Julia Lo-Papa v. Certas Direct Insurance Company, FSCO A12-005538[i]
The Applicant, Ms. Julia Lo-Papa was injured in a motor vehicle accident travelling as belted passenger in her grandmother’s vehicle. Under the Minor Injury Guideline[ii] under the Staturory Accident Benefit Schedule[iii] she received $3,500 as statutory accident benefits towards medical and rehabilitation expenses from the Respondent Certas Insurance Company. The Applicant claimed that she was entitled to more funding for her treatment plans as her injuries fall outside the MIG Cap of $3,500. As parties were unable to resolve their dispute through meditation, the Applicant applied for arbitration at the Financial Service Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8.
- Is the Applicant subject to the Minor Injury Guideline Cap of $3,500?
- If the answer to the first question is in the negative, is the Applicant entitled to funding for the treatment plans and assessments in dispute?
- Insurance Act, R.S.O. 1990, c.I.8.
- The Statutory Accident Benefits Schedule, Ontario Regulation 34/10.
- Minor Injury Guideline[iv].
The parties provided to the tribunal an agreed statement of facts and joint document brief. Both the parties for the purpose of evidence relied on the report of specialist doctors. The Applicant doctors report stated that she suffered from anxiety and depression since the accident and the Respondent’s stated that she suffered from minor injury.
The onus of the proof was on the applicant that the injury fall outside the MIG. The court relied on the decision of Scarlett v. Belair[v] to state that burden of proof is always on insured to prove that he or she fits within scope of coverage.
The court relied on definition of minor injury as provided in s. 3(1) of Schedule, i.e. a minor injury means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury. Further s. 18(1) of schedule provides that an insured can recover up to 3,500 for minor injury but s. 18(2) of schedule provides there can be an exception based on compelling evidence.
The tribunal relied on the report of doctors of the Applicant and Respondent. The tribunal stated that the Applicant’s doctor report doesn’t provide whether the Applicants suffers from lots of anxiety and depression to remove the injuries from the MIG and also offered no opinion that there is a pre-existing medical condition that might be impeding recovery. The Respondent’s doctor’s report provided that the Applicant only suffered from minor injury as a result of accident and can be treated within the $3,500 cap provided in guidelines.
The tribunal also relied on s. 38 of schedule and stated in order to prove that MIG doesn’t apply, the applicant should provide a treatment and assessment plan from a regulated health professional stating that the Applicant’s injury is not a minor injury.
According to the tribunal the burden was on the Applicant to prove that his injury was not a minor injury falling outside the MIG. The Applicant failed to satisfy the test to remove injuries from the MIG and for the same reason subject to MIG cap of $3,500. As the Applicant failed to prove first issue the tribunal didn’t dealt with the second issue.
The case is significant as it provides that the burden always rest on the Applicant to prove that the injury falls outside the MIG cap and to prove that the insured should provide a treatment an assessment plan from a regulated health professional that the insured’s injury isn’t a minor injury or should have other compelling evidence of pre-existing medical condition
[i] Decided by Arbitrator Barry S. Arbus on May 14, 2014.
[ii] Hereinafter referred to as “MAG”.
[iii] Ontario Regulation 34/10, hereinafter referred to as “Schedule”.
[iv] Superintendent’s Guideline No. 2/11 issued pursuant to s. 268.3 of the Insurance Act for the purposes of the Statutory Accident Benefits Schedule. Presently Superintendent’s Guideline No. 01/14 is in force.
[v] Scarlett v. Belair Insurance Co.,  O.F.S.C.D. No. 42.
Sukhomlina and State Farm, 2014 FSCO 4215
- On June 12, 2010 Arina Sukhomlina was injured in a motor vehicle accident.
- In accordance with the Schedule, she was entitled to receive statutory accident benefits from State Farm Mutual Automobile Insurance Company.
- The Applicant and the Insurer tried to resolve their dispute, but could not find a consensus.
- Ms. Sukhomlina applied for arbitration at the FSCO.
- On April 8, 2014 the Applicant did not appear to prehearing discussion (Ms. Sukhomlina’s counsel noted concerning inability to connect with the Applicant).
- On April 8, 2014 was next hearing, where Ms. Sukhomlina’s counsel filed a motion record on FSCO and State Farm.
- Mr. Ho requested to dismiss the application.
- Whether Ms. Sukhomlina’s counsel should be excluded?
- Whether Ms. Sukhomlina’s application for arbitration should be dismissed?
The Insurance Act, R.S.O. 1990, c.I.8, s.282. as amended.
- Ms. Kanevsky tried to contact Ms. Sukhomlina a lot of times. Solicitor-client relationships between the Applicant and counsel were broken. Another important fact is that State Farm did not reject withdrawal of Ms. Sukhomlina’s counsel.
- Ms. Sukhomlina was informed concerning all of the proceedings via mail and telephone. She did not notify any new contacts or changes of current ones. There was no answer from Ms. Sukhomlina. The Applicant must have been present at FSCO.
The onus was to establish the right to claims and Ms. Sukhomlina did not meet that requirement.
Ms. Kanevsky was subject to withdrawal as the Applicant’s counsil. Also Ms. Sukhomlina’s application for arbitration was dismissed.
The Statutory Accident Benefits Schedule — Effective September 1, 2010, Ontario Regulation 34/10, as amended.
The Insurance Act, R.S.O. 1990, c.I.8, s.282
 Sukhomlina and State Farm, 2014 FSCO 4215 at para 2.
 Ibid at 3.
 Ibid at para 4.
 Ibid at para 2.
Case Summary: Malin and State Farm (FSCO A12-000108)
Nature of the Case:
To deal with possible expenses entitled the Respondent, State Farm, as the Applicant, Mr. Abdi Malin, failed to attend both pre-hearing discussions and the actual hearing of this case. (FSCO A12-000108, April 30, 2014)
History of the Case:
Mr. Abdi Malin, the Applicant’s claim for accidental benefits, from State Farm Mutual Automobile Insurance Company, was dismissed on March 31, 2014, according to the statutory accident benefits under The Statutory Accident Benefits Schedule regarding accidents on or after November 1, 1996; however, the arbitrator, Edward Lee, had reserved on the issue of expenses.
The Facts of the Case are as Follows:
- A pre-hearing was held on September 10, 2013 with the applicant Mr. Malin in attendance with his counsel and another pre-hearing was scheduled on that date for December 6, 2013
- Mr. Malin’s council served a motion to withdraw as his representative following the meeting and the arbitrator permitted Mr. Malin’s former counsel to withdraw
- Mr. Malin failed to attend the second pre-hearing on December 6, 2013
- The hearing was scheduled for March 21, 2014
- Mr. Malin did not attend the hearing on March 21, 2014.
- Mr. Malin’s application was dismissed on March 21, 2014.
- Parties were given thirty dates to submit all evidence and submission regarding expenses.
- State Farm provided documentation while Mr. Malin provided nothing
- Is State Farm entitled to expenses incurred in respect to this arbitration hearing?
- If the answer to the first question is ‘yes’, what is the amount of expense to which State Farm is entitled?
- State Farm is entitled to expenses incurring in respect of this hearing.
- State Farm is entitled to $2,000 as expenses in respect to this arbitration hearing, inclusive of all costs, disbursements and taxes.
Reason for Decision:
State Farm was successful in handling this case and is entitled to expenses. Based off case law (Salva and Paramanantham and Allstatem, FSCO A05-002958 and FSCO A06-000004, July 30, 2007), the main consideration of arbitration expenses is reasonableness (Ragulan and Security National, FSCO A05-002940, January 7, 2008). State Farm appeared before the Financial Services Commission of Ontario on three occasions, although no arbitration was actually conducted. State Farm is awarded $2,000 (inclusive of all disbursements, costs and taxes) based on time spent by counsel, legal assistance and preparation.
Significance of Decision
The main issue here is that the Applicant initiated the case, but then failed to follow through and attend the mandatory pre-hearing conference and the hearing itself, essentially abandoning his own application. This wasted time and resources for both the FSCO and the Respondent. There is a need for reform to prevent abuse in regards to wasting time and resources of the parties involved.
In my previous article, I discussed the potential for new tribunals and amendments to help lower insurance rates for consumers, one of the recommendations in Justice Cunningham’s Report was to focus on scheduled arbitrations.
Importance of Arbitration
Clearly, this case in support of his recommendations, as the arbitration process was able to save actual court time, which would have been wasted since Mr. Malin would likely not have appeared or followed through with his application. The important factor here is having a skilled arbitrator appointed under an order in council who understands the system to administer the appropriate decisions based off previous case law and is accountable for their decisions.
Penalties for Not Meeting Timelines
Justice Cunningham also recommended new penalties for not meeting timelines. If this recommendation was in place, it would prevent Mr. Malin from being eligible for his claim much earlier, and the cost would be awarded much faster. With less wasted time on these cases, which have no merit or follow through from the Applicant, more time and money could be saved.
Overall, Malin and State Farm is a case that provides strong evidence and support of Justice Douglas Cunningham’s recommendations on the Ontario auto insurance dispute resolution system.
Case Citation: Malin and State Farm (FSCO A12-000108, July 4, 2014)
1. Clements v. Clements (2012) SCC 32 (CanLII)
Clements is the current authority on causation in Canadian personal injury cases. It indicates that the “but for” test is the appropriate test to determine causation. Clement’s effectively limits the use of “material contribution” test to cases with multiple negligent tortfeasors where the “but for” test is insufficient to determine which tortfeasor caused the damages.
Clements is a case involving a motorcycle accident whereby the defendant’s motorcycle crashed, seriously injuring his plaintiff passenger. A number of factors contributed to the accident. Most of the factors stemmed from the defendants negligence. Namely, the defendant was driving a motorcycle in wet weather and approximately 20km/h over the speed limit. The motorcycle was overloaded by approximately 100lbs. One factor was not related to the defendant’s negligence; a nail punctured rear tire of motorcycle. When the defendant accelerated the nail fell out, the rear tired deflated and the defendant lost control of the motorcycle.
The defendant’s negligence in speeding and in operating an overloaded motorcycle was not in dispute. The defendants took the position that it was the nail and not the other factors which caused the accident.
ii. Trial level – (2009) BCSC 112 (CanLII).
At the trial level the judge found that the plaintiff “through no fault of her own is unable to prove that ‘but for’ the defendant’s breaches, she would not have been injured”. The trial judge found that the plaintiff’s inability to prove causation using the “but for” test was to the limitations of the scientific reconstruction evidence.
The trial judge found that since it was impossible to determine the amount each factor contributed to the injury, the but for test should be replaced with the “material contribution” test. The defendant was found liable on the basis of the “material contribution” test. The defendant appealed.
- iii. Court of Appeal – (2010) BCCA 581, 12 B.C.L.R. (5th) 310.
On appeal the court set aside the judgment. The court found that the “but for” test was the appropriate test and set aside the judgment. The plaintiff appealed the decision to the Supreme Court.
- iv. Supreme Court (2012) SCC 32 (CanLII)
The Supreme Court clarified that the “material contribution” test will only apply in cases of multiple defendants where the plaintiff has proven that “but for” the negligence of one or more of said defendants, the damages would not have occurred.
- a. The current test for causation
McLachlin J. speaking for the majority, described the “but for” test as the ordinarily test for establishing causation. The Chief Justice reiterated that the plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred.
The “but for” test must be applied in a robust common sense fashion with no need for scientific evidence of the precise contribution of the defendant’s negligence to the injury. At paragraph 15, McLachlin recapped the law of causation as follows:
the basic rule of recovery for negligence is that the plaintiff must establish on a balance of probabilities that the defendant caused the plaintiff’s injury on the “but for” test. This is a factual determination. Exceptionally, however, courts have accepted that a plaintiff may be able to recovery on the basis of “material contribution to risk of injury”, without showing factual “but for” causation.
- b. The Material Contribution test
Justice McLachlin held that the correct application of the material contribution test requires the plaintiff to show that the defendant’s conduct materially contributed to the plaintiff’s risk of injury. In other words, it is not the injury itself that requires examination but the circumstances surrounding the increase in risk of injury.
- c. Review of the Canadian jurisprudence
In determining whether the material contribution test was appropriate in Clements, McLachlin J. reviewed the Supreme Court jurisdiction on the issue of material contribution. Of relevance is McLachlin J’s interpretation of Athey v. Leonati (1996) 3 S.C.R. 458 [Athey]. At paragraph 22 MacLachlin J. described Athey as follows:
The plaintiff who suffered from pre-existing back problems, suffered a herniated disc after two motor vehicle accidents. He sued the drivers of the motor vehicles in negligence for his injury. The trial judge held that although the accidents were “not the sole cause” of the disc herniation, they played “some causative role” (para. 8). She accordingly found the defendants liable for 25 percent of the plaintiff’s loss. In the Court of Appeal, the plaintiff sought to uphold the result on the basis of material contribution, but that court declined to consider the issue as it had not been raised at trial.
[The Supreme Court], per Major J., discussed the limitations of the “but for” test and the propriety of exceptionally using a material contribution test. Major J. emphasized that a robust common sense approach to the “but for” test permits an inference of “but for” causation from evidence that the defendant’s conduct was a significant factor in the injury, and concluded that “[t]he plaintiff must prove causation by meeting the ‘but for’ or material contribution test” (para. 41). Major J. concluded that the 25 percent contribution found by the trial judge was a “material contribution” sufficient to meet the “but for” test. The term “material contribution”, read in context, does not detract from the fact that the Court in the end applied a robust, common sense application of the “but for” test, in accordance with Snell.
At paragraph 28, McLachlin J. summarized the Canadian Supreme Court jurisprudence on material contribution as follows:
First, while accepting that it might be appropriate in “special circumstances”, the Court has never in fact applied a material contribution to risk test. Cook was analyzed on a reverse onus basis. Snell, Athey, Walker Estate and Resurfice were all resolved on a robust and common sense application of the “but for” test of causation. Nevertheless, the Court has acknowledged the difficulties of proof that multi-tortefeasor cases may pose – difficulties which in some cases may justify relaxing the requirement of “but for” causation and finding liability on a material contribution to risk approach.
- d. Review of the United Kingdom Jurisprudence
At paragraphs 30-32, the court reviewed the leading UK jurisdiction on causation and the material contribution test. McLachlin J. paid considerable consideration to the 2012 United Kingdom High Court decisions of Fairchild v. Glenhaven Funeral Services Ltd., (2002) UKHL 22 [Fairhcild], Baker v. Corus UK Ltd., (2006) UKHL 20 [Baker] and Sienkiewicz v. Greif (UK) Ltd., (2011) UKSC 10 [Sienkiewicz].
In Fairchild and Baker, the plaintiffs developed disease related to toxic workforce agents with multiple negligent tortfeasors exposing the plaintiff’s to asbestos. To determine causation, the courts applied the material contribution test as it was impossible to determine which of the defendants’ negligence exposed the plaintiff’s to the risks. In that situation, fairness and policy supported a relaxation of the “but for” test.
The Sienkiewicz decision is similar to Fairchild and Baker in that multiple sources of toxic agents which contributed to the plaintiff’s damages. However, Sienkiewicz pertained to the negligence of a single tortfeasor. The court in Sienkiewicz relied on the Fairchild and Baker precedents to apply the material contribution test. At paragraph 42 McLachlin J. differentiated the Sienkiewicz decision from Clements finding as follows:
The United Kingdom Supreme Court took the view that it was bound by precedent to apply a material contribution to risk approach in all mesothelioma cases. Several members of the court in Sienkiewicz noted the difficulty with such a result. Lady Hale observed (at para. 167) that she found it hard to believe that a defendant .whose wrongful exposure might or might not have led to the disease would be liable in full for the consequences even if it was more likely than not that some other cause was to blame (let alone that it was not more likely than not that he was to blame).. In my view, nothing compels a similar result in Canada, and thus far, although Sopinka J.’s remarks in Snell (quoted above at para. 20) do not preclude it, courts in Canada have not applied a material contribution to risk test in a case with a single tortfeasor.
In Nayar, the court followed the precedent established in Guiliani v. Saville to find that a plaintiff who put his hands on the hood of the defendant’s vehicle was not contributory negligent when the defendant accelerated and hit the plaintiff.
The facts as accepted by the court were as follows. The plaintiff was a gas station attendant who followed the defendant as she was slowly driving away without paying for gas. The plaintiff was under the impression that the defendant simply forgot to pay. The plaintiff put himself in front of the defendant’s vehicle with his palms out. The defendant began revving the engine of her vehicle and inching it towards the plaintiff. The plaintiff then proceeded to place his hands on the hood of the defendant’s vehicle. The defendant accelerated, hitting the plaintiff in knee.
The court acknowledged that the plaintiff was reckless in placing himself in front of the defendant’s vehicle and putting his hands on the hood. However, the court found that the defendant was entirely to blame for the incident
At paragraph 33 the court found that:
[The defendant] was there to be seen, as was the plaintiff. It was not reasonably foreseeable that [the defendant] would drive into [the plaintiff].
It follows that the plaintiff may not be found contributory negligent applies even if the plaintiff puts his hands on the defendant’s vehicle and even if the defendant acts in a matter that indicates that she will accelerate.
In Guiliani the British Columbia Court of Appeal found that the plaintiff standing in the middle of the road, in the path of the defendant’s approaching vehicle was not contributory negligent when the defendant’s vehicle collided with the plaintiff.
The plaintiff Guiliani and his friends were driving past the defendant when the defendant “gave them the finger”. An invitation to fight ensued and the defendant escaped by getting into his vehicle and speeding off. The plaintiff proceeded to stand in the roadway waiting for the defendant to return. The court accepted that the plaintiff was standing in the roadway in order to identify the defendant when he returns and to take down the defendant’s license plate number.
When the defendant finally returned, he was approaching the plaintiff at an accelerated speed. The plaintiff continued to stand in the roadway despite having ample opportunity to get out of the way of the defendant’s vehicle. The trial judge accepted the evidence that the plaintiff did not move until the car was virtually upon him and it was too late to get out of the way.
The trial judge found that the plaintiff was 30% responsible for his injuries. The court of appeal reversed the finding of contributory negligence. At paragraph 10, it held that the trial judge reached her conclusion:
“without regard for the flagrant and almost unforeseeable conduct of the defendants and without regard for the fact that the defendant had ample room to steer clear of the plaintiff.”
The court rejected the submission that having regard to the previous altercation between the parties the plaintiff should have known that standing in the path of the defendant’s vehicle was particularly dangerous.
At paragraph 11, the court stated that:
the plaintiff could see the defendant coming but it was not reasonably foreseeable that the defendant, who could see him equally well, would continue to drive towards him at an accelerated speed.