Where are the bottlenecks?
Ontario court rejects well-established rules for interpreting insurance policy exclusions
Is the speed limit going up? Is it safe? Key questions arising from government announcements
Roadblocks ahead for Alberta drivers trying to get insurance: industry professionals
[1] The plaintiffs have filed 15 proposed class actions against 15 different Ontario auto insurers for failing to comply with the bulletins and guidelines issued by the Financial Services Commission of Ontario (“FSCO”) relating to the inclusion of HST in the calculation of benefits under the SABS.
[2] The FSCO’s bulletins and guidelines apparently made clear that the payment of HST was the responsibility of the insurer and was not to be deducted from any caps or benefits payable under the SABS. The plaintiffs say the defendant insurers ignored these bulletins and guidelines and included HST amounts in the calculation of benefits payable under the SABS.
[3] The plaintiffs also sue the FSCO defendants in identical fashion in each of these 15 actions alleging that Messrs. Philip Howell and Brian Mills, the former and current FSCO superintendents, failed to ensure that the insurers complied with the FSCO bulletins and guidelines.
[]
[7] The Crown says the Ralston Notice about the FSCO defendants was sufficient for the launching of the first action, Mieyette, but not for the other 14 actions. In particular, argues the Crown, because it did not receive notice of the actual names of the other 14 claimants (i.e. the other 14 proposed representative plaintiffs), the other 14 actions are nullities.
[]
[22] The motion is dismissed. The “other 14 actions” are not nullities and may proceed.
[23] I asked counsel at the hearing of the motion to provide me with their costs request if their side were successful. The defendants would have requested $5000; the plaintiffs would have requested $4000. The plaintiffs have prevailed on this motion. Costs are fixed at $4000, payable forthwith by the defendants to the plaintiffs.
[14] Dealing firstly with the timing of the report, s. 64(1) of Regulation 222/98 specifically provides that a report not provided to the Director that is provided to the Tribunal “shall” be considered by the Tribunal if it relates to the Appellant’s condition at the effective date of the Director’s decision and if it is submitted in a timely manner.
[15] The wording in s. 64(1) and the decision of this Court in Jemiolo v. Director of the Ontario Disability Support Program (2009), 2009 CanLII 9420 (ON SCDC), 248 O.A.C. 77 (Div. Ct.) state that even a report prepared after the decision of the Director “shall be considered by the Tribunal” if the stated conditions are met. Here, the psychiatrist’s report, although prepared about four months after the Director’s decision, relates to the Appellant’s ongoing condition stating that the Appellant’s condition has been ongoing “for approximately five years”. Thereby, it meets the conditions of s. 64(1). As a result, the Tribunal unreasonably erred in law when it decided not to accept the psychiatrist’s report as relevant because he “did not see the Appellant at the time of the Director’s decision”.
[16] As well, we find that the Tribunal’s finding that there was no evidence of S1 nerve root impingement was not reasonable considering the evidence of S1 nerve root effect on an MRI. The Tribunal stated that the imaging does not confirm “impingement”. However, the imaging report of January 16, 2017 states: “Disc protrusion and minimally indents the anterior thecal sac as well as the anteromedial margin of the right and left S1 nerve roots as they exit the thecal sac”. The interpretation of this imaging result is within the psychiatrist’s expertise with respect to his physical condition as he is trained as a medical doctor.
[17] We note, as well, that the opinion of the psychiatrist with respect to his physical conditions was in keeping with that of Doctors Lentini, a physical medicine specialist, and Bidari, the family doctor.
[18] Thirdly, we find that the Tribunal erred in failing to consider the psychiatric analysis of the psychiatrist and the family doctor’s evidence relating to the Appellant’s depression. In this case, the Tribunal never dealt with the medical opinions relating to depression. That is an error of law.
[19] The above is sufficient to allow this appeal. However, and although we do not make these findings, we express concern that the Tribunal might have interpreted the applicable statutory provision incorrectly.