Selected Decisions Brown and Korte

Hall v. Darnborough [1998] O.J. No. 4301 - Threshold.

Tran v. Ramlochen [1998] O.J. No. 5390 - Threshold.

May v. Casola [1998] O.J. No. 2475, Threshold (Ont. C.A.).

Joe v. Guardian Insurance Co. of Canada [1999] O.J. No. 2729 - interpretation of umbrella policy

Travel Insurance Co-ordinators Ltd. v. ING Halifax Insurance [2002] O.J. No. 3566 - interpretation of insurance policies.

Williams v. York Fire [2007], O.J. No. 2517 (C.A.) - coverage for property damage under auto policy denied.

Din v. Hage, [2007] O.J. No. 3636. Uninsured Coverage.

Lloyd v. Clark, [2008] O.J. No. 1682. Amendment to claim after limitation period.

Grewal v. Ivany [2008] O.J. No. 3934. Threshold.

Camarata v. Morgan [2009] O.J. No. 621. Limitation for Trustee Act.

Ayub v. Langdon, July 30, 2002 - The applicant arranged insurance on a 1988 Dodge Van in which he has no insurable interest by producing an ownership slip to a 1983 van. It was found the applicant was precluded from benefits on the basis he was operating an uninsured vehicle and had made a material representation that induced Langdon to enter a contract of insurance.

Liu v. Lombard Canada, October 2002. This is an appeal decision at the Financial Services Commission (Director of Appeals, David Draper) which held that assaults against bus passengers were not covered under the SABS as they were not Adirectly@ related to the use or operation of the automobile.

Belous v. Scottish & York Insurance, October 2002 - The applicant brought a death benefit claim alleging their father's motor vehicle accident injuries significantly and materially contributed to his subsequent death. The Arbitrator found the deceased fell because he was impaired by alcohol and his motor vehicle accident injuries did not materially or significantly contribute to his death. As a result, the applicants were precluded from death and funeral benefits.

Suliman v. Economical Mutual Insurance, December 16, 2002 - The insurer successfully argued the applicant's representative be excluded from the arbitration proceedings. The arbitrator found Messrs. DeWitt, Vaskevich and Simkhaev did not comply with their duties and responsibilities as representatives and their participation in the proceeding was incompatible with the proper administration of justice.

Lombard ats CGU (Asmunt), Arbitrator Guy Jones, dated September 15, 2004. Catastrophic incomplete paraplegic. Priority Dispute.

Utracki Estate v. Lombard General Insurance, October 20, 2004 - This was a death benefits claim in which it was alleged the deceased's motor vehicle accident injuries interfered with his chemotherapy regimen accelerating his death. Lombard successfully argued the motor vehicle accident was not a significant and material contribution to the death. The Arbitrator found the deceased passed away from the natural progression of his cancer condition.

McDougall v. Kingsway General Insurance, November 18, 2004 - McLeish Orlando as counsel for the applicant attempted to prevent the insurer from a Section 42 neurological assessment by Dr. Ranelli on the basis this assessment was post-stoppage of benefits. The Arbitrator found Kingsway was allowed to assess the applicant's neurological condition and a Section 42 assessment was ordered.

Ms. G - and- Pilot - [2005] O.F.S.C.D. No. 109 - Insured claimed for childcare expense as a rehabilitation benefit. Arbitration. Director of Appeals, Divisional Court, Leave to Ontario Court of Appeal.

Baptiste and Pilot, FSCO, January 2005 - arbitration with respect to the insured's dispute of a whole person impairment rating by a catastrophic assessment DAC.

Lombard ats Pilot (Ferguson), Arbitrator Malach, dated March 10, 2005. This is a catastrophic case. Twelve-year-old boy on bicycle crosses road ahead of transport truck. Insurer of transport truck ordered to pay 66% of loss transfer claims. On October 26, 2005, the Divisional Court ruled that the arbitrator proceeded on the wrong principle and the case was to be resubmitted to the arbitrator for a decision on split in liability in accordance with the Lombard insured having the right of way.

Zenith ats Smith, Justice Richard Byers, Belleville dated May 30, 2005. A catastrophically impaired plaintiff claiming that rheumatoid arthritis was caused or contributed to by the motor vehicle accident. Decision - insurer successful. Insurer successfully defended appeal to the Ontario Court of Appeal in November 2006.

Lombard and Liberty Mutual ats Primmum (Allstate), Arbitrator Guy Jones, dated August 18, 2005. Catastrophic case. Allstate failed to persuade arbitrator that they had properly cancelled the policy of insurance.

Maguire-Card v. RBC General Insurance, August 19, 2005 - The applicant sought income replacement benefits arising from a business plan to open her catering business. RBC was successful
in establishing the business plan did not qualify as employment or an offer of employment under the SABS. The applicant was precluded from income replacement benefits.

Lombard ats Wawanesa (Lingwood), Arbitrator Guy Jones, dated August 27, 2005. Wawanesa claimed that it was entitled to loss transfer as the bus insured by Lombard was a heavy commercial vehicle. Arbitrator rules that a bus is not a commercial vehicle. Arbitration dismissed with costs, no appeal.

Farmers' Mutual v. ING (Churchill), Arbitrator Guy Jones, October 17, 2005. Sixteen-year-old catastrophically injured young man passenger in father's car which strikes illegally parked heavy commercial vehicle on roadway outside a city, town or village. Farmers' argues that s. 17(2) of the Fault Determination Rules applies and that ING is responsible to repay 100%. Farmers' Mutual was successful on appeal, including leave to Ontario Court of Appeal. (View PDF 1) (View PDF 2) (View PDF 3)

The Personal v. Kingsway General Insurance Company, 2006 - This was a loss transfer dispute between insurers. Kingsway successfully argued The Personal was estopped from disputing liability after its initial acceptance of loss transfer.

Baron v. Kingsway General Insurance Company, 2006 - The insurer successfully argued it was entitled to defence medicals in order to challenge a CAT DAC determination.

Mujagic v. Kamps [2006] O.J. No. 2150 - adding or substituting parties.

Ms. G - and- Pilot - [2006] O.F.S.C.D. No. 144 - Decision of Director's Delegate allowing the appeal of whether childcare expenses are recoverable as a rehabilitation benefit.

Aviva ats Dominion (Dubreuil), Arbitrator Drew Hudson, April 16, 2006. Decision by arbitrator in favour of Dominion for catastrophic loss. Insured found not to be dependent upon parents.

Kieffer v. Economical Mutual Insurance Co., FSCO A05 B 000494, May 9, 2006 - The Applicant sought entitlement to income replacement benefits beyond the WAD II limit of 16 weeks outlined in s. 5(2)(e). The Arbitrator found that whether psychological impairments were viewed as distinct from the WAD II or as additional symptoms, it excluded the Applicant's impairment from the Grade II Whiplash Guideline. Since her impairment did not "come within the Grade II Whiplash Guideline", section 5(2)(e) of the Schedule did not apply.

Lombard ats Axa (Sibley), Arbitrator John Brooke dated June 28, 2006. Catastrophic case. Issue is whether or not previous impact relevant to subsequent collision.

Lombard ats Liberty (Figg), Arbitrator Stephen Malach, October 2006. Liberty unsuccessful in arguing that the time should be extended under Regulation 283/95 to give notice regarding priority in a fatality claim.

Rafaeli v. Lombard General Insurance Company of Canada et al., Justice Loukidelis, dated November 2, 2006. A motion was brought on behalf of the defendant, Lombard, to dismiss the plaintiff''s action for delay. The motion was granted. The decision of Justice Loukidelis was not appealed.

Lombard and Webb, decision by FSCO arbitrator (dated November 10, 2006) that fall of claimant who exited from a taxicab and walked behind the vehicle, falling on ice, was entitled to accident benefits. Appeal to Director's Delegate held April 27, 2007. Appeal decision released October 4, 2007 allowing appeal. Applicant's claim does not fit within the definition of "accident" in the SABS. (View PDF 1) (View PDF 2)

The Germania Insurance Farmers' Mutual Fire Insurance Co. v. Federated Insurance Company of Canada, Arbitrator Stephen Malach decision dated November 15, 2006. This matter involved a loss transfer dispute between insurers. The arbitrator held that Rule 6(2) of the Fault Determination Rules did not apply since the vehicles were not travelling in the same direction. Germania was successful and Federated's insured was found to be 2/3 liable under the ordinary rules of law. Justice Colin Campbell of the Superior Court of Justice dismissed the appeal. (View PDF 1) (View PDF 2)

White v. Ontario (Minister of Finance) [2007] O.J. No. 1709 - uninsured damage claim.

ACE v. Nordique (ING) and the Motor Vehicle Accident Claims Fund (Vandenberg), Arbitrator Bruce Robinson, February 28, 2007. Issue before arbitrator is whether ING properly cancelled policy for catastrophic loss. ACE INA was successful. (View PDF 1)

Pilot Insurance and Farro, decision by FSCO dated March 19, 2007. Insured claiming IRBs. Arbitrator determined Pilot not liable to pay the applicant any benefits or interest. Also ordered applicant liable to pay Pilot's expenses incurred in respect of the arbitration.

Corderio v. Wawanesa Mutual Insurance Company, FSCO A05 B 001105, March 23, 2007 - The Applicant claimed to have suffered a catastrophic impairment as a result of a car accident on September 18, 2002. The CAT-DAC concluded that although the Applicant undoubtedly was catastrophically impaired, his impairments did not arise directly from the accident, but were attributable to a pre-existing subdural haematoma. The Arbitrator found that the rapid movement of the brain inside a severely compromised skull cavity as a result of the motor vehicle accident was the cause of the significant cognitive impairments.

Aviva ats Echelon. Issue of whether or not in catastrophic loss, Echelon had given notice within the 90 days of receiving the completed application for benefits to Aviva. Decision dated March 30, 2007 in favour of Aviva. Divisional Court upheld decision.

Dawa Dolma v. Emmanuel Penticostes, Jonathon Leach and Nicholas Sakuta, Master Hawkins, April 25, 2007. Request on behalf of the defendant, Emmanuel Penticostes, to set strike the Statement of Defence and Crossclaim of the defendant Leach for his repeated failure to attend to be examined for discovery. The order was granted with costs.

Aviva ats Motor Vehicle Accident Claims Fund (Mazur), Priority CAT decision. MVACF unsuccessul.

Lombard ats Hargraves. This was a 2 2 week arbitration at FSCO (Arbitrator Renahan) as to whether or not the insured meets test of catastrophic impairment. Arbitration held late March, early April 2007. Decision dated October 4, 2007 finding that the applicant was catastrophically injured.

Platero v. Aviva Canada Inc., Master McAfee, May 7, 2007. The defendant disputed the plaintiff''s position that production of the accident benefits file satisfied her undertaking to provide the particulars of her accident benefit claims, and demanded full particulars thereof. The order was granted with costs.

Ronald Sweet v. Aviva Canada Inc., Deputy Justice Ntoukas, June 21, 2007. Successfully defended a claim brought by the plaintiff for accident benefits. The plaintiff had previously applied for and received WSIB benefits. It was held that absent a dispute under section 59(5) as to the applicability of section 59(1), the insurer was not required to pay benefits under the Regulation in respect of any person who was entitled to receive benefits under any workers compensation law or plan.

Roozbehan v. Murton et al., Justice Di Tomaso, August 29, 2007. A motion was brought on behalf of the defendant, Aviva Canada Inc., to compel the plaintiff to comply with her undertakings and refusals, with leave of the court, that were given at the examinations for discovery. The motion was granted with costs.

Ioannou v. Evans [2008] O.J. No. 21. Court refused to add defendant after limitation period expires.

Sider v. City of Toronto, [2008] O.J. No. 913. Action dismissed for delay.

Lloyd v. Clark, [2008] O.J. No. 1682. Court adding defendant after limitation period.

Madonik v. Aviva Canada Inc, 2008 - This was an appeal decision in which the insurer successfully upheld the Arbitrator's Order regarding production obligations of the applicant.

Eric Boucher, by his litigation guardian v. Tomascik, 2009 - This was a tort action involving dismissal due to parties non-compliance.

Wendy Boucher v. Tomascik, 2009 - This was a tort action involving dismissal due to parties non-compliance.

Wry v. Aviva, [2009] - Applicant's CAT Application denied on the basis of limitation period.

Lombard v. Wawanesa [2009] - CAT Priority. Arbitrator Novick finds that Wawanesa deflected claim to Lombard.

Giakoumakis v. Toronto (City), [2009] O.J. No. 55. Motion for summary judgement.

Wellwood v. Ontario (Provincial Police) [2009] O.J. No. 621. Divisional Court. Sets aside dismissal for delay.

Coachman v. Kaneshan, [2009] - Applicant's claim dismissed. Insurer claims costs against Mazin and Rooz.

Burns v. Ferri 8.O.R. (3d) 11 - Claims under underinsured coverage.

RBC v. ING (Flaig) [2009]. Arbitration and Appeal regarding priority.

MVACF and Allianz v. Lombard [2009]. CAT Preliminary Ruling of Arbitrator Jones that Lombard policy does not pay.

Reliable Life Insurance Company v. Muriel Helena Ingle et al., Master Hawkins, dated August 14, 2009. A motion was brought by the plaintiff under rule 26.01 for leave to amend the amended statement of claim. The motion was granted.

Lombard ats Certas (Rajathurai), CAT ruling by Arbitrator Novick that claimant not an “insured person” under the Lombard policy and therefore Certas policy higher in priority.

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