Fridays With Rogers Partners

Our firm is regularly keeping in touch with each other by videoconference. We had our usual Friday “muffin meeting” this morning, and all of our lawyers and students participated.

Along with having a group chat on the best ways to use videoconferencing for mediations and discoveries, we discussed a decision involving the limitation period for uninsured automobile claims and a decision addressing what constitutes “economic loss” for calculating attendant care benefits.

Limitation Period for Uninsured Automobile Claims

Matthew Umbrio addressed the case of Sarokin v. Zhang, 2020 ONSC 1839. The plaintiffs, the owner/operator of a motor vehicle and his passenger, were involved in a rear-end accident in 2014. They brought a motion to seek leave to amend the statement of claim to include their own auto insurer almost six years after the accident occurred.

Following the accident in 2014, plaintiff’s counsel filed applications with TD for accident benefits on behalf of both the plaintiffs.

Counsel also inquired with Desjardins, the purported insurer for the defendant responsible for the accident, only to be told that his insurance had been cancelled two months before the accident. The defendant had also left Canada and never returned; he was noted in default at a later date and was not involved in the proceedings.

Plaintiff’s counsel sent notice letters to TD in 2014 advising of their intention to commence an action against TD pursuant to the OPCF-44R Family Protection Endorsement due to the uninsured status of the defendant. TD confirmed this coverage that same month. The plaintiffs initiated this claim in 2016 as against only the defendant uninsured motorist.

In late 2018, plaintiff’s counsel provided the statement of claim to TD along with the previously provided notice letters and made a request for indemnification. The adjuster responded that TD would not engage in settlement discussions until they had been added as a party.

Master McGraw was asked to decide when the limitation period begins to run on an insured’s indemnity claim against their own insurer and whether discoverability and due diligence considerations apply in these circumstances.

Master McGraw held, in accordance with the prevailing appellate jurisprudence, that the limitation period only begins to run the day after the plaintiff makes a formal request for indemnification from the insurer.

This is because only once a legally valid claim for indemnification under the OPCF-44R endorsement has be asserted does the insurer have a legal obligation to respond to it.

The claimant for indemnity suffers a loss from the moment the insurer can be said to have failed to satisfy its legal obligation; therefore, the claimant suffers a loss caused by the uninsured coverage insurer’s omission in failing to satisfy the claim.

As a result, a claim for breach of contract would only arise the first day after that request for indemnification is made. As that formal request was made in late 2018, the two year limitation period had yet to expire.

The insurer argued in response that the plaintiffs had failed to exercise sufficient due diligence and that, based on this failure, the motion should be dismissed. The plaintiffs claimed that they had acted timely.

Master McGraw disagreed with both parties, holding that there were triable issues with respect to discoverability and due diligence, and rather than making a determination on them with a limited record before him, he decided to grant leave to the plaintiffs to amend their claim.

Once amended, the insurer can advance a discoverability and due diligence defence in their statement of defence and the plaintiffs can provide their arguments with respect to same in their reply materials.

As a result, the plaintiffs’ motion to add the insurer was granted.

Economic Loss in Attendant Care Claims

Ankita Abraham discussed the License Appeal Tribunal decision of Y. K. v. Aviva General Insurance Company, 2020 ONLAT 18-003926/AABS. The Tribunal was asked to consider a number of issues, including the definition of “economic loss” for the purpose of attendant care benefits.

The claim arose out of a September 2011 motor vehicle accident, where the claimant was hit by a vehicle while riding his bicycle. The claimant suffered significant injuries, including a severe and traumatic brain injury, fractured skull and left shoulder, and a ruptured spleen and liver.

Within a few months of the accident, the claimant was designated catastrophically impaired and was later approved for an attendant care benefit in the amount of $6,000 per month. The claimant’s brother left his multiple part-time jobs to provide attendant care as a non-professional service provider.

In July 2017, the claimant was advised by his insurer that his attendant care benefits would be deceased due to the February 2014 amendments to the Statutory Accident Benefits Schedule-Effective September 1, 2010. These amendments limit the obligation to pay a non-professional service provider to an amount equal to the provider’s economic loss.

The claimant argued that the insurer was applying “a restrictive, underinclusive definition of ‘economic loss’”, and that the definition of “economic loss” should include compensation for loss of job opportunities, loss of fringe benefits, and expenses relating to providing attendant care such as expenses relating to utility expenditures, grocery bills, and travel expenses.

The adjudicator, upon reviewing the case law, confirmed that “economic loss” is fact-specific and largely dependent on the parties’ evidence. “Economic loss” could include financial losses associated with foregoing promotions , wage increases, and the ability to accept other jobs, as well as a loss of fringe benefits.

In addition, the adjudicator said that, although CPP and EI payouts may not be received until the future, the loss of contributions made toward those plans during the time the care is being
provided should be considered an “economic loss”. However, this type of “economic loss” is only realized when the attendant care benefits are claimed as income and contributions are made to CPP and EI.

The adjudicator also noted that “economic loss” could also include various expenses which are paid as a result of providing attendant care.

However, the claimant failed to provide proper evidentiary foundation for the amounts sought. As such, the adjudicator found that the claimant was only entitled to $2,100 per month, which was based solely on his brother’s lost wages.