IMPORTANT CASES

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Personal and Zurich American
2018-06-25
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Important loss transfer decision confirming a non-Ontario Insurer that is a signatory to the PAU is not obligated to pay loss transfer as a result of an accident outside Ontario.
Aydemir and Aviva (FSCO A-14-003170) Costs Award
2018-06-05
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The Applicant was ordered to pay the Insurer $101,205.11 in costs following a complicated 13 day Arbitration Hearing where all claims were dismissed.
Chubb and Continental
2018-04-04
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Fascinating priority dispute involving deflection, optional benefits coverage, regular use and an O. Reg. 283/95 special award. Arbitrator Bialkowski found the claimant was a listed driver as well as a deemed named insured and that CNA deflected the claim by not advising of the optional benefits coverage under the policy. The decision provides a roadmap for tackling challenging priority disputes featuring OPCF-47 issues, passive deflection of an OCF-1, and adding the insured as a party to the dispute.
T.H. and Aviva (LAT 17-001125)
2018-01-17
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Important LAT decision following the ONCA Stranges decision to find that "technical entitlement" does not exist under the SABS. Rather, the insured must prove that they meet the substantive test for entitlement during a period of the insurer's "technical" non-compliance with a procedural pay pending provision. Reconsideration filed by the Applicant.
Dittman v. Aviva, 2017 ONCA 617
2017-07-21
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The Court of Appeal concluded it was reasonable for the summary judgement motion judge to find that the use of a parked motor vehicle in a drivethru directly caused impairments from a scalding hot cup of coffee.
Economical and ICBC
2017-04-19
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An important priority arbitration decision confirming adult children in full time post secondary eduation are usually dependent upon their parents absent unusual circumstances where they earn enough income or have the financial means to cover at least 50% of their cost of living. This decision follows the existing caselaw setting out that loans and lines of credit for school are not considered income in the hands of the student, but rather debts, and are therefore neutral in the dependency analysis (to the extent that the loan or line of credit is used for school expenses).
ACE INA and Economical
2017-04-12
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Important priority dispute decision dealing with the impact of a reinsurance agreement, whether a cab driver was a listed driver on the fleet policy, and an offer by the broker of optional benefits coverage to drivers. Arbitrator Bialkowski confirmed that a list of drivers maintained by the named insured or the broker for risk management purposes does not make those drivers 'listed drivers' within the policy.
State Farm and Economical
2017-03-24
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Is a repetitive use injury an "accident" under the SABS? Is there an "incident" for regular use to apply or for a s. 268 priority tie-breaker? These issues are presently under appeal to the Superior Court from this priority arbitration decision.
Ungaro and Aviva (FSCO A14-007429)
2016-07-18
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Arbitration dismissed as attendant care services provided by family members were not "incurred". An insurer is entitled to re-assess the incurred threshold monthly. The failure to submit monthly details of services and to respond to the Insurer's requests for proof of incurred, meant the Applicant did not meet the onus of proof.
Laches Does Not Apply to Loss Transfer Claims
2015-11-12
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In Intact Insurance Company of Canada v. Lombard General Insurance Company of Canada, 2015 ONCA 764, the Court of Appeal recently confirmed that the equitable doctrine of laches does not apply to loss transfer claims. This means that there is no legislated limitation period for loss transfer indemnification claims made after January 1, 2004 (yes, 2004). As result of this decision, the legislature may take steps to amend O. Reg. 668 to include a limitation period for the service of a Notice of Loss Transfer and perhaps a two year limitation period to serve a Loss Transfer Request for Indemnification from the date that the underlying accident benefits claim exceeds the $2,000 deductible. In the meantime, insurers will initiate and respond to further "stale dated" claims for loss transfer.
State Farm v. Old Republic, 2015 ONCA 699
2015-10-20
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Precedent setting Court of Appeal decision confirming proper interpretation of Rule 9 of the Fault Determination Rules.
State Farm v. Old Republic, 2015 ONCA 699
2015-10-20
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Precedent setting Court of Appeal decision confirming proper interpretation of Rule 9 of the Fault Determination Rules.
ONCA Confirms Absurdity of Superior Court's Rule 9 Interpretation
2015-10-20
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With a unanimous 3-0 decision, the Court of Appeal confirms that heavy commercial vehicle insurers only pay loss transfer to insurers of vehicles with which they actually collide under Rules 9 and 11 of the Fault Determination Rules.
EUO: Still a hammer in the tool box
2015-07-17
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The now infamous December 5, 2014 Williams and State Farm Preliminary Issue Motion Decision found that s. 36(4) prohibits a s. 33 examination under oath for specified benefits if it is not requested within 10 days of the insurer's receipt of the OCF-1 and the OCF-3. The Appeal Decision(FSCO Appeal P15-00001)confirms that an EUO is permitted at any time to address past, present or future benefits.
Unifund and TD
2015-07-14
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Arbitrator Novick confirmed that a 60 year old visitor to Canada was principally dependent for finances upon her daughter, the spouse of TD's named insured.
T.N. and Personal (FSCO A06-000399)
2014-11-20
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A landmark decision dealing with a delayed retroactive claim for Attendant Care Benefits and a precedent setting award of interest and a Special Award.
TD v. Markel, 2014 ONSC 6461 (CanLII)
2014-11-12
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A unique precedent and successful Loss Transfer Appeal confirming that an insurer who fails to properly transfer priority for an accident benefits claim cannot claim loss transfer.
Zurich Insurance Company v. Chubb Insurance Company of Canada, 2014 ONCA 400 (CanLII)
2014-05-15
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Juriansz J.A.'s insightful dissent confirming that a motor vehicle liability insurer in Ontario is obligated to respond to a claim for accident benefits and then initiate a priority dispute was affirmed by the Supreme Court of Canada on April 21, 2015 in Zurich Insurance Co. v. Chubb Insurance Co. of Canada, 2015 SCC 19 (CanLII).
Lo-Papa and Certas Direct (FSCO A12-005538)
2014-05-14
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FSCO decision confirming the onus is on the insured person to prove that their impairments are not predominantly minor in nature in order to be entitled to medical and rehabilitation benefits outside of the MIG and the hard cap of $3,500.

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