The Insurer was ordered to pay for home renovations for a paraplegic Insured under the Ontario Statutory Benefits Schedule as a previous decision of an arbitrator denying such benefits to the Insured did not make the issue res judicata, the expenses were reasonable and they arose as a result of the subject motor vehicle accident

09. February 2004 0

Alfred v. Allstate Insurance Co. of Canada, [2004] O.J. No. 848, Ontario Superior Court of Justice

The Plaintiff Insured, who was paralyzed as a result of a 1993 motor vehicle accident, claimed that she was entitled, under the Ontario Statutory Accidents Benefits Schedule, to the payment of home renovations and other related expenses which were alleged to have arisen from the accident. The Insurer had already paid for renovations to the Insured’s apartment and an arbitrator had previously denied the Insured’s request that the Insurer fund the purchase and renovation of a house. The Insurer asserted that the Insured’s current requests had already been denied by the arbitrator and the issue was therefore res judicata.

The Court noted that nothing in the Schedule confined an Insured to a single renovation within the policy period. With respect to the argument of res judicata, the Court held that in order to find that res judicata exists, the Court must be satisfied that three requirements have been met: 1) that the same question has been decided, 2) that the judicial decision which is said to create the estoppel is final, and 3) that the parties to the judicial decision or their privies were the same persons as the parties to the matter in which the estoppel is raised. This case turned on the first issue, whether or not the same question had been decided by the arbitrator.

The Court held that the question before the arbitrator was different. The arbitrator was asked to consider the question of the cost of renovations to a house that the Insured wanted the Insurer to purchase, not the funding of renovations to a house purchased by the Insured and her husband. Thus, the issue decided at the arbitration was not of general application and the Insurer’s defence of res judicata failed.

The court went on to hold that even if the pre-conditions of res judicata existed in this case, they ought not be applied in the interests of justice and fairness.

The Insured was therefore entitled to the costs of the renovations. She was not, however, entitled to damages reflecting the delay in becoming a homeowner.

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