Beth Allen

The applicant sought production of the insurer's adjuster's log notes generated between the settlement of his first set of accident benefits claims and his second application for arbitration.

The insurer claimed litigation privilege over the entire file.

The arbitrator held that the insurer bears the burden of proving privilege and that litigation was not reasonably contemplated immediately after the first settlement.

The arbitrator ordered production of the log notes generated up to the date of the second application for mediation, finding that the adjustment phase continued until that point.

The insurer brought a motion for the production of the applicant's complete, unedited clinical notes and records from her family doctor.

The applicant had produced redacted records, arguing that the deleted portions contained private and confidential information irrelevant to her motor vehicle accident claim.

The applicant requested that the pre-hearing arbitrator review the unedited records to determine relevance.

The arbitrator declined to review the records, finding that the hearing arbitrator would be in a better position to assess their probative value.

Applying the principle that a plaintiff's pre- and post-accident medical condition is relevant when damages for personal injuries are sought, the arbitrator ordered the applicant to produce the complete, unedited records from 1995 to date.

The issue of expenses was deferred to the hearing arbitrator.

The Applicant was injured in a motor vehicle accident and sought statutory accident benefits.

The Insurer terminated income replacement and housekeeping benefits based on insurer's examinations.

The arbitrator found the Applicant's evidence and her medical assessors' opinions credible, establishing that her physical and psychological impairments substantially prevented her from performing her pre-accident employment and housekeeping tasks.

The arbitrator rejected the Insurer's assessors' evidence as flawed and unpersuasive.

The Applicant was awarded income replacement and housekeeping benefits for the 104-week period, with interest.

Claims for post-104 week benefits were dismissed on a technical basis without prejudice.

The claim for a special award was dismissed as the Insurer's reliance on its assessors, though ultimately unsuccessful, was not unreasonable.

The applicant sought statutory accident benefits for rehabilitation and care services following a 1993 motor vehicle accident.

The insurer denied the claims, arguing the applicant's pervasive physical, cognitive, and psychological conditions were not caused by the accident.

The arbitrator dismissed the applicant's claims, finding she failed to prove on a balance of probabilities that the accident materially contributed to her impairments.

The arbitrator noted a complete absence of pre-accident medical records, relying solely on the applicant's unreliable self-reporting, and drew an adverse inference from her failure to call pre-accident treating physicians or lay witnesses to corroborate her pre-accident health and functional abilities.

The applicants applied for statutory accident benefits following an alleged motor vehicle accident.

The insurer terminated benefits and sought repayment, alleging the applicants wilfully misrepresented the circumstances of the accident.

Relying on uncontroverted expert accident reconstruction evidence, the arbitrator found the accident could not have occurred as described by the applicants.

The arbitrator concluded the applicants wilfully misrepresented material facts and ordered them to repay the income replacement, housekeeping, and medical benefits paid directly to them, totaling $14,536.12 for one applicant and $16,973.63 for the other, plus interest.

The applicants were also ordered to pay the insurer's arbitration expenses.

The applicant applied for statutory accident benefits following a motor vehicle accident.

After failing to resolve the dispute at mediation, the applicant applied for arbitration but subsequently failed to attend two pre-hearing discussions and the arbitration hearing itself.

The insurer brought a motion to dismiss the application.

The arbitrator granted the motion, finding that the applicant failed to participate in the process or produce evidence to substantiate his claims.

The arbitration was dismissed, and the applicant was ordered to pay the insurer's expenses fixed at $500.

Following a decision that the applicants were not injured in a motor vehicle accident and were precluded from proceeding to arbitration, the insurer sought its arbitration expenses under subsection 282(11) of the Insurance Act.

The arbitrator found that the applicants were unsuccessful and that their oral evidence was implausible and unreliable, leading to needless time and resources being expended.

The arbitrator awarded the insurer a fixed portion of its expenses, ordering the applicants to pay a total of $800.

Following an arbitration decision awarding the applicant income replacement and medical benefits, both parties sought their arbitration expenses.

The arbitrator awarded expenses to the applicant, finding he was entirely successful and that the insurer's counsel and representative caused undue delays through fruitless cross-examination and uncooperative behaviour.

The applicant's claimed costs of over $39,000 were reduced to $20,000 due to excessive hours billed, lack of complexity, and the applicant's own contribution to some delays.

The insurer's claim for expenses was dismissed.

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

In a preliminary motion on production, the applicant requested information on whether the insurer had conducted any surveillance upon which it did not intend to rely at the hearing.

The insurer objected, arguing the Dispute Resolution Practice Code did not require such production.

The arbitrator ordered the insurer to produce the information, finding it might be relevant to the issues in dispute and that no prejudice would result to the insurer.

The applicant was injured in a motor vehicle accident in 1997 and received income replacement benefits until the insurer terminated them in November 1997 based on early medical opinions.

The applicant applied for arbitration, claiming ongoing entitlement to income replacement benefits due to cognitive, psychological, and physical impairments.

The arbitrator found that the applicant sustained impairments as a result of the accident and met the tests for both substantial inability within the first 104 weeks and complete inability thereafter.

The arbitrator preferred the evidence of the applicant, his family, and his medical-legal experts over the insurer's experts.

The insurer was ordered to pay ongoing income replacement benefits, interest from the date the applicant's counsel first contacted the insurer in 2001, and a $5,000 special award for unreasonably failing to reinstate benefits after receiving further medical evidence of disability.

The applicant applied for arbitration regarding statutory accident benefits following a 1993 motor vehicle accident.

A preliminary issue hearing was scheduled to determine the applicant's mental capacity to proceed with the arbitration.

The applicant failed to attend the hearing or provide requested medical evidence.

The arbitrator found the applicant was presumed to have capacity.

As the applicant provided no evidence to support her claims for weekly and child care benefits, the arbitration was dismissed.

No arbitration expenses were awarded against the applicant due to concerns about her mental capacity.

The applicant was injured in three motor vehicle accidents and sought statutory accident benefits.

During the arbitration hearing, the insurer sought to introduce three surveillance videotapes from September 2002 into evidence.

It was revealed that the insurer also possessed a fourth videotape from November 2003, which it had not disclosed and did not intend to produce.

The applicant brought an interlocutory motion to exclude the surveillance evidence.

The arbitrator held that under Rule 40 of the Dispute Resolution Practice Code, an insurer must produce all surveillance material generated in relation to the issues in dispute if it intends to rely on any portion of it.

The insurer was not permitted to 'pick and choose' which tapes to produce.

The motion was granted, and the insurer was not permitted to file the three September 2002 videotapes into evidence.

The applicant sought statutory accident benefits following a motor vehicle accident.

After failing to produce required documentation, including a WSIB election form, the applicant's representative withdrew.

The applicant subsequently failed to attend the arbitration hearing without providing a reasonable explanation.

The arbitrator dismissed the arbitration due to the applicant's failure to present evidence and prove her case, and awarded the insurer $500 in arbitration expenses.

The applicant applied for statutory accident benefits following a motor vehicle accident.

The applicant failed to attend the arbitration hearing and had a history of failing to communicate with counsel or comply with production orders.

The arbitrator dismissed the arbitration due to the applicant's failure to meet the burden of proof.

The applicant was ordered to pay $500 in expenses to the insurer.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, including income replacement, medical, housekeeping, and assessment costs.

The insurer terminated benefits based on an assessment by a general practitioner and a Disability DAC report.

The arbitrator found that the applicant suffered a substantial inability to perform her pre-accident employment as a sewing machine operator for the first 104 weeks, relying on the chronic pain diagnosis of her treating physiatrist and psychologist.

However, the applicant failed to meet the stricter "complete inability" test for post-104 week benefits.

The arbitrator awarded the claimed medical, housekeeping, and assessment expenses.

Furthermore, the arbitrator ordered the insurer to pay a $10,000 special award under s. 282(10) of the Insurance Act, finding that the insurer unreasonably withheld benefits by relying on flawed assessments, ignoring substantial medical evidence, and improperly requesting a supplementary report from a neutral DAC assessor.

The insurer brought a motion to compel the applicant to produce two defence medical reports generated in a companion tort action.

The applicant opposed production, arguing the reports were irrelevant and protected by the implied undertaking rule.

The arbitrator found that while the implied undertaking rule did not shield the applicant from producing the documents, the reports were of limited probative value because they pre-dated the termination of benefits and the 104-week period at issue.

Furthermore, the insurer had already conducted sufficient assessments under section 42 of the Schedule.

The motion for production was dismissed.

The applicant and his paralegal representative failed to attend a scheduled pre-hearing discussion without notifying the Commission or the insurer.

The insurer sought its costs thrown away.

The arbitrator found that the representative caused expenses to be incurred and wasted by unreasonable delay without reasonable cause.

The applicant and his representative were ordered to jointly and severally pay $500 in interim expenses to the insurer.

The applicant, injured in three motor vehicle accidents, sought an adjournment of an ongoing arbitration hearing regarding statutory accident benefits.

The applicant requested the delay to add a claim for income replacement benefits and to await the results of multi-disciplinary examinations requested by the insurer.

The arbitrator dismissed the motion, finding that the income replacement benefit claim was not yet in dispute and that delaying the hearing to await unknown assessment results would run counter to the goals of timeliness and efficiency.

The arbitrator also noted that the pending assessments would not assist in determining the existing issues, such as catastrophic impairment.

Following the dismissal of the applicant's claims for income replacement benefits and a special award, both parties sought their arbitration expenses under subsection 282(11) of the Insurance Act.

The arbitrator applied the criteria under Regulation 664 and the Dispute Resolution Practice Code, finding that the insurer was entirely successful, had made a formal offer to settle that was more generous than the outcome, and that the applicant's conduct caused unreasonable delay.

The applicant's claim for expenses was dismissed, and the applicant was ordered to pay $1,000 towards the insurer's legal fees and disbursements.

The applicant was injured in a motor vehicle accident while driving his employer's van.

The insurer denied income replacement benefits, arguing the applicant was excluded under s. 30(1)(d) of the Statutory Accident Benefits Schedule because he knew or ought to have known he was operating the vehicle without the owner's consent.

The arbitrator found the applicant's evidence credible that he reasonably believed he had the consent of the company's retired owner to use the van for a weekend trip to Toronto.

The arbitrator concluded the applicant was not excluded from pursuing his claim for income replacement benefits.