Category: Settlement

TD General Insurance Company v. Duff-Foley (Estate) (2023 ONSC 2400)

The insurer appealed the Tribunal’s decision that the settlement between the insurer was valid and enforceable. The claimant died 10 days after settling her tort and AB claims for $957,000, with 60 percent to be structured. The 60 percent was returned to the insurer based on the reversion; however, the claimant’s estate took the position it was entitled to keep the 40 percent. The insurer disagreed, and argued that there was no valid settlement because the claimant died prior to agreement on the structure percentage. The Court dismissed the appeal, holding that the Tribunal applied the correct legal test. Further, the Court wrote that the claimant’s lawyer had authority to negotiate the settlement, and the executor of the estate could execute the agreement by signing the necessary documents.

Nagarajah v. TD Insurance Company (21-009034)

The claimant signed an SDN and Release on September 6, 2012 in relation to certain accident benefits, but not the entire claim (i.e. a partial release). The claimant alleged that the settlement he entered into was not a full and final settlement. He argued that the settlement was not governed by Regulation 664 or alternatively, that the settlement was not valid due to non-compliance by the insurer. However, he did not provide adequate notice to the insurer that he was rescinding the settlement within two business days of its execution as was required under the SDN, nor did he repay any of the settlement funds. Adjudicator Reilly stated that the burden of proof lay with the claimant, as it was the claimant who was seeking to invalidate the settlement. She rejected the claimant’s argument that the SDN was not governed by Regulation 664 because the settlement did not settle his IRBs and medical benefits on a full and final basis. She held that the SABS provided that a settlement described a final disposition of a claim to one or more benefits and did not require all benefits to be settled on a final basis. Adjudicator Reilly held that the insurer had complied with Regulation 664 as it had clearly indicated how and when the claimant would be able to rescind the settlement. Finally, she found that the claimant could not apply to the LAT for benefits that were settled without rescinding the settlement and repaying the settlement funds. Adjudicator Reilly declared the settlement valid and dismissed the claimant’s application.

Muir v. Wawanesa Insurance (19-000604)

The claimant sought to set aside his settlement agreement of $400,000 from 2007 because there had been no “meeting of the minds”. S. 9.1 of the SABS requires a claimant to return any money received as consideration for the settlement prior to rescinding a settlement or applying to the LAT. The insurer argued that the issues raised by the claimant regarding the validity of the agreement could not be considered until compliance with s. 9.1 was ensured. The insurer relied on a previous Motion Order from Vice-Chair Terry Hunter, where the parties had agreed that compliance with s. 9.1 was the preliminary issue and that the additional issues raised by the claimant would be heard at a further preliminary issue hearing. Adjudicator Stephanie Kepman agreed with Vice-Chair Hunter’s finding and solely considered whether the applicant had complied with s. 9.1. The claimant alleged that he had never received the settlement funds but failed to produce any evidence to support this claim. Adjudicator Kepman held that the claimant had failed to demonstrate that he had complied with s. 9.1 and stated that the application was barred until he repaid the settlement funds.

The Estate of [K.D.F.] v. TD General Insurance Company (20-012047)

The claimant was involved in motor vehicle accidents in 2015 and 2016. At a global mediation on September 1, 2020, the claimant and insurer came to terms regarding a settlement for both accidents. Minutes of Settlement were drafted by the mediator and circulated to the parties. The AB claim related to the 2015 accident was resolved for $3,700.00. The AB claim related to the 2016 accident was resolved for $957,000.00. The plaintiff was obligated to structure at least 60 percent of the settlement amount. The insurer was to purchase a reversion of the structure to age 60. The claimant passed away on September 11, 2020, prior to executing settlement documents. Between the mediation and the date of her passing, the parties were finalizing details of how the settlement would be structured. The claimant’s sister was appointed Litigation Administrator for the claimant’s estate on October 1, 2020. The insurer took the position that there was no enforceable settlement between the parties, as the essential terms of the Minutes of Settlement (chiefly, direction on how the settlement was to be structured and the signing of the Release and SDN) were not completed by the claimant herself. The deceased claimant’s Estate submitted a LAT application, arguing that the settlement was not contingent on the claimant personally signing the Release and neither issue raised by the insurer was an essential term of the settlement agreement. At the hearing, the Estate sought payment of the 40 percent of the settlement that was not subject to the structure or reversionary interest. Vice-Chair Boyce agreed with the Estate, finding the parties entered into a binding settlement agreement which entitled the Estate to 40 percent of the agreed upon settlement. Vice-Chair Boyce found that the fact that the SDN and Release were not signed by the claimant herself did not negate the validity or enforceability of the settlement between the parties. Vice-Chair Boyce held: “While s. 9.1 of O. Reg. 664 requires an SDN be executed for an accident benefits settlement to be enforceable, an SDN is not for the benefit of the insurer and the Regulation does not provide that the Estate of a deceased claimant is prevented from signing an SDN.”

Kosiner v. Economical Insurance Company (19-007787)

This is a reconsideration decision. The claimant was self-represented. He attended the case conference and settled his file with Economical, which was confirmed in writing. Over one year later, the claimant filed a Notice of Motion to set aside the settlement and raised issue with the fact that Economical would not renew his insurance policy. In the original decision, the adjudicator held that the settlement was binding, that the Tribunal did not have jurisdiction to decide matters related to the renewal of the insurance policy, and dismissed the claimant’s appeal. The adjudicator also noted that the claimant had not returned the settlement funds. On reconsideration, the adjudicator dismissed the claimant’s reconsideration applicating noting that there was no basis to set aside the original decision.

C.M. v. Intact Insurance Company (20-001049)

The claimant was involved in a motorcycle accident in 2013. In 2015 she signed a Settlement Disclosure Notice and Full and Final Release settling her claim for accident benefits. The claimant did not have legal representation when she signed the settlement documents. In 2017 the claimant submitted to the insurer an OCF-19 application for determination of catastrophic impairment, which was denied based on the full and final settlement agreement. The claimant applied to the LAT in 2020 seeking CAT determination. A preliminary issues hearing was held to determine whether she was barred from proceeding with her claim because she had entered into a valid settlement agreement. The self-represented claimant argued that the settlement was unfair because she was not mentally or physically fit when she entered into the settlement agreement. Adjudicator Paluch found that the settlement documents were fully compliant with the settlement regulation, and the claimant failed to establish that she was under duress or lacked the mental capacity to enter into the settlement agreement at the time the agreement was finalized. The application was dismissed.

V.G. v. Western Assurance Company (18-005817)

The 20 year old claimant was involved in an accident in 2014, suffering various orthopaedic injuries and a head injury. He entered a full and final settlement in April 2016. In June 2016, he underwent a capacity assessment, and the assessor concluded that the claimant lacked capacity. Based on the assessment, the claimant through counsel requested that the settlement be set aside; the insurer refused. Adjudicator John concluded that the claimant failed to prove that he did not have capacity when he entered into the settlement, so the settlement was valid. The medical evidence submitted did not override the legislative presumption that a person has capacity. The insurer submitted numerous medical records from the period leading up to the settlement that showed the claimant demonstrated appropriate cognitive function, including vocational assessments, neuropsychological testing, and occupational therapy assessments. The claimant’s ongoing problems (fatigue, irritability, depressed mood, forgetfulness, poor concentration, and poor memory) did not impact his ability to understand the implications of signing the settlement agreement. It was also noted that the claimant was represented by counsel during the settlement negotiations and cooling off period, and no objections were raised at that time.

M.R. v. Allstate Insurance Company of Canada (18-012729)

The claimant was involved in multiple accidents between 1991 and 2003. A preliminary hearing was held in relation to benefits claimed following a September 1996 accident and whether certain disputed benefits were captured by various releases signed by the claimant. The claimant sought entitlement to ACBs, HK expenses, transportation expenses, and home modifications. In addition to the settlement issue, the insurer argued that the claimant was time-barred from pursuing the home modifications. Adjudicator Kowal held that the releases signed by the claimant covered all ACBs and HK expenses, and all transportation expenses up to 2016. The home modification was not captured by the release because it was considered a rehabilitation benefit, which was not covered by any of the releases. The limitation period did not apply to the claim for home modification. The insurer denied one submission for home modification in 2010, but the denial was unclear as the insurer included a list of things it would pay for, but did not state which modifications were denied. Further, the claimant submitted a new proposal for home modification in October 2017, which was considered a new application for the benefit. The insurer initially agreed to pay for the entire treatment plan, and then retracted the approval. While the insurer’s response was not clear and unequivocal, the claimant applied to the LAT less than two years after submission of the treatment plan, so the limitation period did not apply regardless.

N.P. v. Western Assurance Company (19-012841)

The claimant sustained a significant impairment as a result of an accident on November 24, 2013. The insurer accepted that the claimant was catastrophically impaired on February 24, 2014. The insurer denied ACBs and HK expenses on May 23, 2014. The claimant disputed entitlement in a FSCO arbitration, and the benefits were settled via a “Partial Final Release” on July 1, 2016. Notably, the partial settlement governed entitlement to ACBs and HKs “only to June 28, 2016”. On October 30, 2019, the claimant submitted a OCF-18 in the amount of $1,459.16 for an in-home assessment, which was denied by the insurer, who argued that the issue was statute barred pursuant to s. 56 of the SABS as per their May 23, 2013 denial. Adjudicator Boyce ruled that the OCF-18 was payable, as the settlement of the issues specifically noted that it only covered ACBs and HK expenses “only to June 28, 2016”, and did not indicate that by signing the release that the claimant was abandoning any future claim for ACBs or that she was barred from seeking re-assessment for the same in the future. He also noted that the claimant had litigated the denial in the past with a FSCO dispute, showing clear intent to dispute the issue. Furthermore, the insurer did not provide the claimant with an SDN and even noted in an email dated June 29, 2016 that “Since this is a partial settlement, there will be no Settlement Disclosure Notice”, indicating to Adjudicator Boyce that, as a catastrophically impaired insured, the claimant would be free to pursue future entitlement to ACBs and HKBs in the future as her circumstances and condition changed.

J.N. v Co-Operators General Insurance Company (18-012227)

The claimant submitted a LAT Application in August 2017 disputing attendant care benefits, among other benefits. The parties resolved the issues in dispute and entered into a partial settlement agreement. In 2018, the claimant filed a second LAT Application disputing entitlement to attendant care benefits. The insurer brought this preliminary issue hearing, arguing that the claimant was barred from pursuing his claim for attendant care benefits in this 2018 Application as a result of the release and partial settlement disclosure notice arising from the 2017 Application. The claimant argued that he did not settle his entitlement to attendant care benefits beyond two years from the date of the accident, and thus, the settlement following the 2017 Application did not preclude him from proceeding with the 2018 Application. Vice Chair Marzinotto did not accept the claimant’s argument, noting that the 2017 Application indicated that the claimant was claiming attendant care benefits on an “ongoing” basis and that the settlement documents clearly referred to “any and all claims for attendant care benefits from July 5, 2016 to date and ongoing”. As such, Vice Chair Marzinotto dismissed the application.