Death benefits were denied to a widow whose husband suffered a heart attack while driving in Waters and Royal and Sunalliance Insurance Company of Canada, A00-001143, October 18, 2001. The arbitrator followed the reasoning in Petrosoniak and Security National Insurance Company A98-000198, November 2, 1998 which held that a series of events can be the direct cause of an incident, as long as there is no intervening force or act (p.7). With Mr. Waters, however, the arbitrator found that the heart attack was a "new and independent source", such that his death did not fall within the definition of "accident" found in s.2(1) of the Schedule.

In Stargratt and Zurich Insurance Company A99-000521, October 4, 2001, the applicant claimed for caregiver expenses, attendant care expenses and a medical benefit for physiotherapy treatment. The insurer took the position that caregiving services were not compensable as the applicant had not "incurred" caregiving expenses. It was also argued that Ms. Stargratt’s pre-existing disability was the cause of any post-accident problems. She suffered from "dystonia", a tremor in both hands and her head, which had developed following radiation and chemotherapy treatment for Hodgkin’s disease. Despite this problem, however, Ms. Stargratt had completed a community college travel course, married and had a daughter that she cared for at home prior to the accident. The arbitrator awarded caregiver expenses, attendant care expenses and a medical benefit for physiotherapy. It was held that the use of the word "incur" in s. 13 (2) does not restrict caregiving claims to actual out of pocket expenses. The Stargratts kept a record of the hours and duration of services provided by the family, but it was not broken down into individual tasks in keeping with the divisions found in the Schedule. Nonetheless, the arbitrator found that Ms. Stargratt was entitled to receive forty hours of caregiving and forty hours of attendant care services per week. The caregiver services were to be compensated at $7.00 per hour. A special award of 50% of the amounts owing was awarded. The arbitrator found that Zurich had failed to consider Ms. Stargratt’s unusual and vulnerable state at the time of the accident, and hardened its position even as more evidence became available.

 

In Shubrook and Lombard General Insurance Co. of Canada, A01-000010, October 11, 2001 the insurer objected to the claim on the basis that the applicant had not notified it of his intention to apply for benefits within thirty days after the circumstances arose that gave rise to his entitlement to benefits, in accordance with s.32(1). For over two years, Mr. Shubrook had received workers’ compensation benefits, following an accident on November 27, 1997. He withdrew his election on March 2000 and filed a tort claim in which he sought general damages for pain and suffering as well as damages for loss of future economic earning capacity. Arbitrator Novick held that the applicant did not breach the requirements of s.32(1) of the Schedule, or, if he did, he had a "reasonable explanation" for doing so pursuant to s.32(1). It was also held that Mr. Shubrook was permitted to proceed to arbitration as the election he had made under s. 10 of the Workers’ Compensation Act was not made primarily for the purpose of claiming benefits under the Schedule. It was also noted that s.59(2) does not refer to any time limit within which an election has to be made (p.10). (The Workers’ Compensation Board became the Workplace Safety and Insurance Board when the Workplace Safety and Insurance Act came into force on January 1, 1998. However, in the decision, reference is made to "WCB" or "the Board". )

 

In Griscti and Non-Marine Underwriters, Mbrs. Of Lloyd’s , A01-000471, October 5, 2001, the applicant sought copies of all adjusters’ notes in connection with the matter, including those maintained electronically; all policy manuals in the possession, power or control of Lloyd’s instructing adjusters on how to handle the claim; any documentation dealing with reserves; and any legal opinion obtained by Lloyd’s in connection with adjusting the claim. Arbitrator Renahan stated that the guiding principle in exercising the discretion to make a production order is relevance and reasonableness (p. 2). He ordered Lloyd’s to produce, subject to any privilege, a copy of all adjusters’ notes up to the date that Ms. Griscti filed her application for mediation. Lloyd’s was not required to produce policy manuals documentation dealing with reserves or any legal opinion. With respect to the issue of reserve information, the arbitrator commented:

Samoila v. Prudential of American General Insurance Company (Canada), [2000] O.J. No. 2746, July 14, 2000, recognizes that reserve information is generally confidential. I believe the reason reserve information should remain confidential is similar to the public policy considerations which protect confidential settlement discussions from disclosure. ... In my view, reserve information is confidential and should generally be protected from disclosure to promote settlement and business efficiency (p.5).

It was noted that at a later date an arbitrator could require the production of reserve information or policy manuals if it was necessary to hold a second bifurcated hearing to determine entitlement to or the amount of a potential special award.

 

In Singh and Commercial Union Assurance Company, A99-001160, September 11, 2001 the applicant was awarded $61,829.52 in a special award. The insurer had argued that the arbitrator did not have jurisdiction to hear the issue of a special award as the income replacement issue was settled prior to the hearing. It relied on decisions in Grozdanovsky and Wawanesa, A99-000289, April 7, 2000 and Bianca and General Accident, A-006109, May 5, 1995 in support of this argument. The arbitrator, however, followed the reasons of Director’s Delegate Draper in Prudential and Chafe-Moote P99-00044, September 8, 2000, in finding that a special award is payable if the insurer unreasonably withheld or delayed payments. Grozdanovsky and Bianca were distinguished as the applicants were ultimately unsuccessful in their claims for benefits.

Ms. Singh’s husband had been badly injured in an industrial accident in 1992, leaving her as the sole financial supporter of the family, which included three children. At the time of her motor vehicle accident on June 28, 1997, she was employed as a health care aide at a nursing home and also worked on a part-time basis at a fabric store. Significant medial evidence stated that Ms. Singh was suffering from depression. Despite the medical reports supporting her disability, however, Commercial Union did not re-evaluate its position or reinstate her income replacement benefit until November 2000. Given that benefits were withheld for three years and the family suffered great hardship as a result, the arbitrator did not find it to be a significant mitigating factor that the benefits were paid prior to the arbitration hearing. The family had fallen in to debt and had to borrow money from relatives and friends. Their mortgage and property taxes fell into arrears and they were required to use food banks (p.45). In addition, the family’s eldest son, a high school student, had to obtain employment to help support the family (p.45). Eventually he was admitted to a psychiatric facility for depression in the fall of 2000 and dropped out of high school. In the circumstances, the arbitrator found that Commercial Union’s behaviour in terminating and withholding Mrs. Singh’s income replacement benefits amounted to flagrant misconduct (p.46).