David Muir

The applicant sought to reopen an arbitration hearing to introduce fresh evidence regarding a fall and subsequent injuries that occurred after the conclusion of the evidence but before closing arguments.

The applicant claimed the fall was related to the motor vehicle accident and affected her ongoing entitlement to income replacement benefits.

The arbitrator applied the Palmer test for fresh evidence and granted the motion, finding that the circumstances were exceptional and the new evidence was relevant, reasonably capable of belief, and could affect the result.

The applicant was injured in a motor vehicle accident and received statutory accident benefits until they were terminated by the insurer.

The insurer subsequently sought to compel the applicant to attend a neurological assessment under section 42 of the Statutory Accident Benefits Schedule, shortly before the scheduled arbitration hearing.

The applicant refused to attend, arguing the assessment was not authorized.

The arbitrator found that the insurer's notice was technically defective because it failed to link the assessment to a specific benefit claimed and did not warn of the consequences of non-attendance.

Furthermore, the timing of the request was highly prejudicial to the applicant, as the insurer had notice of the potential brain injury months earlier but delayed its request until the eve of the arbitration.

The arbitrator ruled the assessment was not authorized.

The applicant, who was injured in a motor vehicle accident, sought production of the insurer's entire accident benefits file, including adjusters' notes, internal memoranda, and solicitor-client communications.

The insurer claimed litigation and solicitor-client privilege.

The arbitrator ordered production of the file up to the date the issues were referred to mediation, finding that the insurer failed to establish that the dominant purpose of the documents created before that date was for litigation or that legal advice was sought.

The insurer's cross-motion for a medical assessment under section 42 of the Schedule was dismissed, as the arbitrator found it was sought primarily to bolster the insurer's case at the upcoming arbitration rather than to determine entitlement to a benefit.

The applicant was injured in a motor vehicle accident and applied for a caregiver benefit under section 13 of the Statutory Accident Benefits Schedule, claiming she was the primary caregiver for her adult brother who suffers from schizophrenia and resides in a mental health facility.

The arbitrator found that the applicant did not qualify for the benefit because she did not reside with her brother, as required by the Schedule, and because the facility staff, rather than the applicant, provided the primary caregiving services.

The preliminary issue was resolved in favour of the insurer.

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

When the matter proceeded to an arbitration hearing, the Applicant failed to attend.

The Arbitrator dismissed the application for arbitration due to the Applicant's failure to lead evidence.

The Insurer sought its expenses and a special award for a frivolous or vexatious proceeding.

The Arbitrator ordered the Applicant to pay the Insurer's reasonable expenses of $2,554.89 but declined to order a penalty for a frivolous proceeding because the relevant statutory provision had been repealed and the Insurer failed to provide advance notice of the claim.

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

The applicant brought a motion for interim benefits pending the resolution of the dispute.

The insurer ultimately did not oppose the order for interim benefits but sought a ruling on whether an interim benefits order is available where an insurer is already paying the benefits, relying on a previous decision.

The arbitrator ordered the insurer to pay interim income replacement benefits, finding that the insurer failed to comply with the Schedule when terminating the benefits, and distinguished the previous decision relied upon by the insurer.

The claim for a special award was dismissed on consent.

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

After failing to attend an insurer's examination and failing to return required forms, the insurer raised preliminary issues.

The applicant and her representative failed to attend the preliminary issue hearing.

The insurer sought its expenses of the arbitration and a special award under section 282(11.2) of the Insurance Act.

The arbitrator found that the applicant had authorized the arbitration but subsequently failed to participate, making the proceeding frivolous and an abuse of process.

The applicant was ordered to pay the insurer's reasonable expenses of $6,965.21 and an additional $3,000 for commencing a frivolous arbitration.

The applicant sought interim income replacement benefits after the insurer terminated them despite a positive disability Designated Assessment Centre (DAC) report.

The arbitrator held that an insurer is not bound by a pre-104 week positive DAC assessment for post-104 week benefits, as the test for entitlement changes significantly at that threshold.

However, the arbitrator ruled that a mere change in the insured's medical condition does not allow an insurer to bypass the dispute resolution process and terminate benefits contrary to a positive DAC, unless the change is as significant and material as the passage of the 104-week mark.

The applicant in a statutory accident benefits dispute served a late psychovocational assessment report shortly before the arbitration hearing.

The insurer brought a motion seeking an order that the applicant attend a psychovocational assessment by its own expert to respond to the late report.

The arbitrator granted the motion, holding that fairness and the arbitrator's duty to control the hearing process required that the insurer be given a reasonable opportunity to respond, which included an independent assessment of the applicant.

The applicant was injured in a motor vehicle accident and sought ongoing income replacement benefits beyond the 104-week mark, as well as the cost of a golf cart as a rehabilitation expense.

The insurer terminated benefits, arguing the applicant's inability to work was due to a pre-existing back injury and that she was capable of working with accommodations.

The insurer also argued that the applicant's HOOPP disability pension should be deducted from any income replacement benefits.

The arbitrator found that the motor vehicle accident materially contributed to the applicant's impairments, rendering her completely unable to perform any suitable occupation.

The arbitrator also held that the HOOPP pension was not an income continuation plan or temporary disability benefit, and thus was not deductible.

The applicant was awarded ongoing income replacement benefits and the cost of the golf cart.

The applicant sought statutory accident benefits, claiming she was a passenger in a vehicle involved in a collision.

The insurer denied the claim, asserting she was not in the vehicle.

At the preliminary issue hearing, the applicant failed to appear.

The arbitrator accepted the evidence of the other driver and passenger, as well as the responding police officer, who all testified that there were only three people in the vehicle, none of whom was the applicant.

The application was dismissed.

The arbitrator awarded the insurer $2,668.33 in expenses and ordered the applicant to pay a $3,000 penalty for commencing a frivolous and vexatious arbitration based on a misrepresentation.

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

The insurer brought a preliminary motion arguing the applicant was precluded from proceeding to arbitration because she failed to attend scheduled insurer's examinations and failed to return an OCF-14 form required for a Designated Assessment Centre (DAC) assessment.

The applicant's representative also brought a motion to withdraw due to a breakdown in the relationship and the applicant's failure to provide a required authorization.

The arbitrator allowed the representative to withdraw without conditions.

On the preliminary issue, the arbitrator found that while the insurer's notice for the examinations was deficient, the applicant's failure to provide the OCF-14 constituted non-compliance with section 43(2) of the Schedule.

Consequently, the applicant was precluded from proceeding to mediation and arbitration for the disputed medical benefits.

The insurer brought a motion to stay the applicants' arbitration proceedings for statutory accident benefits until all outstanding, unmediated treatment plans were mediated and combined into a single proceeding.

The insurer also sought to exclude the applicants' representative.

The arbitrator granted a stay of the arbitrations pending the resumption of a pre-hearing to prevent a potential abuse of process and multiplicity of proceedings.

The requests to immediately add the unmediated plans and to exclude the representative were dismissed as premature and unwarranted, respectively.

The insurer was awarded $300 in expenses.

The applicant was injured in a motor vehicle accident and sought physiotherapy expenses.

The insurer raised a preliminary issue, arguing the applicant was precluded from proceeding to mediation under s. 71(1) of the Statutory Accident Benefits Schedule because he failed to attend a Designated Assessment Centre (DAC) assessment in 1996.

The arbitrator found that the insurer failed to schedule the assessment at the closest DAC and failed to obtain the required s. 37 certificate.

As the requested assessment was not authorized under the Schedule, the applicant did not fail to make himself reasonably available and was not precluded from proceeding to mediation.

The preliminary issue was dismissed.

The applicant was injured in a motor vehicle accident and sought medical rehabilitation benefits for treatments received between June 1998 and October 2001.

The insurer argued the claim was barred by res judicata due to a prior arbitration decision that denied benefits for an earlier period.

The arbitrator rejected the res judicata argument, finding that entitlement to medical benefits can arise at any time and the issues were not identical.

On the merits, the arbitrator found the applicant's ongoing chiropractic, acupuncture, osteopathic, and massage treatments were reasonable and necessary to manage his symptoms and allow him to work.

The claim for prescription expenses was denied due to lack of evidence.

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

A preliminary issue hearing was scheduled to determine if the applicant was precluded from proceeding to arbitration for failing to attend an insurer examination.

Neither the applicant nor her representative attended the hearing.

The arbitrator noted discrepancies in the applicant's signatures on various documents, raising concerns that the arbitration may have been commenced without her knowledge or consent.

The arbitrator stayed the arbitration pending a determination of who actually commenced the proceeding and denied the representative's request to unilaterally withdraw.

The insurer brought a preliminary motion to dismiss the arbitration because the applicant failed to comply with a prior order to pay $500 in expenses.

The applicant argued she was unable to pay because the insurer had not paid any benefits.

The arbitrator ordered that the arbitration be stayed until the applicant complies with the prior order.

The applicant applied for statutory accident benefits following a motor vehicle accident and subsequently applied for arbitration at the Financial Services Commission of Ontario.

At the scheduled hearing, the applicant failed to attend and was unrepresented.

The arbitrator dismissed the application for arbitration due to the applicant's non-attendance and ordered the applicant to pay $500.00 in expenses to the insurer.

The insurer brought a motion to dismiss the arbitration because the applicant failed to comply with a prior order to pay $500 in expenses.

The applicant argued that he was unable to pay because the insurer had not paid any benefits.

The arbitrator ordered that the arbitration be stayed until the applicant complies with the prior order.

The applicant was seriously injured in a motor vehicle accident and sought payment for services provided by a rehabilitation consultant.

The insurer denied payment, arguing the services were case management, which are only compensable if the insured suffered a catastrophic impairment.

The arbitrator found that the statutory definition of 'case manager' is exhaustive and limited to coordinating medical, rehabilitation, or attendant care benefits.

Services coordinating other benefits, such as caregiver or housekeeping benefits, are not case management and may be compensable as rehabilitation benefits under section 15.

The arbitrator concluded that some of the consultant's services were case management and not compensable, while others were rehabilitation services and potentially compensable.