Canada: Assessments Payable, Even Though Medical And Rehabilitation Limits Were Exhausted

On May 4, 2015, Director's Delegate Blackman released his decision in Cook and RBC[1], which deals with the payment of catastrophic ("CAT") assessments under the Statutory Accident Benefits Schedule—Effective September 1, 2010[2] ("2010 SABS").

In this case, the Applicant brought a Motion for an Order that the Insurer pay him $12,960.00 for CAT assessments. Arbitrator Mutch found that the funding of a rebuttal CAT assessment was most properly characterized as an interim expense rather than an interim benefit. Although an award of interim expenses of at least some of the claimed expense was warranted, Arbitrator Mutch found that he was prevented from ordering payment by Sections 18(3) and 18(5) of the 2010 SABS. Subsection 18(5) placed the Applicant under the $50,000.00 cap for both treatment and assessments in non-catastrophic cases, which had been exhausted.

Director's Delegate Blackman agreed with the Insurer that the $50,000.00 cap extended beyond strictly medical and rehabilitation expenses. However, Section 18(5) did not cover all fees and expenses for conducting assessments and examinations preparing reports. Rather, there were two general qualifications:

  1. the fee or expense is in connection with any benefit or payment; and,
  2. the benefit or payment is under this Regulation, meaning the 2010 SABS. [emphasis in original]

Director's Delegate Blackman noted that catastrophic impairment, by itself, is a threshold, not a benefit. As the Insurer argued, the appeal did not determine catastrophic impairment. Rather, the Applicant claimed payment under Section 25(1)(5) of the 2010 SABS for the costs of assessments for preparing a Section 45 CAT Application. However, the fee or expense sought was still for a threshold determination, not in connection with any benefit or payment. Accordingly, Sections 18(3) and 18(5) did not apply.

Director's Delegate Blackman stated:

Without giving reasons, the Arbitrator presumed that subsections 18(3) and (5) applied to reports and assessments regarding CAT determinations. The Arbitrator gave a very good reason why those provisions should not apply, namely, that in this case "the very question of whether [Mr. Cook] can claim more than the $50,000 in medical and rehabilitation benefits hangs in the balance." I am persuaded that the Arbitrator erred in not following his own reasoning.

I am also persuaded that the Arbitrator erred in law in applying subsections 18(3) and (5) to an award of interim legal expenses under subsection 282(11.1) of the Insurance Act. A provision of the Insurance Act is clearly not under "this Regulation" which, as noted, means the 2010 Schedule.

Director's Delegate Blackman found that by limiting Section 18(5) to any benefit or payment "under this Regulation", the provision excluded payment of legal expenses under the separate and superior Insurance Act[3]. Director's Delegate Blackman did not accept that the expenses needed to be "incurred"; a prerequisite of "incurred" conflicted with the Bernicky criterion that the insured person was "unable to carry the expenses claimed". Even if the expenses needed to be "incurred", it was sufficient if the reasonable necessity of the service or item and the amount of the expenditure were determined with certainty.

Arbitrator Mutch noted that the Insurer had done a thorough CAT assessment and thought that a responding report for the Applicant was a reasonable and necessary expense for the conduct of the Arbitration. Director's Delegate Blackman was not persuaded that the Arbitrator erred in characterizing the request as a request for interim expenses. Nor was he persuaded that allowing an interim payment of legal expenses was tantamount to determining catastrophic impairment without a hearing on the matter. Rather, to allow an interim award of legal expenses was to allow a meaningful hearing on the issue.

Director's Delegate Blackman noted that the issue of catastrophic impairment had not been formally added to the Arbitration. Accordingly, any award of interim legal expenses was conditional upon an Arbitrator adding same as an issue in the Arbitration.

Director's Delegate Blackman was persuaded that Section 5(5) of the Expenses Schedule allowed for payment of up to $1,500.00 per report. The same expert could be entitled to up to $1,500.00 for each separate report that he or she prepared. He was not persuaded that Section 5(5) allowed the same report to be broken up into stages such as "essential clinical tasks" or "collating" as a means of getting around "the hard limits on reports". He held that the Applicant was entitled to $6,000.00 for four separate reports, plus HST.


Director's Delegate Blackman ultimately found that the expenses were properly characterized as interim legal expenses, assuming that the issue of catastrophic impairment was formally added to the Arbitration. Accordingly, his comments regarding whether the costs of CAT assessments are payable as a medical and rehabilitation benefit are only of persuasive value.

CAT assessments are often costly. If CAT assessments are not payable out of the medical and rehabilitation limits, this could result in additional costs to insurers. I expect that we will see further case law on this issue


[1] FSCO Appeal P14-00038 (Director's Delegate Blackman, May 4, 2015).

[2] O Reg 34/10.

[3] RSO 1990, c I.8.

Lerners Insurance Defence Reference Library

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.