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.

D.M. v. Royal Sun Alliance Insurance (18-003146)

The claimant sought reconsideration of the Tribunal’s decision that it could not adjudicate or enforce a purported full and final settlement. Vice Chair Hunter granted the reconsideration and held that the Tribunal did have a more robust jurisdiction under the Insurance Act than simply deciding entitlement to benefits. Whether an accident benefits settlement had been reached fell within the Tribunal’s jurisdiction.

W.M. v. Economical Mutual Insurance Company (18-010752)

The claimant sought to dispute various accident benefits; the insurer argued that the claimant had entered into a binding settlement. Adjudicator Watt concluded that the claimant had entered into a binding settlement. He held that the evidence was clear that the intentions of the parties was a full and final release of all benefits claimed rather than a partial settlement. He held that there was no evidence of a capacity issue. Finally, he wrote that the Tribunal did not have equitable jurisdiction to enforce rescission of the settlement had it been unconscionable.

J.R. v. CAA Insurance (17-008693)

Following a full and final settlement of the claim, the claimant sought further payment for a treatment plan that had been in dispute as part of the initial LAT application. She had not rescinded the settlement within the two day cooling off period. Vice Chair Flude concluded that the settlement amount included the payment of the disputed treatment plan, and that the claimant was not entitled to additional payment of that same treatment plan. He reviewed the language of the SDN and the Release, which made clear that the settlement was for all present and future accident benefits claims.

N.K. v. Certas Home and Auto Insurance (17-004337 and 17-004343)

The claimant, represented by counsel, entered into a settlement agreement with respect to LAT applications for disputed entitlement to various benefits. The claimant executed a full and final release and a settlement disclosure notice, and the LAT was notified that the claimant was withdrawing his applications. The claimant subsequently informed the LAT that he wished to stop the settlement process and that he no longer wished for his legal counsel to represent him. He sought to have the settlement set aside on the basis that it was improvident as he was placed under duress and lacked capacity to understand and consider the settlement documents due to mental illness. Adjudicator Maedel held the claimant was statute barred from rescinding the settlement. The claimant failed to establish that he lacked mental capacity to enter into the settlement, or that he was placed under duress at the material time. The settlement was valid and the claimant failed to rescind it within the two business day cooling off period.

S.T. v. Wawanesa Mutual Insurance Company (17-003874)

The insurer sought production of the settlement documents from an earlier accident the claimant was involved in. Adjudicator Neilson ordered the records produced. She held that it was relevant to the current dispute what the claimant was paid in her earlier claim, and how the benefits were allocated. She noted that there was no evidence that the earlier claim was settled as part of litigation, so no settlement privilege applied. However, even if settlement privilege had applied, she wrote that the public policy against double recovery or overcompensation would require the claimant to produce the settlement disclosure notice.

I.R. v. Allstate Insurance Company (17-003304)

The claimant sought to enforce a purported settlement with the insurer. The insurer resisted the claim and asserted that a Settlement Disclosure Notice was not signed. On review of FSCO jurisprudence, Adjudicator Christopher Ferguson adopted the reasoning and determined that a SDN is necessary for a binding settlement. The claimant’s claim was dismissed.