Benjamin M. Drory

The applicant was injured in a motor vehicle accident and sought statutory accident benefits from the insurer.

The applicant filed an Application for Mediation, but neither party took steps to schedule it within the prescribed 60-day period, leading FSCO to close the file and deem the mediation failed.

The insurer brought a preliminary issue motion to dismiss the subsequent Application for Arbitration, arguing the applicant failed to participate in mediation in good faith.

The Arbitrator dismissed the motion, applying the Court of Appeal's decision in Hurst et al., which held that mediation fails simply upon the expiry of the 60-day prescribed time limit, regardless of the parties' subjective intentions or active participation.

The applicant was injured in a motor vehicle accident and claimed attendant care benefits for services provided by his spouse.

The spouse was a certified Personal Support Worker (PSW) who took a leave of absence from her job to care for the applicant.

The insurer argued that the spouse was not providing services in the course of her employment and therefore had to demonstrate an economic loss.

The arbitrator held that the spouse was providing attendant care services in the course of the employment, occupation, or profession in which she would ordinarily have been engaged but for the accident, pursuant to s. 3(7)(e)(iii)(A) of the Schedule.

As a result, economic loss did not need to be demonstrated.

The insurer brought a motion to stay the arbitration proceeding regarding the applicant's catastrophic impairment claim until she attended a neuropsychological independent medical examination (IME).

The applicant opposed the motion, arguing the IME was not reasonably necessary as no brain injury was alleged, she had already attended multiple psychiatric IMEs, and the insurer had alleged fraud and terminated all benefits.

The arbitrator applied the factors from Bogic and Ramalingam, finding that while the insurer has a right to request IMEs, the balance of fairness favored the applicant.

The arbitrator noted the proximity of the motion to the scheduled hearing and the potential prejudice of delaying the resolution of the catastrophic impairment and fraud issues.

The motion for a stay was dismissed, and the hearing was ordered to proceed as scheduled.