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ACCIDENT BENEFITS NEWSLETTER - JULY 2002

- Catherine Zingg

In the budget speech on June 17, 2002, Finance Minister Janet Ecker made the following comments with respect to rising auto insurance rates:

Both here and across North America, rising health care and vehicle repair costs are contributing to higher rates.  We will address pressures on the system and also consider longer term solutions to ensure that automobile insurance remains available and affordable to Ontario citizens.  Ontario Budget Speech pg. 68

Rob Sampson, MPP Mississauga Centre and Ted Chaudleigh, Parliamentary Assistant to the Finance Minister have been asked to complete a consultation that started last year and to report to the legislature with an action plan. 

In Shantz and Dominion of Canada General Insurance Company, A01-001147, May 13, 2002, the applicant intended to park her car in the underground parking lot at her apartment building.    The garage door was located at the bottom of a sloped driveway and the key box was located at the top of the slope.  Ms. Shantz stopped too far away from the key box to be able reach it without stepping out of the car (p.2).  Leaving the motor running, she got out of her car to use the key.  At that point her car began to roll down the driveway and she ran after it in an attempt to regain control of it.  She was unable to do so and the car hit the center wall at the bottom of the driveway.  Ms. Shantz fell and sustained injuries to her face, hands, shoulders, elbows and knees.  Arbitrator Skinner held that Ms. Shantz was injured as a result of an “accident” as defined in s. 2(1) of the Schedule.  In its arguments, the insurer relied on the decisions in Karshe and Non-Marine Underwriters, Members of Llyod’s, A99-000855, December 15, 2000; Sarkisian and Co-operators, A99-000966, January 17, 2001; and Kumar and Coachman, A00-000201, April 27, 2001.  In Karshe and Sarkisian, the applicants were taxi drivers who were attacked by passengers.  In Sarkisian, the applicant was shot to death while working on his car.  In all of these cases, benefits were denied.  The arbitrator, however, found that these cases could be distinguished.  In Ms. Shantz’s case, the use and operation of the automobile gave rise to a chain of events which directly resulted in her injuries.  The facts were closer to those found in Seale and Belair Insurance Company, A01-000635, January 31, 2002 (under appeal).  In that case, a woman slipped on an icy road and broke her arm while pushing her vehicle in a snowstorm. 

In Erskine and Personal Insurance Company, A01-00588, May 23, 2002, the applicant claimed that he was standing in the middle of a bus when it stopped suddenly causing his head to thrust forward and snap back.  He stated that he did not report the incident to the bus driver because he did not feel any pain at the time of the incident.  He further stated that he later was suffering from severe pain, but did not seek medical help as he was in too much pain to travel to the medical clinic.  Mr. Erskine had been employed by the CIBC/The Personal Insurance as an auto claims adjuster.  His employment had ended in October 1999, but the circumstances were not explained at the hearing.  The arbitrator found that the applicant was not involved in an accident as defined in s. 2 and the Application for Arbitration was dismissed.  It was found that he had failed to demonstrate, on a balance of probabilities, that he was involved in an accident on a TTC bus.  It was found that in the circumstances the uncorroborated evidence of an interested party was insufficient to meet the elements of proving the location of the incident.  Moreover, it was found that Mr. Erskine’s testimony was inconsistent on important points.  He testified that he reported to The Personal and to Dr. Nguyen that the incident occurred on a TTC bus.  However, contemporaenous documents created by The Personal and Dr. Nguyen suggested that the incident was reported as having occurred on a subway train. 

In Corcoran and Certas Direct Insurance Company, A01-001572, June 12, 2002, the applicant was injured in an accident on May 23, 1997 and received income replacement benefits of $209.49 a week from May 30, 1997 until August 3, 2001.  Ms. Corcoran turned 65 on August 8, 2001, at which point Certas reduced her weekly IRB to $17.64 pursuant to s. 9 of the Schedule.  The matter went to arbitration and it was argued on Ms. Corcoran’s behalf that it would be unjust for her to be only entitled to a $17.64 weekly IRB, despite sustaining a disability that constituted “a complete inability to engage in any employment for which she was reasonably suited by education training or experience”, being the IRB disability test after 104 weeks of disability.  Ms. Corcoran asserted that she was entitled to a weekly IRB of $185.00 a week under s. 9 of the Schedule.  This interpretation was rejected with the arbitrator finding that Ms. Corcoran’s weekly income replacement benefit after the age 65 was $17.64.  The arbitrator accepted Certas’ submission that the intention of s. 9 is clear, namely it replaces the IRB calculation in subsection 6(1) with a new formula (p.7).  The following comments of the Ontario Court of Appeal in Hope v. Canadian General Insurance, [2002] O.J. No. 1643 was cited with approval:

Ambiguity cannot be determined by examining words in isolation from the text in which they appear.  Nor is ambiguity established by demonstrating that if the legislature had intended a particular meaning, it could have used different language that would have expressed that meaning more clearly.  Not all language that falls short of crystal clarity is properly labelled ambiguous (p.8).

In Jimcaale and TTC Insurance Company Limited, A00-001311, February 27, 2002, the applicant was precluded from receiving benefits because she wilfully misrepresented the material facts with respect to the Application of Benefits.  Ms. Jimcaale claimed to be injured in motor vehicle accidents on April 14 and 19, 2000.  Two applications for accident benefits were completed, each claiming for caregiver benefits.  The application with respect to the first accident was sent to RBC Insurance and it indicated that Ms. Jimcaale was covered as a spouse under a policy that RBC had issued to her husband.  The second application, which was sent to the TTC on June 19, 2000, stated that she was not covered under any policy issued to herself, her spouse, her provider or listing her as a driver.  Although a law clerk with Vickar & Associates had completed the application for accident benefits for Ms. Jimcaale, she was still held to be responsible for the misrepresentation because of the law of agency. 

In Desroches and Economical Mutual Insurance Company, P99-00062, June 7, 2002, the insurer’s appeal was allowed in part.  The arbitrator had found that Mr. Desroches had an residual earning capacity of zero and was entitled to $488.87 for a loss of earning capacity benefit.  On appeal, Director’s Delegate McMahon rescinded the arbitrator’s ruling on this point and replaced it with the ruling that Mr. Desroches residual earning capacity was $145.30 per week.  The Director’s Delegate found that while Mr. Desroches was no longer capable of working at his first choice of employment, namely heavy physical work, this did not automatically translate into a zero REC.  He observed that the end result might have been very different if Ms. Desroches had offered an alternative, or at the very least actively participated in a rehabilitation program designed to return him to a vocation of his choice (p.18).