ACCIDENT BENEFITS NEWSLETTER - JUNE 2005

Catherine Zingg

ING Insurance Company of Canada and Sohi, P04-00026, May 6, 2005 - In an arbitration decision dated July 15, 2004, ING was ordered to pay for psychological treatment for Mr. Sohi, pursuant to s.14 of the SABS /96 and to pay for examinations under s.24. On May 18, 2001, Mr. Sohi was dragged by a car along a parking lot, suffering an injury to his foot and leg from broken glass. On June 3, 2001, Mr. Sohi attempted suicide by setting himself on fire. The arbitrator rejected the insurer’s submission that the suicide attempt broke the chain of causation between the automobile accident and his later claim for psychological treatment. (p.1)

Director’s Delegate Makepeace allowed the appeal, finding that the reasons in the arbitration decision fell short of the required standard (p.17). The arbitrator had not explained why he preferred Mr. Sohi’s evidence over that of the insurer and therefore it was found that the Arbitration order could not stand. The Director’s Delegate commented:

These reports - the police occurrence report, ambulance call report, Sunnybrook and St. John’s Hospital reports - are, of course, only pieces of the evidentry picture, and the arbitrator may have had good reason for giving little weight to their failure to draw a link between the accident and suicide attempt. However, these four early reports, produced in the ordinary course of business, were an important part of ING’s case, and needed to be considered in the decision. They were not mentioned. In addition, the arbitrator failed to explain why he accepted the opinions of Drs. Pilowsky and Dr. Koepfler on the causation question despite their reliance on reported statements of family members that contradict the more contemporaneous evidence of the police, ambulance and hospital reports, evidence the arbitrator appears to have accepted, given his recognition of Mr. Sohi’s multiple life problems (p.17).

Dwumaah and RBC General Insurance Company, A03-000956, May 3, 2005 - Arbitrator Kominar dismissed the applicant’s claims and ordered that RBC was entitled to its expenses of the arbitration. If the parties were unable to agree with respect to the quantum of expenses, or on the respective liability of Mr. Dwumaah or his representative Dr. Yazdani, then an assessment hearing was to be held within 30 days. In making the decision, Arbitrator Kominar relied upon the evidence of Mr. Seaton, an expert on accident reconstruction. Based on the evidence, it was found that the only reasonable conclusion was that the “incident” as reported by Mr. Dwumaah did not happen. There was no trace evidence found at the scene confirming the collision and much of the physical evidence did not make sense. Arbitrator Kominar remarked that his conclusions on the issue of material misrepresentation were based not only on the inherent plausibility, common sense and clarity of Mr. Seaton’s evidence, but also by the utter absurdity of Mr. Dwumaah’s version of the facts (p.15). It was found that Mr. Dwumaah did not come close to meeting the civil burden of proof. Mr. Dwumaah had testified that he had lost his sight following the accident, which the arbitrator found simply allowed him to conveniently explain away his lack of information about what happened to him in the incongruities in his version of events (p.16). The arbitrator also questioned the competence of Dr. Yazdani to be a representative at the Commission (p.23).

Certas Direct Insurance Company and Gill, P04-00031, April 27, 2005 - Mr. Gill was driving on the 401 on April 9, 2002 when he slid out of his moving car on to the middle lane pavement, with rush hour traffic all about him. He was not hit by the oncoming cars, but his unoccupied vehicle careened through traffic and smashed into the guardrail (p.1.). He then ran to the edge of the highway and catapulted himself over the guardrail down onto Bayview Avenue below (p.2). He sustained multiple broken bones and contusions. In an arbitration Order dated August 26, 2004, it was held that his injuries were the result of an accident with s.2 of the SABS. Director’s Delegate Evans allowed the insurer’s appeal and ordered a new hearing, stating:

It is possible that, in applying the principles noted above, an arbitrator could accept evidence showing that the leap occurred near in time and place to the oncoming vehicles, and the activity was a normal one to take in light of the high risk. In that case, Mr. Gill might pass the dominant feature test. That analysis was not carried out in this case (p.13).

Fu and Kingsway General Insurance Company, A04-000602, April 11, 2005 - Mr. Fu was driving in downtown Toronto and was stopped at an intersection when cement from a nearby construction site fell upon the roof of his car. His head came into contact with his car and he suffered an injury. The insurer argued that the falling cement was an intervening act similar to the bullets in Chisholm v. Liberty Mutual Group (2002) O.J. No. 3135, Ont. C.A. case in which the driver was shot and it was found that the incident was not an accident within the meaning of s.2 because of an intervening event. Arbitrator Lee found that Mr. Fu’s situation qualified as an accident within s.2 of the SABS, stating:

Falling snow, rain, hail, icicles form bridges or overhanging street lamps, tree branches, water and debris from bridges might strike car travelling or idled or parked underneath. Such an occurrence would not be much different from a car driving over an icy or slippery surface or striking some other such road hazard. If, in the instant case, the concrete slab had fallen on to the road a moment before, and Mr. Fu then drove over the slab, there would be little question that the incident would be labelled an accident. Therefore, I find that encountering falling debris can be considered “... a normal incident of the risk created by the use or operation of an automobile” (p.12).

Halford and Allstate Insurance Company of Canada, A04-001379, April 27, 2005 - Arbitrator Blackman ordered Allstate to produce a copy of its complete statutory accident benefits file up to July 5, 2004 , which was when notice was sent to Allstate of the Application for Arbitration. In addition, it was ordered to produce any policy manuals or other documents pertaining to attendant care specifically referenced in its records which had been ordered to be produced. In Canpeau and Liberty Mutual Insurance Company (A00-000522, March 12, 2001) the arbitrator had found that the date of the Application for Mediation was the prima facie dividing line between producible and non-producible insurer documentation. Arbitrator Blackman, however, found merit in the view of Master Birnbaum in Garratt v. CGU Insurance Company of Canada (2001) O.J. No. 4124, that “a request for mediation with the Financial Services Commission ... is an attempt to resolve a dispute, even if required by a statute, not a statement of contemplation of litigation” (p.6). Accordingly, it was found that there is no prohibition against the production from an insurer’s file of any documents created after the date of the Application for Meditation. It was found that that point in time is merely a convenient dividing point, subject to possibly more detailed consideration of appropriate production exchange (p.7). In the case before him, he found that there was no allegation, nor any evidence of counsel being involved in the file prior to mediation. Given the facts of the case, it was found that Allstate had provided no evidence or arguments supporting a claim of solicitor client privilege or litigation privilege from the date mediation was accessed to the date the Application for Arbitration was received.

Al-Hajam and Allstate Insurance Company of Canada, A03-001830, April 21, 2005 - Arbitrator Wilson dismissed the arbitration and found that the applicant was nominally liable to pay Allstate’s expenses in respect of the arbitration under s.282(11) of the Insurance Act. However, Mr Muslim, counsel of record for Mr. Al-Hajam was primarily liable for all the insurer’s expenses which were assessed at $4,205.61 inclusive of G.S.T. There was no evidence that Mr. Al-Hajam complied with Arbitrator Blackman’s prehearing orders, nor even any evidence that Mr. Muslim made any efforts let alone his best efforts to obtain compliance (p.7). The arbitrator stated:

Mr. Muslim’s failure to keep undertakings to the Tribunal also cast doubt upon the reliability of any other claims he has made in the contest of this arbitration, including those relating to the status and availability of his client, Mr. Al-Hajam. It is not hard to see how such questionable conduct, whether intentional or not could bring the arbitration process itself into disrepute.

I find that, under the circumstances of this case, the conduct of Mr. Muslim in this matter, including his non-appearance, his failure to honour undertakings, to remove himself as solicitor of record, not to mention his apparent abandonment of his client, constitutes conduct that, taken together, ‘caused expenses to be incurred without reasonable cause or to be wasted by unreasonable delay or other default’. (p.12).

It was further found that Mr. Muslim’s conduct in the mater would have been sufficient to bar him from the proceeding, pursuant to s.23(3) of the SPPA had he appeared as an agent or advisor in these matters rather then as a barrister and solicitor (p.12). The Commission was directed to send copies of the decision to both Mr. Muslim at his last known business address and the Law Society of Upper Canada. Mr. Muslim, and any other interested party, including the Law Society, was given 30 days from the date of the decision to file any material related to the status of Mr. Muslim as a “barrister and solicitor qualified to practice in Ontario” (p.13).