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WebOCA clarifies key areas of law concerning statutory accident benefits: injury lawyer Nick de Koning, by Aidan Macnab - LAW TIMES, August 14, 2024
In a recent personal injury case, the Ontario Court of Appeal clarified two “very important” issues concerning the Statutory Accident Benefits Schedule, says Nick de Koning, a personal injury lawyer at Deutschmann Law in Waterloo, Ontario.

WebOntario Court of Appeal overturns prior rulings in catastrophic injury case, by Bernise Carolino - LAW TIMES, August 12, 2024
The Ontario Court of Appeal has ruled in favour of a man who suffered catastrophic injuries in a motor vehicle accident in a matter involving the interpretation of statutory accident benefits under the province’s Insurance Act, 1990. The appeal court overturned the previous decisions of the Licence Appeal Tribunal (LAT) and the Divisional Court.

WebOntario Court of Appeal clarifies ‘excess liability policy’ in a fatal traffic accident case, by Angelica Dino - LAW TIMES, April 8, 2024
In a recent ruling, the Ontario Court of Appeal clarified the entitlement to coverage under excess liability endorsements in an insurance policy, in a case where our client’s husband was tragically killed in an MVA caused by the defendant. The driver of the vehicle was insured, but his coverage was insufficient to cover the damages. The ruling allowed our client access to $2 million of indemnity instead of $1 million.

WebIs garage liable for a car thief's injuries?, by Gordon Paul - TheRecord.com, April 12, 2018
Nick discusses a landmark ruling that found a Bruce County garage partly liable for injuries suffered by a teen who stole a car from the business.

PDF“Court of Appeal Takes Expansive Approach to Definition of ‘Accident’ in Caughy Decision,” KW OIAA Monthly Bulletin, May 2016 (reprinted in Lexology, November 1, 2016)

“Leading Legal Innovation,” GRAND Magazine, 2015

PDFPanelist and speaker, Canadian Insurance Claims Managers’ Association seminars regarding Bill 15 reforms and transition to Licence Appeal Tribunal, September 2, 2015.
Nick was invited as guest speaker from a defence perspective, presenting to approximately forty claims managers from various auto insurance companies.

PDFPanelist and speaker at “Crash Course–the Life of A Claim” multi-disciplinary seminar at Bingeman’s, Kitchener, June 2, 2015.
Nick spoke from a defence perspective on best practices for handling claims of catastrophic impairment.

PDF“Successful Motion Confirms Defendant’s Right to Prepare Insurer Examiners for Trial,” Ontario Accident Benefit Case Summaries October, 2014 (reprinted in Lexology October 23, 2014)

PDF“Recent FSCO Decisions Limit Consequences of Insurers’ Technical Errors on SABS Claims” (Miller Thomson Blog 2010)

Important Cases

PDFCourt of Appeal decision - Morrissey v Wawanesa - August 8, 2024
This recent Court of Appeal decision that clarified some important areas of the law around statutory accident benefits involved a client of our firm, Mr. M. Mr. M suffered catastrophic injuries in an accident back in January 2000 and has lifetime entitlements. In a 2019 arbitration decision, the Licence Appeal Tribunal (which hears all disputes over accident benefits at first instance) had ruled that our client was bound by a provision in the current version of the Statutory Accident Benefits Schedule (which came into force in 2010, more than ten years after our client’s accident) that required him to show that he was paying a professional service provider in order to be entitled to receive attendant care benefits. The Court clarified that this provision- section 3 (7) of the current Schedule – only applies to individuals who were involved in an accident that happened on or after September 1, 2010, when that Schedule came into force. Individuals whose accident was prior to September 1, 2010, continue to be governed by a more relaxed meaning of the word “incurred” and only need to show a valid need for the assistance in question. That assistance can be delivered on an informal basis, for example , by a friend or family member. The Court also found in favor of our client on an additional issue relating to the timing of a Form 1 (the prescribed form that determines the amount of attendant care to be paid), finding that a claimant can submit an updated Form 1 that is retroactive in nature. The Court overruled the LAT and the Divisional Court who had imposed an onerous test of “urgency, impossibility or impractability” to explain why such a Form 1 should be permitted to be retroactive in nature. The Court noted that the appeal addressed “dense and difficult” passages in the accident benefits legislation. This decision provides some important clarification on these issues. Nick de Koning from our office appeared for our client on the appeal.

PDFSmith v Taylor and Aviva - March 27, 2024
Our client’s husband was tragically killed in an MVA caused by the defendant, Taylor. The damages (including significant dependency losses) were several million dollars. Taylor’s liability limit is $1 million. Unfortunately, our client had no available indemnity under the OPCF 44 R Family Protection endorsement as it also had a $1 million limit. Aviva issued a comprehensive homeowner’s policy to the plaintiff with a “Personal Excess Liability Policy” (“PELP”) including additional family protection coverage. This apparently offered an additional $1 million of indemnity on top of Taylor’s limit or the OPCF44 R . Aviva’s position throughout, however, which was successful before the motions judge, was that because Taylor was not an “inadequately insured motorist” for the narrow purpose of the OPCF 44 R in isolation, he could not be an “inadequately insured motorist” with reference to the optional family protection coverage. Aviva took the position that the OPCF 44 R had to be exhausted ($1 million fully paid out) in order for the additional coverage to be available. The motions judge had agreed with Aviva and allowed Aviva’s motion to dismiss our client’s action with respect to Aviva. . The result of this decision was that our client had access to maximum $1 million of indemnity instead of $2 million, despite the damages being far greater.

The Court of Appeal overruled the motions judge and allowed the appeal. The Court of Appeal found that the motions’ judge decision could not be correct since it led to an outcome that undermined the purpose of the Excess endorsement in the first place. The Court found that applying a narrow interpretation of “limit of family protection coverage” so as to have the same meaning for both the OPCF44R endorsement and the optional endorsement on the PELP was unreasonable since it was inconsistent with the additional coverage granted in the PELP in the first place. The result is that our client can access $2 million of indemnity instead of $1 million.

PDFHarbin v Echelon General Insurance Company - January 15-18, 2024
Our client was a passenger in a car that was forcefully rear ended, causing severe damage to the vehicle. Our client suffered a brain injury and has had ongoing complications affecting her physically, cognitively, and emotionally. Our client had a pre-accident history of medical issues that also included several concussions from sports activities. Her car insurer refused to accept her as Catastrophically Impaired under her automobile statutory accident benefits. This forced our firm to obtain expert opinions to review our client’s file and assess whether our client met the definition of Catastrophic Impairment. Working with our psychologist and neuropsychologist experts, along with family witnesses and our client, we were able to present a compelling case at the hearing. The adjudicator agreed with our position and found our client to be Catastrophically Impaired based on 3 out of 4 marked impairments under Criterion 8.

PDFDe Boyrie v TD Insurance Meloche Monnex - decision dated April 19, 2023
After a three day hearing before the Licence Appeal Tribunal, the arbitrator found that our client was entitled to Income Replacement Benefits. The insurer had relied on the opinions of various insurer examinations and terminated our client’s benefits. The adjudicator found that our client was unable to work due to psychological impairments, preferring the evidence of our expert over that of the insurer. The insurer had introduced various surveillance repots and also some YouTube videos that our client had prepared. However the insurer’s counsel did not make much use of this information during the hearing and the adjudicator placed little weight on this evidence. Of note, the adjudicator did not consider that our client met the test for post 104 IRBs as a result of physical impairment, though our client was diagnosed with chronic pain. The adjudicator did not accept the client suffering from “chronic pain or any physical impairment” largely due to the medical record because in the time period shortly following the accident, the adjudicator determined that our client made “few physical complaints to her family doctor”. Further the adjudicator made a point to say there were no “objective findings of musculoskeletal impairment”.

PDFMichael McAulay and Certas Home and Auto Insurance Company
This was a recent decision from the Licence Appeal Tribunal. The insurer was trying to get another medical assessment of our client prior to a Catastrophic impairment hearing. Nick was successful at the motion. The arbitrator agreed with our position and denied the insurer the opportunity for another medical assessment of our client. If the insurer was successful, it would have resulted in a delay of up to a year before our client’s Catastrophic impairment hearing would have been heard. As a result, the hearing was to proceed as originally scheduled.

PDFMarchione-Faragher & Dominion -- Reconsideration Decision
Our client had a very significant pre accident medical history. She had been involved in a number of accidents prior to the accident that was the subject of her accident benefit claim. Following the most recent accident the client declined significantly. She suffered from overall chronic pain and major depression. We were able to show that prior to the last accident she had made a good recovery and had reached a point where she was considering employment opportunities. Following the subject accident her decline was significant and she had significant difficulties with any employment and her activities of daily living. The insurer denied that she was catastrophically impaired and the matter was brought to a Licence Appeal Tribunal hearing. We were successful at the LAT hearing and the insurer asked for a reconsideration. In the decision below the adjudicator found that the insurers request for reconsideration was not supported. We were successful in demonstrating that there was no grounds for a reconsideration and that the insurer was attempting to relitigate the hearing in which they were not successful.

PDFA.M.F. and The Dominion of Canada General Insurance Company, decision of June 21, 2019
Our client was involved in a minor rear end car accident. Unfortunately, over time, the impact of that accident had some significant consequences for our client. After a multi day hearing, the Licence Appeal Tribunal (LAT) ruled in our client’s favour and found her to be Catastrophically impaired as defined under the Statutory Accident Benefits schedule (SABs). The adjudicator found that she had one marked impairment. Further, the adjudicator also found that she had a 55% whole person impairment as a result of a GAF of 38. The adjudicator preferred the evidence of our client’s expert and treating physician over the expert opinion provided by the insurer. Our client will now be able to access a higher level of medical benefits and also have the benefit of a case manager to assist her in accessing needed medical services.

PDFBrad Ashworth and Ministry of Employment and Social Development, decision of September 27, 2018
Our client suffered a back injury in a car accident of 2013. Unfortunately, his mental health declined and he fell into a deep depression as his chronic back pain failed to improve. His claim for a CPP disability benefit had been declined initially and again at the reconsideration stage. However, we were successful at an in-person hearing before the Social Security Tribunal. The SST adjudicator accepted that it was the totality of mental and physical impairments that had to be considered, not just the chronic back pain. Our client had a severe disability, given the cumulative effect of the chronic back pain and his mental health impairments. One reason our client’s claim was originally denied was because he was only 29 years at the time his disability arose, the premise being that such a young person must have some work capacity. The SST adjudicator accepted that while age is a relevant consideration, we had proven our client had a severe and prolonged disability that prevented him from working at any reasonable job, given his background in warehouse and restaurant work. His chronic pain and depression rendered him an unreliable employee who could not adhere to a schedule . He had a severe disability that had not improved with treatment, such that he was entitled to the CPP benefits.

PDFJason Naemtz and Ministry of Employment and Social Development dated March 12, 2018
Our client suffered a serious back injury that resulted in chronic pain and ongoing severe disability. His work as a welder was very physical. He had always worked as a welder. He stayed home and took care of his infant child. He did not attempt alternate work as he felt he was incapable of sustaining any other work, even on a part-time basis. The Ministry felt that he had some work capacity and that he could be working. However there was no evidence of work capacity. The medical records showed the opposite. But the Ministry felt that if he was not pursuing active medical treatment then he must have work capacity. We were able to show that he suffered a severe and prolonged disability such that he did not have work capacity and therefore unable to sustain any full-time or part-time work.

PDFKidder and Economical Mutual Insurance Company, FSCO Appeal File P15-0008, decision of Delegate David Evans of January 28, 2016.
The applicant was unsuccessful with his appeal as he essentially attempted to revisit the arbitrator’s factual findings. The Appeals Delegate reviewed the applicable test for “error of law” in the accident benefits context.

PDFKidder and Economical Mutual Insurance Company, FSCO File A12-006704, decision of December 19, 2014.
Nick represented the insurer in this FSCO arbitration in which the insurer was successful in resisting a claim of catastrophic impairment. The applicant’s claims of disability were contradicted by surveillance evidence.

PDFLacroix v. Federation Insurance Company of Canada, 2014 ONSC 6002 (CanLII) (also published in Ontario Reports).
Nick acted for the defendant, an accident benefits insurer. This lengthy matter, involving a 2007 accident, proceeded to trial in 2014. Before the trial, the plaintiff’s counsel wrote to the defendant’s proposed medical witnesses (all insurer’s examiners) advising them not to speak to defence counsel on the basis the plaintiff did not consent to this. The trial judge confirmed the right of the AB insurer and its counsel to speak to medical witnesses in advance of trial. No consent is needed from the plaintiff.

PDFKent v. Stop ‘N’ Cash 1000 Inc. et al 2006 CanLII 22660 (ON SC).
Nick represented the plaintiff who was successful in this wrongful dismissal action against companies operated by two business partners who had had a fallng out. Both had denied that the plaintiff was their employee. The judge found in favour of the plaintiff and awarded damages against both.

PDFAshkan Azimi v. Economical Mutual Insurance Company FSCO File A08-002596, decision of June 7, 2010.
Nick represented the insurer who was successful in having the arbitration dismissed on the basis that the applicant failed to establish, on a balance of probability, that he was involved in an “accident.”

PDFMrs. S. and Economical Mutual Insurance Company FSCO File A08-001275, decision of February 12, 2010.
Nick acted for the insurer who was successful. The arbitration was dismissed. The applicant could not establish that she was employed at the time of the accident, and thus entitled to income replacement or housekeeping and home maintenance benefits. The case contains discussion on why technical breaches on the part of the insurer do not create substantive benefit entitlement where the applicant could not prove entitlement on the merits.

PDFShmuel vs Perth Insurance, FSCO arbitration, file A11-002436.
Nick acted for the AB insurer. The applicant, who suffered some soft tissue injuries, made a claim for $29,900 of medical/chiro expenses. He also claimed four costs of examinations and housekeeping and attendant care. All claims were dismissed, except the applicant was allowed $6300 for medical, not because the merits, but on a technical basis as the arbitrator ruled these items were "deemed approved."

PDFShmuel vs Perth - FSCO appeal, file P13-00026, a decision of Delegate Evans.
Nick acted for the insurance company on this successful appeal of the $6300 award mentioned above. This appeal turned on the proper interpretation of section 38 of the 2010 Schedule (O. Reg. 34/10). The Appeals Delegate allowed the appeal and dismissed the arbitration entirely. The OCF-18 Treatment and Assessment Plans in question had not been responded to, mainly because the insurer had been bombarded with dozens of similar and redundant Plans. Despite the fact some Plans were not responded to, the applicant still was not entitled to payment because the evidence at the hearing did not substantiate that any expenses had been incurred in connection with those specific Plans. Section 38 does not use the term "deemed approval.” Rather, it requires the insurer to pay for goods and services that have bona fide been incurred in relation to such a Plan 11 days or more after it was submitted, until the Plan actually is responded to.

PDFMrs. S and Economical appeal- FSCO file P10-0005, a decision of Delegate Blackman.
The applicant unsuccessfully appealed the FSCO arbitration decision mentioned above. Nick acted for the insurer. The applicant made some creative technical arguments why the benefits should be payable despite the applicant not being entitled on the merits, due to some irregularities in the insurer's conduct. For example, the applicant argued for an interpretation of the Schedule that would result in income replacement benefits being payable, even though the arbitrator found that the applicant was unemployed and made up the evidence about working at a restaurant. These arguments were all rejected and the appeal was dismissed.

PDFAshok Emmanuvel and Economical- FSCO file A11-000560.
The insurer’s position was that an accident did not happen. The insurer relied largely on evidence of professional engineer Sam Kodsi to show the vehicles did not appear to have come in contact. Although both of the vehicles allegedly in the accident had some damage, the engineer showed that there was no paint transfer between the vehicles and the damage was consistent with other unrelated events. Also, there were various suspicious circumstances which the arbitrator also noted reflected poorly on the applicants' credibility.

PDFSpengen Estate, 2005 CanLII 47782 (also reported in the Ontario Reports).
Nick acted successfully for the beneficiary of a modest estate where a compensation claim by an individual (who was both estate trustee and solicitor) seemed excessive. Nick successfully argued the compensation should be reduced because the estate was modest, the estate mostly consisted of passive savings and investments and the trustee/solicitor had little work to do.

PDFRe Spengen Estate. 2006 CanLII 2780.
Nick was successful with a claim for substantial indemnity costs payable personally by the estate trustee/lawyer mentioned above, who had defied a court order for format of costs submissions, and encumbered the court with volumes of unnecessary affidavit and supporting material.

PDFM.R. vs State Farm Mutual Automobile Insurance Company, LAT file 16-003757. Decision of October 18. 2017.
We were successful for the insurer in resisting a claim for post-104 IRBs. The arbitrator found that the applicant failed to prove his claim on a balance of probabilities. Although the applicant did have some medical evidence supporting his claim, the report writers used vague and indeterminate language (such as "infirmity" and stress). The diagnoses and prognoses given were too vague and the applicant's reports were not directed adequately to the test of complete inability to engage in an occupation for which suited by education, training or experience. This decision emphasises the needs for expert evidence to be properly focused on the issue at hand.