In Liu v. Lombard General Insurance Company of Canada, A01-0001429, October 4, 2002, the insured was pistol whipped by armed assailants, while travelling on a bus bound for Casino Rama in Orillia. The arbitrator found that Mr. Liu had been injured as a result of an accident as defined in the Schedule. Arbitrator Baltman found the case before her to be significantly different from Chisholm v. Liberty Mutual Group [2002] O.J. 3135, Ont. C.A., in that the use of the vehicle played a greater role in the injuries suffered by the applicant:

In sum, the bus was a critical part of a methodically planned and well executed robbery; the assailants, well disguised, strategically timed their entry onto the bus; they equipped themselves with firearms to ensure maximum control of the bus; they isolated the bus and imprisoned its passengers by sealing the doors, ordering the driver along a predetermined route and forbidding him to respond to his phone;

They robbed and beat the occupants while they were imprisoned within the moving bus; they used the bus to escape detection and deliver them to their getaway point. Under these circumstances, it cannot be said that the vehicle's involvement was in anyway peripheral or merely, as in other cases, 'the site, opportunity or motive'. Here it effectively became a prison, a weapon and a getaway vehicle, and thus played a central role in the robbery that led to Mr. Liu's injuries (p.9).

In Belous v. Scottish and York Insurance Company Limited, A01-000132, October 2, 2002, it was held that the insurer was not liable to pay death and funeral benefits. The applicants were the estranged wife and daughters of Sergiy Belous. On July 20, 2000, Mr. Belous had walked across five lanes of Hwy 7 into the side of a moving truck, while intoxicated. As a result of that accident he injured his foot and was taken to York Central Hospital. He was discharged, but developed complications and sought treatment again at the hospital's emergency department approximately thirty hours after the accident.

Following an argument with his wife, Mr. Belous went to stay at a friend's apartment. His naked body was found on the kitchen floor of the apartment on August 29, 2000. There was a great deal of blood in the apartment and some furniture was overturned. The arbitrator was asked to determine whether Mr. Belous died as a result of the accident on July 20, 2000 and whether the applicants were entitled to claim death benefits as dependants.

Testimony was heard from a forensic identification officer who investigated the death, a coroner and a pathologist. Based on the evidence presented, the arbitrator concluded that Mr. Belous fell in the apartment because he was impaired by alcohol. Subsequently, he cut his head and bled to death because his impairment prevented him from stopping the bleeding or calling for help (p.15). The arbitrator concluded that Mr. Belous' injured foot did not materially or significantly contribute to his fall or his death. As he did not die as a result of a motor vehicle accident, it was held that his spouse and children were not entitled to death or funeral benefits under s. 25 and s. 26 of the Schedule.

In Iankilevitch v. CGU Insurance Company of Canada, A01-000942, October 4, 2002, it was held that the applicant was disentitled to income replacement benefits beyond $185.00 per week from August 20, 2001 to June 11, 2002. At the time of the accident, the applicant indicated that she was self-employed as a computer programmer with SIAN Computer Consulting. The insurer retained an accounting firm, which sent the applicant several letters requesting information which would enable it to calculate her IRBs. It was only in the week before the hearing that the applicant produced her personal 2000 tax assessment and SIAN's corporate tax information for the first time. The arbitrator found that the applicant's actions demanded an explanation, but none was forthcoming. He commented:

As noted earlier, the question under s. 31 and 33 of the Schedule is whether the applicant attempted to facilitate the insurer's investigation of the quantum of her benefits. In the appeal decision in Kassa, the Director's Delegate suggested that the penalty imposed under s. 33 should be limited to instances of misconduct, in which the insurer can demonstrate that the insured person intentionally withheld information in an attempt to interfere with a legitimate investigation. Kassa suggests that the insurer bears the onus of showing misconduct on the part of the insured. However, I find that s. 31(1), which Kassa did not consider, places the onus on the insured to provide a reasonable explanation for failing to provide reasonably required information under s. 33. Unlike the situation in Kassa, the applicant in the present case did not testify and provided no evidence as to why she did not seek or provide the requested information. To that extent, I do not find the onus discussed in Kassa applicable to the case at hand. I find that, in light of s. 31(1), and particularly where, as here, the insured provides no explanation for failing to comply with the insurer's requests, the insurer need only show that its inquires were reasonably required and that the insured failed to respond adequately to them (p.25).

The arbitrator found that the appropriate date from which to begin the disentitlement to IRBs was August 20, 2001, when the insurer formally notified the applicant of its position that she was in breach of s. 33 of the Schedule, in its Response to the Application for Arbitration.

 

On December 13, 2001, Mr. Suliman was injured in a motor vehicle accident. He received treatment at Centre City Health Recovery Inc. In February 2002, he applied for mediation on a $1,700.00 January 16, 2002 treatment plan (p.2). Another Application for Mediation was made in June 2002, with respect to April 11, 2002 treatment plans ($1,200.00 for chiropractic treatment and $1,1050.00 for physiotherapy) (p.2). In a letter dated September 20, 2002, Economical advised that Centre City had submitted 14 treatment plans, all dated between January and June 2002 (p.2). The outstanding account that was in dispute amounted to $11,637.97. At a pre-hearing discussion, Arbitrator Blackman received undertaking that he would receive, by September 12, 2002, copies of all of the treatment plans as well as any Mediators' Reports. Reports of Mediator for March 27 and August 20, 2002 were produced, but only one treatment plan (January 16, 2002) was produced.

Section 282(3) of the Insurance Act states: "the arbitrator shall determine all issues in dispute, whether the issues are raised by the insured person or the insurer". Arbitrator Baltman in Nand v. State Farm Mutual Insurance Company, A96-001835, July 28, 1997, found that the change in the wording of the section signalled "a clear movement toward an inclusive approach to the hearing" in order to meet the public policy goal of "speedy and effective dispute resolution" (p.4). The applicants argued that s. 281(1) of the Insurance Act allows an insured person an unrestricted right to refer certain issues to one arbitration proceeding and to bring other concurrent issues, even if related, to a subsequent arbitration proceeding or to a court of competent jurisdiction (p.5). The arbitrator rejected this approach and noted that the purpose of mediation is to facilitate dispute resolution and not to impede it. With respect to the conduct of the agents for the applicant, he commented:

The representatives' actions, on their face, suggested a deliberate attempt to harass this insurer by the implicit threat of multiple proceedings being brought at various times in various forms on intertwined, if not identical, issues. I am further concerned as to whether these representatives, hiding behind the named applicant, seek to advance the broader financial interests of Centre City (of which Mr. Vaskevich as Clinical Director) at the possible personal jeopardy of their client, Mr. Suliman (p.8).

The arbitrator found in the course of the hearing that Mr. Suliman was surprised that he might be personally liable for some of the insurer's legal expenses. Arbitrator Renahan then ordered the agents to prepare and return by September 20, 2002, a signed acknowledgement, in accordance with the appeal decision in Glinka v. Dufferin Mutual Insurance Company, P01-00002, March 7, 2001, that (subject to evidence to the contrary regarding the status of the representatives) Messrs. Dewitt, Vaskevich and Simikhaev:

• are not lawyers;
• are not members of the Law Society of Upper Canada and are not subject to the supervision or discipline of the professional body;
• are not required to carry insurance as legal agents or representatives;
• have advised Mr. Suliman that he is personally and potentially liable to pay a portion of the insurer's legal expenses.
  

Furthermore, the arbitrator requested that written submissions be made with respect to whether the applicant's representatives should be excluded from the proceeding in accordance with Rule 9.9 of the Code and s. 23(3) of the Statutory Powers Procedure Act. It was further ordered that the mediation team leader be contacted by Economical and that Economical would provide all documentation necessary to fast track a mediation of any further Centre City treatment plans regarding the applicant with respect to the accident of December 13, 2001. In the meantime, the arbitration hearing in the matter was stayed, pending a resumption of the pre-hearing discussion to finalize the identification of all issues in dispute. (Suliman v. Economical Mutual Insurance Company, A02-000596, October 16, 2002).