In Irving and CGU Insurance Company of Canada, A02-000952 May 21, 2003 the applicant was badly injured when he was struck in the head by a beer bottle that was thrown from a passing pick-up truck.  Mr. Irving received 72 stitches in his face, 8 stitches in his leg and underwent surgery to repair a large  corneal laceration.  His eye required 15 stitches.   Arbitrator Miller held that Mr. Irving was injured as a result of an “accident” as defined in ss.2 (1) of the Schedule.  In her reasons she rejected CGU's submissions that the truck was merely the platform for the assault and that there was no direct causal connection between the truck and Mr. Irving's injuries, stating:

In my view the truck was significantly more than a platform.  I find that throughout the sequence of events in this incident, the truck played a central and ongoing role in the commission of the assault.  There is, to be discussed in more detail below, clearly an unbroken line of causation beginning with Mr. Doe driving his truck around and throwing bottles at people, the force of the moving truck contributing to the shattering of the beer bottle on Mr. Irving's face, and the truck allowing Mr. Doe to make a quick escape without being caught.  As noted in the agreed Statement of Facts, Mr. Doe was only caught when he threw a beer bottle at another man and the man called the police.  A good analogy to this incident is that of a “hit and run” without the truck physically touching Mr. Irving (p. 13).

A forensic engineering report was entered on behalf of the applicant, which concluded that the “velocity of the moving truck played a central role in contributing to the severity of the impact of the bottle shattering on Mr. Irving's face and the resulting injuries to Mr. Irving” (p.17).

Section 4 - Income Replacement Benefits and

Section 15 (3) (1) - Rehabilitation Benefits

In Scott and State Farm A01-001288 May 15, 2003 the applicant had been employed as a medical secretary for approximately fourteen years, before she was injured in a motor vehicle accident on March 20, 1999.  Arbitrator Muir rejected State Farm's assertion that Ms. Scott had devoted herself to the pursuit of benefits and found that Ms. Scott had done all that she had been asked in seeking to rehabilitate herself (p. 7).  Arbitrator Muir accepted Ms. Scott's evidence that because of her difficulties with back pain, headaches and memory problems, she was not employable in any capacity because of her limited levels of function and essential unreliability.  He found it unrealistic to expect that an employer would hire a 54 year old woman who required workplace accommodations and suffered from various impairments.  Accordingly, Ms. Scott was found to be entitled to benefits from May 10, 2001  and ongoing.  She was also awarded the cost of a second hand golf cart under ss. 15 (3) (1) of the SABS 1996.  Arbitrator Muir found that the golf cart was a reasonable and necessary measure to minimize the effects of her inability to walk other than short distances, which was a result of impairment suffered in the motor vehicle accident.  It was also found that Ms. Scott's Hospital's of Ontario Pension Plan (HOOPP) was not deductible from Ms. Scott's income replacement benefit.  State Farm argued that the plan was in the nature of a temporary disability plan until age 65 and therefore an income Continuation Plan within the meaning of s. 7.  Arbitrator Muir rejected this submission for the following reasons:

1.   It is a pension.  The benefit level is not directly related to Ms. Scott's income at the time that she        went off work, but is a defined benefit plan based on years of membership in the plan;

2.  Ms. Scott voluntarily chose to enroll in the plan and was not required to do so;

3.  Ms. Scott was not required to show economic loss in order to qualify for the pension;

4.  The pension was payable, so long as Ms. Scott met eligibility criteria, at any time within four years       of her last day of work. 

Accordingly, it was found that the HOOPP pension was not deductible from Income Replacement Benefits pursuant to s. 60 of the Schedule. 

   Section 25 - Death Benefits

In Fraczek v. Pascual [2003] OJ No. 1402, OCA the court held that a single payment of $10,000 is required under ss. 25 (2)(5)(i).  State Farm had appealed a decision of the Divisional Court in which it was held that ss. 25 (2)(5)(i) requires an insurer to pay a $10,000 death benefit to each person eligible under the SABS -1996 for payment of the benefit.  In making this finding, the Court of Appeal stated:

The respondents' argument has been accepted by some insurance arbitrators in Ontario (see for example, Hisson v. Zurich Insurance Company [2001] O.F.S.C.I.D. No. 70).  It is a possible interpretation of the application of ss. 25 (2)(5)(i) and 25 (2)(5)(ii).  However, I am not persuaded that it is the most reasonable interpretation.  It would result in the payment of multiple $10,000 death benefits, by the combined operation of ss. 25 (2)(5)(i) and (ii), in the absence of a clear indication of a legislative intention to require same, and in the face of a clear requirement for multiple benefit payments contained in other provisions of the same benefit payment scheme of which ss. 25 (2)(5)(i) and (ii), form a part.  In addition, it is inconsistent with the terms of s. 25 (2)(5) (iii) , which suggest that a single death benefit of $10,000 is contemplated under both that section and under s. 25 (2)(5) as a whole.  Finally, in my view, it is also inconsistent with the recommendation of Osborne J., in his Report of Inquiry into Motor Vehicle Accident Compensation in Ontario, supra, concerning death benefits.  In considering the reform of the death benefits regime in effect in Ontario prior to 1990, under which “dependency” was related to financial dependency on the “head of the household” or his or her spouse, Osborne J. said (at p. 581):

[I] in my view, the death benefit should be $25,000 for the death of the head of the household or the death of the spouse of the head of the household.  An additional $10,000 should be paid for each dependant of the head of the household or spouse.  If a dependant child is killed, the death benefit would be $10,000 [emphasis added] - (par. 45, p. 10).

Section 36 - Election of Benefits