Grace Tsang, BridgePoint Financial Services | December 10, 2013 | Posted in Commentary
On November 28, 2013, a delegate in the Office of the Director of Arbitrations ordered that the Arbitrator's decision in Scarlett v. Belair Insurance be rescinded1. BridgePoint had reported on the Arbitrator's March 26, 2013, decision as it found that the insured was entitled to seek benefits beyond the Minor Injury Guideline ("MIG") limit because "[w]hen the totality of his injuries is assessed, they come outside of the MIG." A copy of BridgePoint's March 26,2013 blog post on this decision can be found here.
In the appellate decision, the delegate found that the Arbitrator had made several errors in his decision, including the following:
"I find that the burden of proof is thus on the insured to show that the MIG does not apply. While the insurer is then given an opportunity under s. 38(12) to have the person assessed to see if the MIG applies, that does not change the ultimate burden of proof."
The delegate did find that the sufficiency of proof may shift depending on the circumstances, but does not shift simply because the insurer challenges the characterization of an injury.
In a twist, rather than ordering a further preliminary issue hearing by another arbitrator, the delegate ordered a new full hearing as Mr. Scarlett had other claims that were not subject to the MIG and it would be more efficient to address all issues at once. It will be interesting to see if the delegate's decision will be subject to a further appeal in the new year.review
1Scarlett v. Belair Insurance Company Inc. (FSCO Appeal P13-00014)
We contribute blog entries regarding recent news, court decisions, articles, events and our commentary on relevant developments.
To receive a notification of news items, sign up to our mailing list.sign up
NATIONWIDE LENDING SERVICES available in Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland & Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, Prince Edward Island, Yukon Territory. PLAINTIFF LENDING SERVICES are commonly referred to as Settlement Loans, Personal Injury Loans, Lawsuit Loans, Pre-settlement Loans, Litigation Loans, Litigation Lending, Personal Injury Funding, Personal Injury Advances, Law Firm Loans, Law Firm Financing, Law Firm Funding, Legal Funding, Legal Loans, Legal Financing, Litigation Funding, Litigation Financing, Settlement Advances, Settlement Financing. BridgePoint Financial Services provides innovative financing and risk management solutions for the Canadian market (Canada).