In the recent WSIAT decision of Mackie Moving re: Dhuga, the claimant elected to receive accident benefits following a motor vehicle accident that occurred in the course of his employment. The insurer took issue with the claimant’s election and challenged it by way of a section 31 Application to WSIB. A critical issue faced in the application surrounded the question of whether the claimant was a “worker” of a Schedule 1 employer or whether he was an “independent operator”. The tribunal applied a flexible and multifactorial approach consistent with prior tribunal and court decisions in determining that he was indeed a “worker”. As such, the claimant was entitled to benefits under the WSIA and his right of action against the insurer was removed.
The main issue in contention was whether the applicant is statute barred from proceeding to mediation and then arbitration in respect of his claims for specified benefits and transportation expenses on the basis that he failed to dispute Certas’ termination and denial of certain benefits within the two year limitation provided for in both the Insurance Act and Schedule. The Applicant attempted to use equity as an argument to further his position. The Arbitrator rejected this and stated that the issue is instead a question of law, and an arbitrator does not have discretion to apply equitable principles to alter the result reached by application of the rules of statutory interpretation. It was determined that the Applicant is precluded from proceeding to arbitration in respect of the vast majority of his claims. A small exception was carved out for certain medical and rehabilitation benefits and an examination expense. Certas met the necessary test for most claims, which, according to Section 49 of the Schedule, and as interpreted in Smith v. Co-operators requires establishing on a balance of probabilities that it gave the Applicant unequivocal notice that it was terminating or denying the benefits claimed, together with reasons. Furthermore, it was found that Certas complied with the requirement that the elements of the dispute resolution process must be given in a “straight forward and clear language directed towards an unsophisticated person.” The Applicant was barred from pursuing the arbitration.
The question of whether an assault on a driver is an intervening act that breaks the chain of causation was considered by the arbitrator. The arbitrator ultimately followed previous decisions in concluding that an assault on a taxi driver while operating a cab is an intervening act that breaks the chain of causation. The arbitrator further found that although the applicant’s husband was using the automobile for an ordinary purpose when he was injured, the injuries suffered were not considered to be part of the risk created by the use or operation of a taxi, and thus, he did not sustain an impairment as a result of an “accident” as defined in section 2(1) of the Schedule.
In Allstate Insurance Company v. Kingsway General Insurance Company and CAA Insurance Company the issue was whether the Applicant was a “deemed named insured” under Allstate’s policy. The driver/claimant was the grandson of Allstate’s insured and his mother was a listed driver under that policy. Kingsway and CAA argued that the Applicant was a “deemed named insured” under Allstate’s policy as the vehicle was purchased for the mother’s use and the mother was the de facto insured. In finding the Applicant not to be a “deemed named insured” under the Allstate policy, the Arbitrator was not persuaded that Allstate or its agent was aware or ought to have been aware of the situation to an extent which warranted an assignment of the Applicant as the named insured.
The Applicant, Mr. Mackenize was injured in a motor vehicle accident on September 25, 2005. He applied for and received statutory accident benefits from RSA payable under the Schedule. The issue in contention was whether Mr. Mackenzie was entitled to an Order excluding various medical reports and prohibiting medical experts from giving evidence at the arbitration hearing scheduled to commence in November, 2007, on the basis that such medical examinations were not authorized by section 42 of the Schedule, as the insurer had already made a determination as to the scope of Mr. Mackenzie’s injuries months earlier, and the insurer had already terminated benefits. Mr. Mackenzie also argued that the section 42 assessments were unreasonably sought for the purpose of bolstering the insurer’s case. Mr. Mackenzie further argued that once an insurer makes a determination respecting entitlement it must hold to that position, in particular the reasons for the determination, and it should not re-assess that position in light of new information about the claimant’s condition unless it reinstates benefits. In disagreement with this position, Arbitrator Muir found that the right or obligation to continue to assess the claim is an ongoing obligation that subsists beyond the termination of benefits and an application for mediation brought by an insured person. Furthermore, that RSA’s request to compel assessment of Mr. Mackenzie for the purposes of determining his entitlement to a benefit was reasonable and necessary. Therefore, Mr. Mackenzie was not found to be entitled to the relief sought.
