David Leitch

The applicant, a caregiver injured in a motor vehicle accident, sought loss of earning capacity benefits (LECBs).

The parties agreed her residual earning capacity was zero, but disputed her pre-accident earning capacity (PEC).

The insurer argued her PEC was zero due to pre-accident cognitive and physical limitations, relying on a psychologist's assessment.

The arbitrator rejected the psychologist's opinion as unreliable and accepted the applicant's vocational expert, finding her PEC should be based on a gross annual income of $18,000 as an unskilled industrial worker.

The arbitrator dismissed the applicant's claims for retroactive attendant care benefits due to lack of evidence on quantum, and for the cost of an actuarial report obtained for settlement purposes.

The applicant was injured in a rear-end motor vehicle accident and sought statutory accident benefits from her insurer.

The insurer denied four treatment plans for medical benefits and disputed her ongoing entitlement to housekeeping benefits.

The arbitrator found that the first two disputed treatment plans were reasonable and necessary, as they were supported by the treating physiotherapist's assessments, but denied the latter two plans, preferring the opinion of a MedRehab DAC assessor.

The arbitrator also awarded housekeeping benefits for a limited period following the accident, finding that the applicant's need for assistance gradually diminished to zero by September 10, 2003.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits, including loss of earning capacity benefits (LECBs).

The parties agreed on the applicant's pre-accident earning capacity (PEC) but disputed how to calculate his residual earning capacity (REC).

The specific issue was whether the applicant's voluntary overtime earnings at his post-accident employment should be included in the calculation of his REC.

The arbitrator held that overtime earnings are not relevant in the calculation of REC, as the legislative scheme for LECBs is intended to provide security and stability based on full-time employment income, exclusive of fluctuating overtime earnings.

The applicant sought statutory accident benefits after falling while attempting to board a TTC bus.

The insurer denied the claim, arguing the incident did not meet the definition of an 'accident' under section 2(1) of the Statutory Accident Benefits Schedule.

The arbitrator found the applicant's evidence credible, concluding that the closing of the bus door and the bus pulling away caused her to lose her balance and fall.

The arbitrator held that the injuries were directly caused by the use or operation of an automobile, satisfying the definition of an accident.

The applicant was injured in two motor vehicle accidents and applied for statutory accident benefits.

The insurer terminated attendant care, housekeeping, and caregiver benefits, and suspended benefits due to the applicant's refusal to attend insurer examinations.

The arbitrator found that the applicant was entitled to additional benefits for specific periods, but not beyond the end of 2004, as the medical evidence did not support ongoing disability.

The arbitrator also held that the insurer unreasonably suspended benefits by requiring the applicant to sign an undertaking to attend future examinations, and awarded a $500 special award.

The applicant was injured in a motor vehicle accident and received statutory accident benefits until the insurer terminated her weekly income replacement benefits.

The insurer relied on a Disability DAC assessment concluding she could perform alternative employment.

The arbitrator found that while the applicant was physically capable of performing the tested jobs, she suffered from a chronic pain condition and psychological impairments caused by the accident.

Relying on earlier DAC reports and psychological assessments, the arbitrator concluded that these psychological limitations rendered her completely unable to engage in any employment for which she was reasonably suited by education, training, or experience.

The applicant was involved in a motor vehicle accident and delayed applying for statutory accident benefits for several months, hoping to recover without going through the claims process.

The insurer raised a preliminary issue that the applicant was disentitled to benefits for failing to apply within the 30-day time limit under section 32(1) of the Statutory Accident Benefits Schedule.

The Arbitrator found that the insurer, having been notified of the accident, failed to promptly inform the applicant of the time limit and the potential consequences of non-compliance, which is required to assist the person in applying for benefits under section 32(2)(c).

Therefore, the insurer could not rely on the time limit to defeat the claim, and the applicant was not disentitled to benefits.

The applicant sought to recover expenses following an arbitration decision that awarded her partial housekeeping benefits.

The insurer also sought its expenses.

The arbitrator reviewed the amended Expense Regulation, which removed the broad discretion to consider access to the dispute resolution system and mandated a results-based approach.

Finding that both parties enjoyed some measure of success but neither achieved their ultimate objective, the arbitrator concluded that each party should bear its own expenses.

The applicant's pre-hearing offer to settle was disregarded because subsequent settlements and withdrawals of other claims vitiated the original offer.

The insured settled his statutory accident benefits claim with the insurer for $15,000.

The insurer provided the settlement cheque to the insured's agent, who misappropriated the funds.

The insured's estate brought an arbitration proceeding arguing that the insurer failed to comply with section 44(1)(a) of the Statutory Accident Benefits Schedule, which requires benefits to be mailed or delivered to the insured's residential address.

The arbitrator held that he had jurisdiction to hear the dispute and that section 44(1)(a) applies to settlement cheques.

The arbitrator found that the insurer breached this provision by delivering the cheque to the agent.

The hearing was adjourned to receive further evidence regarding a criminal restitution order against the agent before determining the insurer's final liability.

The applicant was injured in a rear-end motor vehicle accident and sought housekeeping and home maintenance benefits beyond the insurer's termination date of June 2, 2003.

The arbitrator found that the medical evidence, including the insurer's own multi-disciplinary assessment, supported that the accident materially contributed to a chronic pain condition limiting her ability to perform housekeeping.

However, the arbitrator drew an adverse inference from the applicant's failure to provide evidence regarding the outcome of a recommended 10-week psychotherapy treatment plan, concluding her entitlement ended on September 15, 2003.

Benefits were awarded at a rate of $30 per week based on in-home assessments, rather than the maximum $100 per week claimed.

The applicant was injured in a motor vehicle accident and sought payment for physiotherapy treatment, an adjustable bed, and a scooter accessible van under the Statutory Accident Benefits Schedule.

The insurer denied the claims.

The arbitrator found that the applicant's need for physiotherapy and an adjustable bed was related to pre-existing conditions, including fibromyalgia, rather than the accident.

Furthermore, the recommended aqua therapy and adjustable bed were not found to be reasonable and necessary.

The claim for a scooter accessible van was dismissed because the applicant already had an existing vehicle and the cost of modifying it did not exceed the cost of purchasing a new one.

The application was dismissed in its entirety.

The applicants were injured in a propane explosion inside a homemade camper affixed to a pick-up truck.

The insurer denied statutory accident benefits, arguing the incident was not an 'accident' under the Schedule.

The arbitrator found that camping and cooking with a propane stove inside a truck/camper are ordinary and well-known activities to which such vehicles are put.

The arbitrator concluded that the injuries were directly caused by the use or operation of the vehicle, and therefore the applicants were injured in an 'accident' as defined in the Schedule.

The insurer sought an assessment of expenses following a previous arbitration decision that dismissed the insured's claims for statutory accident benefits and awarded the insurer its expenses.

The insured did not participate in the expense hearing despite receiving notice.

The arbitrator assessed the insurer's legal fees, disbursements, and witness fees.

The arbitrator allowed legal fees at the Legal Aid rate and disbursements, but denied the insurer's claim for witness fees related to an expert whose diagnosis of malingering was rejected in the main proceeding.

The insured was ordered to pay the insurer $8,605.44 for hearing expenses.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits.

The insurer issued a settlement cheque, but the applicant maintained he did not receive his full entitlement and applied for arbitration.

A pre-hearing arbitrator divided the dispute into preliminary jurisdictional issues and main issues.

At the preliminary hearing, the arbitrator found that the witnesses and evidence for both sets of issues would be substantially similar.

Consequently, the arbitrator ordered that all issues be heard together at a new hearing date and directed each party to bear its own expenses for the preliminary hearing.

Following an arbitration decision regarding statutory accident benefits, the applicant sought hearing expenses of $5,093.02.

The insurer argued each party should bear its own expenses.

The arbitrator considered the criteria under the Expense Regulation, noting mixed success on the issues and that the applicant's representative unnecessarily prolonged the hearing and took meritless legal positions.

However, the applicant recovered more than double the insurer's settlement offer.

The arbitrator awarded the applicant half her counsel fees and all disbursements, totalling $2,211.96.

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

The insurer terminated and later reinstated the benefits with arrears.

A dispute arose over whether the insurer could set-off a deductible lump sum payment of collateral benefits against the benefit arrears, or if it had to recover the deduction through 20 per cent reductions in the reinstated benefits.

The arbitrator held that the insurer was entitled to set-off the deduction against the benefit arrears, as this prevented over-compensation and aligned with the purpose of the Schedule.

The insurer was also ordered to pay the applicant's hearing expenses.

The applicant, a pedestrian struck by an unidentified vehicle in a parking lot, applied for statutory accident benefits from her own insurer, Allstate, nearly a year after the accident.

Allstate denied the claims, arguing the applicant failed to notify it within 30 days and failed to submit her application forms within 30 days of receiving them.

The arbitrator found the applicant had a reasonable explanation for the late notice, as she was unaware her own policy provided coverage for a pedestrian hit-and-run.

The arbitrator also held that Allstate could not rely on the late application defence because it failed to inform the applicant of the potential consequences of missing the 30-day deadline, applying the consumer protection principles from Smith v. Co-operators.

The applicant was awarded housekeeping benefits, five additional psychological treatment sessions, and payment of a prior mediation settlement.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits.

The applicant's former representative commenced an action in Small Claims Court for caregiver and housekeeping benefits while simultaneously pursuing medical and examination benefits at the Financial Services Commission of Ontario, constituting venue-splitting.

The Small Claims Court dismissed the action with costs against the representative.

The insurer brought a motion at the Commission for expenses related to its motion to address the venue-splitting and abuse of process.

The arbitrator awarded the insurer $1,000 in expenses, finding the motion was justified and holding the applicant responsible for the consequences of his former representative's mishandling of the claims.

The applicant was injured in a motor vehicle accident and elected to receive caregiver benefits.

She later sought to change her election to claim income replacement benefits.

In a prior preliminary decision, the arbitrator found her election invalid.

On appeal, the Director's Delegate directed the arbitrator to decide the alternative issue: assuming the election was valid, was the applicant entitled to change it as of right.

The arbitrator held that an insured person is not entitled to change a valid election as of right.

Any such change must be determined on the basis of relative prejudice, consumer protection, and legislative purposes.

The Applicant sought to recover GST on disbursements for medical reports as part of her hearing expenses.

The Insurer argued that the medical reports were GST-exempt.

The Arbitrator found that while the reports may be exempt when billed to the lawyer, CCRA policy requires the lawyer to charge GST when billing the client, making the GST recoverable.

The Insurer also argued that the disbursements should be reduced because they were partially recovered in a related tort settlement.

The Arbitrator held he had no jurisdiction to alter his previous costs order based on the subsequent tort settlement.