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Update on Scarlett v. Belair

Bob LaBrecque, BridgePoint Financial Services | July 27, 2015 | Posted in Commentary

This is an update on the continuing saga of Scarlett v. Belair. We had previously written about this action in 2013 with respect to the Arbitrator’s and Director’s Delegate decisions. In 2013, the Arbitrator had narrowly interpreted the application of the Minor Injury Guidelines (“MIG”). By way of background, the MIG limits the medical/rehabilitation amount available to individuals injured in a motor vehicle accident to $3,500.00 unless they have a fracture, full thickness soft tissue tear, or are catastrophically impaired.

The Arbitrator found that the applicant insured was not subject to the MIG because he had pre-existing conditions and suffered, in addition to the soft tissue injuries, psychological impairments as a result of the motor vehicle accident. The Arbitrator felt that the insurer had failed to meet its onus of proving that the insured fell within the MIG and disregarded evidence to the contrary as to the severity of the insured’s injuries. The Director’s Delegate subsequently overturned the Arbitrator’s decision and remitted the matter back to arbitration. As a result, the applicant insured sought a judicial review of the Director’s Delegate’s decision. On June 5, 2015, the Divisional Court upheld in the Director’s Delegate’s decision (Scarlett v Belair, 2015 ONSC 3635 (Div. Crt.)) and ordered the matter for a new arbitration.

The Divisional Court’s decision, unfortunately, continues to dismiss the concept that individuals who are involved in an injury related motor vehicle accident may need psychological treatment, vocational support, pain management, social work intervention, physio therapy and other related services totalling over the $3,500.00 benefit limit.

What this decision does not dismiss is the obligation on the part of the injured party that he/she must mitigate his/her loss by pursuing the treatment he/she needs to recover. A significant component of the tort claim against an “at fault” defendant pertains to the cost of future medical/rehab care and services. This claim is weakened where an injured party has failed or ceased to access such services in the interim – whether due to a denial of first party benefits or otherwise – due to the interpretation that such services are no longer required. Where the injured party pursues all reasonable measures available to access the services, via publicly funded options or where necessary through third party treatment financing, not only do they receive the therapeutic benefits of the services provided and fulfill their duty to mitigate their damages, the future needs portion of the claim is further validated.

The consideration of a third party treatment financing needs a careful and conservative review of the benefits and costs relative to the overall value of the claim, the timing and budget of the treatment being pursued and the collection of the necessary documentation to make the strongest case possible for the recovery of financing costs from a defendant. In addition, the defendant should be put on notice that third party treatment financing will be sought in the event that no advance will be made by the defendant for treatment and the plaintiff will seek to recover the financing costs of such a loan from the defendant. Such notice should include the financing costs whether it be in the form of a term sheet or some other document. Under the current and future Statutory Accident Benefit reductions, treatment providers and lawyers have to develop a broader and more aggressive attitude towards the shared responsibility of ensuring that injured parties receive the treatment and rehabilitation required regardless of the insurer’s commitment to pay.

We will continue to monitor Scarlett v. Belair and report on any updates if and when they become available.

To review the Divisional Court’s decision, please click here.

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