- It is anticipated that FSCO will release a new Dispute Resolution Practice Code in March 2001.

- Grant Dow will be speaking at the Practical Strategies for Advocates, a symposium hosted by the Advocates' Society on February 9, 2001 at the Westin Harbour Castle. His topic is "LECs Under Bill 164".

- The Supreme Court of Canada heard the appeal in Whiten v. Pilot on December 14th, 2000 and reserved its decision. The Supreme Court's guidance with respect to punitive damages is needed to set guidelines in this area. Although the Ontario Court of Appeal reduced the jury's award of $1,000,000 to $100,000 in Whiten, subsequent punitive damages awards have exceeded this amount. For example, in Clarfield v. Crown Life Insurance Co. [2000] O.J. No. 4074, O.S.C. the court awarded $200,000 in punitive damages to the plaintiff in an action concerning disability insurance. In making the award, the judge stated: My impression from the testimony of Crown Life's witnesses was that these matters were not rare. However, in these circumstances, I propose to assess the quantum of punitive damages based solely on the fact that the insurer's deleterious conduct in this case was as a result of its staff's established practices, and that a disincentive to the continuation of those practices is necessary. In addition to all the factors discussed above I have considered that precedents in Canadian jurisprudence are sparse. I have concluded that an award of $200,000 in punitive damages is appropriate. This quantum is larger than in Whiten and is in rough proportion to the compensatory damages awarded. If anything it is out of balance with the defendant's size and dividends of its deleterious conduct. Viewed in strictly economic terms, an award of this size is grossly insufficient to deter the defendant and other large insurer from similar conduct. It is conceivable that insurer could save that amount by refusing just one legitimate claim of a high-income earner. I see some advantage to an incremental evolution of punitive damage awards, and I believe the ignominy of having its conduct denounced by the Court will have some deterrent effect on the defendant and some impact on its business interests. (p. 19)

In Karshe, A99-000855, December 15, 2000, the applicant taxi driver was attacked by a passenger. The arbitrator held that the applicant was not involved in an "accident" as defined in s. 2(1) of the Schedule. The Arbitrator agreed with the insurer's position that the S.A.B.S. - 1996 has a more restrictive definition of "accident". He followed the findings of Arbitrator Novick in Petrosoniak and Security National Company, A98-000198, November 2, 1998 that the decision of the Supreme Court of Canada in Amos v. Insurance Corporation of British Columbia, [1995] 3 S.C.R. 405 was of limited value in considering the definition of "accident" under the S.A.B.S - 1996. He stated:

It can be said that use or operation of Mr. Karshe's taxi-cab provided the opportunity, the motive, the atmosphere of hostility and/or the emotional impetus for a train of events culminating in an injury being sustained and was, therefore, a predisposing, secondary or indirect cause of Mr. Karshe's impairment. However, with legislative narrowing of the scope of coverage, that is not sufficient. I find that Mr. Karshe's injuries were only sustained upon the intervention of a force starting and working actively from a new and independent source other than an automobile, namely brass knuckles being applied by passenger #1 against the left side of Mr. Karshe's face. In the reality of Mr. Karshe's case, the use or operation of his taxi-cab was not the efficient, predominate or direct cause of his impairment (p. 16).

In Al-Obaidi, A99-000889, December 15, 2000, the applicant was in motor vehicle accidents on November 11, 1998 and January 20, 1999. Allstate was the no fault benefits provider for both accident. Following the first accident, Mrs. Al-Obaidi received physiotherapy treatment at an OHIP funded clinic. After the second accident, she attended at a private clinic. Allstate sought repayment of $3,260 for the physiotherapy treatment at the second clinic, arguing that it was unreasonable for the applicant to have changed treatment providers following the second accident. The applicant submitted that the arbitrator did not have jurisdiction to hear the repayment issue. She submitted that the repayment claim was best heard in court because her claims against the health provider could be joined into those proceedings. The arbitrator, however, allowed Allstate's claim for repayment of the physiotherapy treatment in the amount of $3,260 to be included in the arbitration proceedings. The arbitrator noted that s. 280(1) of the Insurance Act permits either the insured or insurer to file for mediation of the dispute, although only the insured person can initiate claims in the arbitration system. Section 282(3) of the Insurance Act, in turn, specifically provides that the arbitrator shall determine all issues in dispute, whether raised by the insured person or by the insurer. The arbitrator found that Allstate's repayment claim naturally and consequentially flowed from the applicant's treatment issues originally raised at FSCO, and that it was properly the subject of joinder into the proceeding.

In Faerber-MacMillan, A99-000201, November 27, 2000, the seventeen year old applicant became a quadriplegic on March 14, 1995 as a result of a motor vehicle accident. A dispute arose as to whether s. 47(5) of the Schedule, which provides for Attendant Care expenses in the amount of $6,000 per month applied to his case or whether it fell under s. 47(6) which allows for a maximum of $10,000 per month. The Applicant argued that section 47(6) applied to his situation. He submitted that in addition to suffering a physical spinal cord injury, he also suffered a psychological "injury as a result of the accident" that by itself would have required attendant care services. A clinical psychologist Dr. Alina Kaminska, had found that the applicant suffered from a "major depressive disorder". She stated that depression reduces one's ability to process information and respond to it (p. 10). The arbitrator accepted that the applicant suffered from a major depressive disorder. He then turned to consider the question of whether the applicant's depression was the consequence of a separate "injury" within the meaning of s. 47(6) (p. 13). He also asked whether a motor vehicle accident could cause separate physical and psychological injuries to one insured person who is involved. He made the following finding:

In answering this question in the affirmative, I note that the definition of insured person does not state that a person who is involved in an accident can only sustain physical, not psychological, injuries. The definition merely states that in order to recognize a psychological injury to a person who is not involved in the accident, a person who is involved in the accident must have suffered a physical injury. It is clear that a person not involved in the accident can only suffer a psychological injury as a result but the Schedule identifies no reason why a person who is involved in the accident cannot suffer both physical and psychological injuries as a result (p.15)

The arbitrator also found that the evidence established that the psychological impairment the Applicant sustained as a result of the accident limited his capacity to use even his remaining abilities, that is, those of his abilities which were not directly impaired by his cervical spinal cord injuries (p.16).

In considering section 47(6) which allows a maximum payment of $10,000.00 for attendant care benefits, the arbitrator stated:

In my opinion, the words "by itself" in section 47(6) should not be interpreted to mean that Mr. Faerber-MacMillan must establish that he would have required attendant care services if he had only suffered the psychological injury, "by itself". I agree with counsel for the Insurer that, on the facts of this case, Mr. Faerber-MacMillan could not establish that he would have required attendant care services as a result of a psychological injury had he not also suffered a cervical spinal cord injury. But, despite the use of the conditional verb tense "would have required" in section 47(6), its application does not, in my opinion, involve a notional denial of the existence of Mr. Faerber-MacMillan's cervical spinal cord injury or of the fact that this latter injury requires attendant care services. Rather, I interpret the words "by itself" in section 47(6) to mean that Mr. Faerber-MacMillan must establish that his psychological injury requires additional and separate attendant care services, over and above those required by his cervical spinal cord injury. In my view, it is these additional and separate attendant care services, required by an additional and separate injury, which the higher maximum in section 47(6) is intended to accommodate (p.18).

Ultimately, the arbitrator concluded that attendant care benefits were payable at the monthly rate of $6,552.87, the monthly maximum payable under s. 47(5) as indexed under s. 80. In Da Rosa, A99-000110, December 20, 2000, the applicant suffered facial fractures and injuries to her right eye, a ruptured bladder, fractured pelvis, a fractured sternum, injuries to her right shoulder, a dislocated knee and a severe brain injury which resulted in right hemiparesis and significant cognitive impairment. The accident occurred on January 21, 1995. The insurer was ordered to pay the applicant $13,063.99 in supplementary medical expenses for chronic care co-payments and $39,303.66 in attendant care benefits for long-term care accommodation fees pursuant to s. 36(1)(a) and 47(1)(b), respectively, of the Schedule. Interest was also ordered to be paid on the amounts. In addition, amounts were awarded for various supplementary medical and rehabilitation benefits. The insurer was also ordered to pay the applicant for the services of a case manager of her choice under s. 40(5) of the Schedule. Finally, the insurer was also ordered to pay a special award of $10,000 inclusive of interest, because it unreasonably withheld chronic care co-payments and long-term accommodation fees from the applicant. The arbitrator reviewed correspondence between the insurer and Mrs. Da Rosa's representatives and found that the insurer had demonstrated a continuing failure to inform Mrs. Da Rosa's representatives about its obligations to pay for hospital services according to the provisions of the Schedule.