In Igbokwe v. HB Group Insurance Management Ltd. et. al, Docket C35449, July 27, 2001 , Ont. C.A. the defendant / appellant insurer appealed an order of Matlow J. which refused to grant judgment under Rule 49 of the Rules of Civil Procedure. The motion for judgment had been dismissed on the grounds that the alleged settlement did not comply with s.9.1 of the Settlement Regulation, O.Reg.664 and that it was not a Rule 49 offer to settle as it had been improperly served. The offer to settle had been served on the insurance adjuster. The Court held that the failure to comply with Rule 16.01(4)(a) was a technical breach that ought not to alter the nature and legal effect of the offer under Rule 49. Secondly it was found that Section 9.1 was not intended to apply to parties engaged in litigation:

Section 9.1 was never intended to affect Rule 49. The difficulties that would

result from offers to settle under Rule 49 received on the eve of trial and

during trial, particularly jury trials, do not permit s.9.1 and Rule 49 to work

in tandem. Once an action has been commenced, the relationship between

claimant and insurer becomes adversarial. Offers to settle litigation fall under

Rule 49 and the rule is a complete code. Section 9.1 was not designed to

accord special rights or impose obligations on claimants and insurers in

settling their court proceedings(p.8).

Accordingly, the appeal was allowed, the order of Matlow J. was set aside and judgment was granted in accordance with the terms of the plaintiff’s offer to settle.

 

SABS - 1996

 

In Terry and Wawanesa Mutual Insurance Company, A00-000017, July 12, 2001 the applicant was awarded additional benefits under s.5(2)(b) of the Schedule. Arbitrator Palmer found the DAC process to be flawed, in part because the summary report did not state what the DAC panel considered the “complete inability” test of s.5(2)(b) of the Schedule to mean. It was found that real world jobs should not be broken down into their component parts such that if the applicant is able to do a little more than half of any suitable job, that he should be found to be disentitled from receiving income replacement benefits.

 

In Nunes and St. Paul Fire & Marine Insurance Company, A00-000501, August 15, 2001 the applicant’s claim for the cost of a psychological evaluation, an evaluation of her attendant care needs, a functional abilities evaluation, a work-site evaluation and a home assessment was dismissed. Arbitrator Sampliner found that Ms.Nunes had recovered from her accident related injuries when the assessments were conducted by Profile Evaluations (p.6). Accordingly, he held that the “assessments were not reasonable expenses for the purpose of the Regulation, as required by s.24 of the Schedule.”

 

In Kassa and Economical Mutual Insurance Company, P00-00053, July 26, 2001 the appellant appealed from an arbitration decision which held that he was not entitled to income replacement benefits. Director’s Delegate McMahon found that “a distinction must be drawn between the insured person’s obligation to cooperate with the insurer’s investigation, and the insured person’s ultimate obligation to establish their claim.” A failure to establish a claim does not necessarily indicate a lack of cooperation. The Director’s Delegate found that the arbitrator had erred by failing to make this distinction in applying s.33 to the issue of Mr. Kassa’s production of financial documents. While the documents failed to establish the claim for income replacement benefits, there was no evidence of a lack of cooperation that warranted the application of s.33.

Director’s Delegate McMahon agreed with the arbitrator’s finding that Mr. Kassa had failed to cooperate with requests for the production of his medical records. However, he voiced concern over her conclusion that Mr.Kassa was therefore “disentitled to an IRB”. He found that s.33 should be applied to suspend benefits, not as a disentitlement. The arbitrator’s order was adjusted accordingly.

Arbitrator Wilson rejected Halifax’s argument that the applicant was statute barred from proceeding to arbitration in Lacroix and Halifax Insurance Company, A00-00105, June 29, 2001.

One of the reasons given was that the Commission had failed to deliver a Report of Mediator in French, within 60 days of the mediation, contrary to Rule 19 of the Dispute Resolution Practice

Code. Given that Ms. Lacroix’s English was imperfect, the arbitrator found that she was put to a

grave disadvantage by the failure of the Commission to deliver the Report in French as required.

 

Liberty Mutual was ordered to pay the applicant a special award of $25,000 in Graper and Liberty Mutual Fire Insurance Company, A00-000133, July 20, 2001. Arbitrator Makepeace found no evidence of malice, but noted two aggravating factors. First, the insurer “withheld benefits despite knowing that its conduct was aggravating Mr.Graper’s symptoms.” Secondly, an internal memo showed that the insurer was aware that Mr. Graper would likely succeed if the matter went to arbitration.