Section 2 - "Accident"

In Chisolm v. Liberty Mutual Group[2001] O.J. No. 3294, O.S.C. the insurer moved for an order pursuant to Rule 21 of the Rules of Civil Procedure for the determination of a question of law, namely whether the plaintiff was involved in an "accident" as defined in s.2(1) of the SABS - 1996. The plaintiff was the victim of a drive-by shooting while driving his car on April 3, 1999. He applied for accident benefits from Liberty Mutual on the basis that he had sustained serious and permanent personal injuries. The judge held that the plaintiff was not involved in an "accident" as defined in s.2(1) and dismissed the case without costs. Judge Chapnik found that the definition of "accident" was narrowed in Bill 59 and requires that the use or operation of the vehicle must directly cause the impairment. The Judge referred to Petronsoniak and Security National Insurance Company, [1998], O.I.C.D. No. 183, which held that "direct cause" is "the active, efficient cause that sets in motion a chain of events which brings about a result, without intervention of any force started and working actively from a new and independent source". The court also referred to Zurich Insurance Company and Lenti, (appeal) P98-0030, December 18, 1998, in which it was found that a motorist who was injured when a bomb was detonated under his vehicle was not injured in an "accident" within the meaning of the Schedule.

In McDonald and Guarantee Company of North America, A01-000399, October 30, 2001, the exclusionary provisions under sections 30(4) and (5) of the Schedule were considered. Mr. McDonald was in an intoxicated state in the parking lot of a hotel at approximately 2:30 am on June 6, 1998. He proceeded to get into a dispute with a woman. A gentleman, Mr. Staples, stepped between them, telling Mr. McDonald that if he had a problem to deal with him rather than the lady. Mr. McDonald promptly assaulted Mr. Staples. Mr. Staples attempted to get into the passenger side of a pick-up truck while Mr. McDonald continued to grab at him. The pick-up driver told Mr. McDonald to get away from the vehicle and drove away. Mr. McDonald claimed for accident benefits, stating that he suffered a fractured vertebra (L5) as a result of being dragged down the parking lot by the truck.

In deciding that Mr. McDonald was not precluded from receiving income replacement benefits, the arbitrator reviewed s. 30 and made the following findings:

However, the provisions relating to criminal offences were removed from s.30(1) and(2) of the Schedule and now appear in subsections 30(4) and (5). I find it significant that the words ‘the insurer is not required to pay an income replacement benefit’ because of a criminal conviction are never set out in this Schedule, unlike in the earlier Schedules. The rules of statutory interpretation would lead me to conclude that subsections 30(4) and (5) are now the complete code relating to any exclusions for criminal convictions. Any disqualification from payment because of a criminal conviction must be found in those subsections (p.6).

In Erskine and Personal Insurance Company of Canada, A01-000588, November 20, 2001, a face to face pre-hearing was ordered. The arbitrator stated that teleconferences are arranged when face to face meetings are impractical, not merely for the convenience of the parties.

In Erskine and Personal Insurance Company of Canada, A01-000588, November 20, 2001, a face to face pre-hearing was ordered. The arbitrator stated that teleconferences are arranged when face to face meetings are impractical, not merely for the convenience of the parties.

On October 29, 1994, Mr. Kirby was injured in an motor vehicle accident. He commenced a court action against Liberty Mutual for the payment of accident benefits under the SABS - 1994. The matter was settled with the parties executing a release of all claims up to December 1, 1997, on December 11, 1997. An order dismissing the court action was taken out on January 29, 1998.

A lump sum payment of income replacement benefits for the period between October 6, 1994 and December 1, 1997 was paid to Mr. Kirby. Deductions had been made for Canada Pension Plan benefits that had been received between January 1, 1995 and December 1, 1997. Mr. Kirby claimed to be entitled to the CPP payments and applied to FSCO for mediation. The preliminary issue to be determined was whether the Commission had jurisdiction to hear the application, (Kirby and Liberty Mutual Insurance Company, A00-000249, October 31, 2001.)

Mr. Kirby argued that the court was functus after issuing the order dismissing the action. He submitted that the settlement was a contract, separate and apart from the litigation proceedings and that he had a right to access the arbitration system for consideration on an issue involving his entitlement to benefits arising out of the interpretation of that contract. The arbitrator rejected this argument and found that the Commission did not have the jurisdiction to hear the application. The decision followed the reasons of the Court of Appeal in Igbokwe v. H.B. Group Insurance Management Limited and Coseco Insurance Company (July 27, 2001), in which it was found that once a party has exhausted mediation and chosen to litigate, the Rules of Civil Procedure apply and the litigation must be settled in accordance with the Rules, including Rule 49.

In Amoa-Williams and Allstate Insurance Company of Canada, A97-001864, October 24, 2001, the applicants submitted a bill for expenses in the amount of $50,791.66 to Allstate. The amount was disputed and the parties proceeded to an Assessment of Expenses hearing. The applicant’s expenses were assessed at $42,493.76 pursuant to s.46 of the Schedule. The arbitrator found that Mr. Charney, counsel for the applicants, conducted the case in an exemplary and efficient manner, which was to the benefit of all concerned. His docketed time was well within the accepted ratios for senior counsel in a complex case (120.8: 49 hours or just under 2.5:1 of preparation time to hearing time). Case law has held that a ratio of preparation time to hearing time ranging from 1:1 to 4:1 is reasonable (Henri and Allstate Insurance Company of Canada, A-007954, August 8, 1997).

Time spent after the arbitration was reduced for both Mr. Charney and his law clerk because of time spent reviewing and discussing the arbitration award with Target Rehabilitation and "the Clinics" but not the applicants. The arbitrator found that this was not a cost for which either the applicant or Allstate should have to pay. While she did not have authority to order Target to pay Mr. Charney, she found that the principals at Target were responsible to Mr. Charney for this particular item.

In reviewing the disbursement amounts paid to various witnesses, the arbitrator made various reductions. Dr. Morana, a general practitioner employed by Target claimed $2,300.00, but was awarded only $1,000.00. He was awarded $500.00 for preparation in accordance with s.5(4) of the Schedule. It was noted that the wording is clear that this is a one time amount, and does not take into account that preparation may have been necessary on more than one day for the same testimony. Nonetheless, the arbitrator found that he did not have the authority to award more than was provided for in the Schedule. Dr. Morana charged $800.00 for "cancellation of office". This was not permitted as the Schedule does not allow for it. Dr. Morana was awarded $200.00 an hour for the hour and a half he testified and another $200.00 was allowed for time spent waiting.

In Glinka and Dufferin Mutual Insurance Company, P01-00002, November 13, 2001, the applicant appealed a decision in which an award of expenses had been made in favour of the Dufferin Mutual Insurance Company. In addition, Ms. Glinka’s agent, Roland Spiegel, argued that the arbitrator did not have the authority to make any rulings in relation to the matter because of instatutional bias. He sought an adjournment of the appeal until the Persofsky case was heard.

The insurer, requested the Director’s Delegate to exclude Mr. Spiegel (who is not a barrister and solicitor) pursuant to Rule 63.6 of the D. R. P .C. (now Rule 9.9) on the grounds that he was "not competent to properly represent the party or does not understand and comply with the duties and responsibilities of an advocate or advisor" (p.2). In her decision, the arbitrator had remarked that Mr. Spiegel was not "competent to represent clients before this Tribunal" (p.2). The insurer’s motion was dismissed without prejudice to the right to renew it at a later date. The Director’s Delegate was of the opinion that the power to exclude an agent is principally designed to protect the agent’s client, and the integrity of the Tribunal and that in most instances the opposing party’s interests are better addressed by way of cost orders.

The matter was adjourned subject to a number of conditions. Ms. Glinka was ordered to immediately file with the Director a properly completed Application for Intervention in Liberty Mutual Insurance Company and Persofsky (P00-00041), together with all necessary statements of service. She was ordered to forthwith put the Attorneys General on notice of her intention to pursue a constitutional challenge. Ms. Glinka was ordered to pay Dufferin $500.00, payable forthwith and in any event of the cause. Proof of payment was to be filed by November 16, 2001. The expenses were found to be truly "expenses thrown away" in the sense that they could have been avoided if Ms. Glinka had applied for intervener status and made a request for the documents in Persofsky in a timely fashion, or at the very least had advised Dufferin’s counsel of her intentions. The amount was based upon Mr. Grossman submission that the time lost due to the adjournment was in the order of six hours, payable at the legal aid rate. The estimate of time lost was found to be more than reasonable.

After this letter was printed Mr. Spiegel’s Application for Intervention was denied in Liberty Mutual and Persofsky and IBC & OTLA & Ministry of Finance, November 21, 2001, P-00041.

In another case concerning the issue of institutional bias an applicant’s motion for the appointment of an arbitrator under the Arbitration Act. 1991 was denied (Tanzos and State Farm, November 21, 2001, P01-00017). Mr. Spiegel was the applicant’s representative.