Motor Vehicle Accident
(Feb 2023)
What’s in a word? A lot – especially if a limitation period is at stake.
Per very recent C.A. decision dealing with an alleged missed 2-year deadline to apply to the LAT for a denied IRB:
[1] …On December 30, 2015, Allstate notified Mr. Varriano that his IRBs would stop… because Mr. Varriano had returned to full-time work…
[2] On September 28, 2018, Mr. Varriano filed an application before the Licence Appeal Tribunal (“LAT”)…Allstate took the position that Mr. Varriano’s application was time-barred…The LAT adjudicator…found that Allstate’s Benefits Letter met the legislative requirements…and accordingly, the limitation period was triggered on December 30, 2015.
[3] The Divisional Court overturned…held that s. 37(4) required Allstate to provide medical reasons in the Benefits Letter…
[5] …I would allow the appeal. Respectfully, the Divisional Court’s interpretation of s. 37(4) is incorrect…
[10] Under the SABS…
37. (2) An insurer shall not discontinue paying a specified benefit…unless,
…
(e) the insured person has resumed his or her pre-accident employment duties;
[11] …
37. (4) If the insurer determines that an insured person…is no longer entitled to receive a specified benefit on any one or more grounds set out in subsection (2), the insurer shall advise…of its determination and the medical and any other reasons for its determination. [bolding mine]
[17] The Divisional Court…concluded that a plain reading of s. 37(4) supported the interpretation of the word “and” in the phrase “medical and any other reasons” as bearing a conjunctive meaning…
[28] …[However] s. 37(4) states that the insurer may rely on “any one or more grounds set out in [s. 37(2)]” (emphasis added) in terminating benefits. By explicitly including those words…an insurer may rely on a single non-medical reason for termination of benefits…Put differently, interpreting “and” in the joint sense conflicts with the joint and several nature of the grounds for termination.
[31] …s. 37(4) requires provision of the insurer’s actual reasons for determination. If the insurer relies on a medical and a non-medical reason to deny benefits, the insurer must advise the insured person of both. However, if the insurer is relying on a non-medical ground under s. 37(2), the provision requires only that the insurer provide notice of the cancellation of the benefits and to provide the insured with the non-medical reason for that determination.
[32] …In Smith, Gonthier J. concluded that insurance notice provisions serve a consumer protection purpose by requiring insurers to completely and clearly provide insured persons with the information they need…to enable them to challenge a refusal…
[34] …requiring the addition of a line stating, “there are no medical reasons for this denial”, would not further assist an insured in deciding whether to challenge the denial of benefits.
Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78 (CanLII), <https://canlii.ca/t/jvbhh>
(Mar 2022)
Under which auto policy must a corporate executive seek her/his AB’s, where insured under both personal and corporate policies? Per a recent C.A. decision:
[31] …if a person is a named insured under a policy, the person must seek recourse for SABS under that policy: s. 268(5) of the Act.
[32] …However, subject to s. 268(5.2), if a person is a named insured under more than one policy…the person may choose the insurer against which the person will seek recourse…
[33] …s. 3(7)(f) of the SABS Schedule expands the notion of a named insured…
3(7)(f) an individual who is living and ordinarily present in Ontario is deemed to be the named insured under the policy insuring an automobile at the time of an accident if, at the time of the accident,
(i)the insured automobile is being made available for the individual’s regular use by a corporation…
[37] The arbitrator’s decision that Mr. Ekstein was a deemed named insured under the Continental policy was premised on a finding that Mr. Ekstein met the “regular use” requirement set out in s. 3(7)(f) of the SABS Schedule.
[38] …Mr. Ekstein’s name appeared on a schedule of drivers attached to the Continental fleet policy. However, …he had never driven any of the corporate vehicles…Although Mr. Ekstein was involved in the day-to-day operations of the business, others were responsible for day-to-day decision-making concerning the fleet of vehicles…Nonetheless, Mr. Ekstein testified that he had access to the keys for the vehicle fleet…and had the power to take one of the lighter trucks out 24/7 if he chose to do so. He “called the shots”.
[40] Taking account of those decisions the arbitrator concluded that Mr. Ekstein had sufficient authority and control over the vehicles to meet the requisite standard…
[45] The SCAJ found that the arbitrator failed to consider Mr. Ekstein’s evidence that he never used a company vehicle prior to or at the time of the accident, or that a company vehicle was not being made available to him at the time of the accident…
[55] Belobaba J. made this point in ACE INA Insurance v. Co-operators General Insurance Company (2009), 2009 CanLII 13625 (ONSC), 79 M.V.R. (5th) 312 (Ont. S.C.), at paras. 25-26, when he compared the language of the current section…to the language of the comparable section under the same heading in the immediately preceding insurance regime:
Section 66(1) [now s. 3(7)(f)]: if, at the time of the accident, the insured automobile is being made available for the individual’s regular use by a corporation…
Former section…if an insured automobile is made available for the regular use of an individual…
[61] Like the SCAJ, I fail to see how availability for regular use can be imputed in the absence of any use up to the point of the accident.
Continental Casualty Company v. Chubb Insurance Company of Canada, 2022 ONCA 188 (CanLII), <https://canlii.ca/t/jmxww>
(Jan 2020)
Very recent LAT Reconsideration decision emphasizes stringency of criteria. Per excerpts:
……
[6] ..Rule 18.2…A request…will not be granted unless one of the following criteria are met:
(a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
(b) ..made an error of law or fact such that…would likely have reached a different result had the error not been made;
(c) …heard false evidence from a party or witness…discovered only after the hearing and likely affected the result;
(d) …evidence that was not before the Tribunal…could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result…
[10] …It is not through the reconsideration process to re-weigh evidence that has already been properly considered by the Tribunal…..
S.G. v. Wawanesa Mutual Insurance Company, 2020 CanLII 378 (ON LAT), http://canlii.ca/t/j4gh6
Judge in an MVA jury trial, held by C.A. to have properly discharged her various functions. Per following excerpts:
[10] …judge clearly and carefully charged the jury that…necessary to prove that they would not have suffered the injuries claimed but for the accident…the “balance of probabilities” standard…that a different standard of proof..- a “real and substantial possibility” – applies to claims for damages in the future…
[13] …ruling permitting two psychiatrists to testify for the respondent…fulfilled her gatekeeper function…she considered the quantum of damages…alleged psychological issues were a significant aspect of the claim, and the balance in the number of experts called by each side…
[14] …an opinion contained in a medical record may be admissible as a medical report if the report is signed by the practitioner and leave of the court is obtained: Evidence Act, s. 52(2)…correctly exercised her gatekeeper function…reasonably concluded that they were not admissible in the absence of attendance and testimony from the practitioner.
[15] …the jury charge was comprehensive, fair, and well-balanced…a clear and sufficient direction to the jury that they, and not the judge, were the fact-finders:…
Gopie v. Ramcharran, 2019 ONCA 402 (CanLII), http://canlii.ca/t/j0bkp
(Apr 2019)
MVA action. In terms of damages exposure, both the driver and owner clearly enjoy the benefits of ‘protected defendants’ under the Insurance Act.
But what if the owner is also the driver’s employer? Can the plaintiff get around the Insurance Act limitations, by relying on the doctrine of vicarious liability?
The answer is a resounding no. As confirmed in a very recent Divisional Court decision:
[15] …subsection 267.5(10.1) added to the Insurance Act…provides as follows:
Despite any provision of this Part, a person vicariously liable for the fault or negligence of a protected defendant is not, in respect of the person’s vicarious liability, liable for any amount greater than the amount of damages for which the protected defendant is liable…
[17] I agree with the trial judge. In fact, as pointed out by him, this seems to be the conclusion reached in Vollick had s. 267.5(10.1) been in effect at the time of the accident the court was then considering…
[18] Indeed, this is the only sensible and rational interpretation of this section…
Hinds v. Metrolinx, 2019 ONSC 2318 (CanLII), http://canlii.ca/t/hzqb0
(Mar 2019)
The following remarks by the trial judge in this chronic pain MVA case, illustrate what are key factors in evaluating ‘threshold’ in a case such as this:
[95] I also consider it important to view the evidence as a whole and avoid placing too much weight on isolated instances of alleged inconsistencies in determining the veracity of testimony in a case of this nature. What is more significant is whether the witness has given a consistent history over time about his symptoms, his activities and the impact of the injury on his life. This is what Mr. St. Marthe did…
[115] I also find it is not in his nature to complain to others when he is in pain or to shirk from doing things because they might cause him pain. This is why he did not go to his employers until the pain became intolerable. They were aware he was having problems without any complaint by him. When the therapy brought relief from pain, he told the healthcare professionals but sought their help again when it persisted. Drs. Mussett, Beseman and Bednar considered him a reliable historian whose reported symptoms were consistent with the injury he suffered…
St. Marthe v. O’Connor, 2019 ONSC 1585 (CanLII), http://canlii.ca/t/hxxlh
(Apr 2019)
LAT ruling. TBI victim makes CAT:
[10] In order to be determined CAT[2] under the Schedule, K.S. must prove, on a balance of probabilities, that the impairments he suffered as a result of the accident have resulted in at least one Class 4 (Marked) Impairment in any of the four domains outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment[3] (the “Guides”) due to a mental or behavioural disorder. I find, on a balance of probabilities, that K.S. has sustained at least one Marked Impairment due to mental or behavioural disorders he sustained as a result of the accident. Accordingly, I find that he has sustained a catastrophic impairment as defined by the Schedule and is therefore entitled to the extended policy limits. …
[13] …I find that K.S.’s lack of emotional and psychological regulation, which has resulted in irregular moods and behaviour, as well as private and public outbursts, can be traced directly to the traumatic brain injury he suffered as a result of the accident and the trauma and stress that ensued.
18-000169 v TD Home and Auto Insurance Company, 2019 CanLII 22189 (ON LAT), http://canlii.ca/t/hz9d6