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Case Summary

Shaughnessy v. Aviva Canada Inc., 2011 ONSC 1566 (Div. Ct.); (October 2, 2009), FSCO P07-00036 (Evans); (November 6, 2007), FSCO A06-001546 (Wilson)

Lawyer: James M. Brown

This case involved a challenge by the insurer to the results of a CAT DAC under the SABS-1996.

The claimant had undergone a multi-disciplinary CAT DAC assessment, which had concluded that she had sustained a catastrophic impairment as a result of the accident. The claimant later brought an arbitration proceeding in which she sought increased amounts of attendant care and med/rehab benefits following her catastrophic designation.

On behalf of the insurer, James responded to the arbitration by challenging the findings of the CAT DAC, and the catastrophic designation itself.

The claimant brought a preliminary issue hearing to resist this challenge, and argued that the insurer was bound by the findings of the CAT DAC.

Although initially unsuccessful on the preliminary issue hearing, James successfully argued on appeal that the insurer has a right to challenge a catastrophic designation in response to an arbitration brought by a claimant. James was also successful in having the appeal decision upheld on judicial review.

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