of Ontario (FSCO), The Personal Insurance Company of Canada was subjected to a $28,000.00 special award for unreasonably withholding accident benefits from their insured.

In Hoang and Personal, Arbitrator Denise Ashby found that The Personal unreasonably withheld payment for lost educational expenses and the costs of rehabilitation support worker services for Christopher Hoang, an 11 year-old boy who suffered a catastrophic brain injury from a motor vehicle accident.

Arbitrator Ashby noted that The Personal failed to reasonably assess the medical information available and acted unreasonably in denying his claim.  She noted that The Personal’s reliance on insurer’s examinations, “…in the face of the overwhelmingly consistent opinions and reasoning of the [treatment] Team and the other professionals who followed Christopher, amounts to an unreasonable disregard of the available information relating to the two rehabilitation benefits.”

Economical Insurance To Pay Special Award

A recent Arbitration ruling by the Financial Services Commission of Ontario (FSCO) has ordered Economical Insurance to pay a $6,000.00 special award for unreasonably withholding attendant care benefits from one of their policyholders.  In the matter of Mr. S. and Economical Mutual Insurance Company, the Arbitrator identified that the insurer relied on its own surveillance and not even their own medical experts when determining the amount of the attendant care benefit.

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