David Leitch

The parties sought expenses following an arbitration regarding statutory accident benefits.

In a preliminary issue hearing, the applicant successfully defended against the insurer's allegation of misrepresentation.

However, in the main hearing, the applicant's claims for additional benefits were dismissed and she was ordered to repay certain benefits.

The arbitrator found that the parties incurred roughly the same expenses for both parts of the hearing.

Given the divided success—the applicant succeeding on the preliminary issue and the insurer succeeding on the main hearing—the arbitrator ordered that each party bear their own expenses.

The applicant was injured in a motor vehicle accident in December 2005 and received income replacement benefits (IRBs) until August 2008.

She sought IRBs beyond the 104-week mark, requiring her to prove a complete inability to engage in any employment for which she was reasonably suited, caused by the accident.

The applicant advanced several theories of causation, including spinal injuries, exacerbation of pre-existing fibromyalgia, and a psychological disorder.

The arbitrator rejected all theories, finding that the applicant likely only sustained minor soft tissue injuries in the accident, that the cause of fibromyalgia is unknown making exacerbation unprovable, and that the psychological diagnoses lacked adequate foundation.

The application for ongoing IRBs and a special award was dismissed.

The applicant was injured in a motor vehicle accident and received income replacement benefits from the insurer.

She also received long-term disability (LTD) benefits from a group insurance plan.

The insurer deducted the LTD benefits from her income replacement benefits.

The applicant disputed the deductibility of the LTD benefits.

The arbitrator held that the LTD benefits were payments for loss of income under an income continuation benefit plan and were therefore deductible from the income replacement benefits pursuant to section 7(1) of the Statutory Accident Benefits Schedule.

The arbitrator determined the entitlement and quantum of expenses following an arbitration decision regarding statutory accident benefits.

The Insurer achieved a greater degree of success, having successfully defended against three of four benefit claims and a claim for a special award.

The arbitrator considered written offers to settle, noting the Insurer's offer was closer to the final result than the Applicant's offer.

The arbitrator also reviewed the conduct of the Applicant's counsel but found it did not unreasonably prolong the hearing.

The Insurer was awarded 60% of its recoverable expenses, assessed at $6,552.19, after reductions for unnecessary second counsel and unrecoverable disbursements such as court reporting and transcript fees.

Following a decision denying the insured's claim for income replacement benefits, the insurer sought to recover its expenses.

The arbitrator assessed the insurer's bill of costs, reducing the claimed legal fees by applying a 2.5 to 1 ratio of preparation to hearing time and deducting time spent on an ill-founded medical argument.

The arbitrator also disallowed disbursements for official examiner fees (transcripts) and the attendance fee of the insurer's medical expert.

The insurer was awarded $15,750 in legal fees and $7,440.21 in disbursements.

The applicant sought a determination from the Financial Services Commission of Ontario that she sustained a catastrophic impairment in a motor vehicle accident.

However, she was concurrently advancing claims for statutory accident benefits in a Superior Court action.

The arbitrator declined to decide the sole issue of catastrophic impairment and stayed the arbitration application, finding that the issue was too closely intertwined with the entitlement issues before the court.

Proceeding with the arbitration would risk a multiplicity of proceedings and inconsistent findings.

Following an arbitration decision where the applicant achieved divided success regarding statutory accident benefits, both parties sought their expenses.

The arbitrator reviewed the criteria under section 12 of Ontario Regulation 664, noting that the 'degree of success' was the only relevant factor.

Finding that both parties succeeded and failed in roughly equivalent measures, the arbitrator ordered each party to bear their own expenses.

The parties agreed on the amount of the applicant's Loss of Earning Capacity Benefits (LECB) but disputed the commencement date.

The insurer argued entitlement should begin on January 29, 2004, when the REC DAC evaluation was completed.

The applicant argued it should begin in May 2001, when the insurer made its original LECB offer of zero.

The Arbitrator held that the goal of consumer protection is best served by making LECB entitlement commence from the date the insurer made its original LECB offer, or when it should have been made.

The Arbitrator ordered that the applicant's LECB entitlement commenced in May 2001.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, including caregiver, housekeeping, and medical benefits, as well as the cost of a psychological assessment.

The insurer denied the claims on procedural grounds (late application) and substantive grounds.

The arbitrator held that the insurer could not rely on the late application because it failed to clearly warn the applicant of the consequences of non-compliance.

Substantively, the arbitrator dismissed the claims for caregiver and housekeeping benefits, finding the applicant was not the primary caregiver and did not suffer a substantial inability to perform housekeeping.

The claim for chiropractic treatment was also dismissed as not reasonable and necessary.

However, the arbitrator ordered the insurer to pay for the proposed psychological assessment, finding it was reasonably required based on the information available to the requesting psychologist.

The claim for a special award was dismissed.

The applicant was injured in a motor vehicle accident and subsequently signed a settlement agreement with the insurer for additional statutory accident benefits.

The applicant later sought to rescind the settlement, arguing the settlement documents did not comply with the Settlement Regulation.

The arbitrator held that the insurer bears the onus of proving compliance with the Settlement Regulation, rejecting the application of the presumption of regularity to private insurance settlements.

The arbitrator found that the settlement documents failed to provide the required commuted values and maximum monetary limits for various benefits, thereby failing to achieve even minimal compliance.

The applicant was therefore entitled to rescind the settlement and pursue her claim for additional benefits.

In a preliminary issue hearing regarding a dispute over statutory accident benefits, the insurer challenged the conclusions of two Designated Assessment Centre (DAC) assessors.

The issue was whether a DAC assessor meeting privately with counsel for either party before testifying would affect the admissibility or weight of their opinion.

The Arbitrator held that such a meeting, by itself, does not affect the admissibility or weight of the opinion, as litigation privilege protects a party's right to seek such meetings.

However, if a party obtains previously-undisclosed information or provides new information to the DAC assessor, they must comply with disclosure rules under the Dispute Resolution Practice Code.

The applicant was involved in three motor vehicle accidents in 2001 and sought income replacement benefits beyond October 6, 2002, claiming he was unable to return to his pre-accident job due to chronic pain and psychological problems.

The insurer terminated benefits based on multiple disability assessments concluding he was capable of working.

The arbitrator found that while the accidents contributed to his complaints, the applicant failed to prove he suffered a substantial inability to perform the essential tasks of his pre-accident employment.

The arbitrator preferred the evidence of the disability assessors over the applicant's treating physicians and experts, noting weaknesses in the latter's opinions and the fact that the applicant had successfully held other jobs post-accident.

The application for ongoing benefits and a special award was dismissed.

The applicants were injured in a motor vehicle accident and applied for statutory accident benefits.

The insurer took the position that the applicants were in the course of their employment and therefore only entitled to workers' compensation benefits.

The applicants eventually withdrew their applications for arbitration.

The insurer sought its expenses under section 282(11) of the Insurance Act, arguing the proceedings were frivolous and vexatious.

The arbitrator dismissed the insurer's claim for expenses, finding that the insurer failed to provide the applicants with complete and correct information about the interaction between the Statutory Accident Benefits Schedule and the Workplace Safety and Insurance Act, 1997, and the proper dispute resolution procedures.

The applicant was injured in a motor vehicle accident and received income replacement benefits for six years.

The insurer then terminated the benefits and sought repayment, alleging the applicant was not employed as claimed.

On a preliminary issue, the arbitrator held that, as a matter of law, an insurer can be estopped from challenging an insured's entitlement to and quantum of income replacement benefits on grounds related to pre-accident employment, despite the dispute resolution and repayment provisions of the Insurance Act and the Statutory Accident Benefits Schedule.

The applicant was involved in a single motor vehicle rollover accident.

The insurer denied her claim for income replacement and housekeeping benefits, alleging she made a material misrepresentation by claiming she was the driver when her husband was actually driving.

The insurer relied on an anonymous tip and an accident reconstruction report.

The arbitrator weighed conflicting expert evidence on occupancy dynamics and injury biomechanics.

The arbitrator preferred the applicant's expert, finding his explanation of the applicant's head injury more cogent, and concluded on a balance of probabilities that the applicant was driving the vehicle.

In a further decision regarding the calculation of the applicant's Residual Earning Capacity (REC), the arbitrator determined whether compensation for hours not actually worked and shift premiums constituted overtime earnings.

The arbitrator held that both the compensation received for 3.75 hours per week not actually worked and the shift premiums were earnings from full-time employment, not overtime, and must be included in the calculation of the applicant's REC.

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

The insurer scheduled multiple insurer examinations which the applicant failed to attend.

The insurer sought a preliminary ruling that the applicant was ineligible for caregiver, non-earner, attendant care, and housekeeping benefits during the period of non-compliance.

The arbitrator allowed the applicant's representative to withdraw due to a breakdown in the solicitor-client relationship.

The arbitrator found the applicant ineligible for attendant care and housekeeping benefits for specific periods due to her failure to attend reasonable examinations.

However, the insurer was not entitled to suspend non-earner or caregiver benefits because it failed to properly notify the applicant or put her to an election.

The insurer was awarded $1,000 in expenses.

The applicant was injured in a motor vehicle accident and received income replacement benefits (IRBs) from the insurer.

The insurer sought to reduce the IRBs by the amount of benefits the applicant received under a private disability insurance policy, arguing it was an 'income continuation benefit plan' under section 7(1)1i of the Statutory Accident Benefits Schedule.

The arbitrator held that the disability policy did not constitute an income continuation benefit plan because it had a 60-day elimination period, did not require the insured to be employed at the time of disability to qualify for benefits, and only coincidentally tied benefits to pre-disability income.

Therefore, the disability benefits were not deductible from the applicant's IRBs.

The insurer requested four medical and vocational examinations to assess the applicant's entitlement to post-104 week income replacement benefits.

The arbitrator found that the request for a functional abilities evaluation was reasonable, as it would provide relevant evidence about the applicant's physical ability to work.

However, the requests for an orthopaedic examination, a psycho-vocational assessment, and a 2-day situational assessment were dismissed.

The arbitrator held that the psycho-vocational and situational assessments constituted unreasonable invasions of privacy, particularly because the applicant had not put her psychological ability to work in issue, and the situational assessment raised potential civil liberties concerns.

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

The insurer denied that the applicant was involved or injured in the accident.

At the preliminary issue hearing, the applicant's counsel intended to rely on an affidavit from a student-at-law that referenced conversations the counsel had with the driver of the vehicle.

The arbitrator determined that the counsel was effectively acting as an unsworn witness, contrary to Rule 4.02 of the Rules of Professional Conduct.

The arbitrator adjourned the hearing on his own motion to allow the applicant's counsel to entrust the conduct of the hearing to another lawyer.