David Muir

HRTOHuman Rights Tribunal of OntarioOct 27, 2008

Tribunal ordered two related human rights applications to proceed together for mediation.

The applicant filed two applications under section 53(3) of the Human Rights Code alleging discrimination in employment on the basis of disability, ethnic origin, and race against his employer, and against his union regarding its representation.

The Tribunal found that the applications involved similar facts and legal issues.

Pursuant to the Tribunal's Rules, the adjudicator ordered that the applications proceed together for the purposes of mediation to ensure a fair, just, and highly expeditious process.

Mayta v. Canada Lands, 2008 HRTO 195

David Muir

HRTOHuman Rights Tribunal of OntarioOct 20, 2008

Two human rights applications arising from the same practicum placement ordered to proceed together.

The applicant filed two human rights applications alleging discrimination based on race, colour, and disability against a university school of social work and a women's centre.

The applications arose from incidents during a practicum placement.

The Tribunal ordered that the applications proceed together at this stage to ensure a fair, just, and highly expeditious process, as they involve related facts and similar legal issues.

Taylor-Wright v. York University School of Social Work, 2008 HRTO 171

David Muir

HRTOHuman Rights Tribunal of OntarioOct 20, 2008

Three related human rights applications consolidated and preliminary jurisdictional issues deferred to a case resolution conference.

The applicant filed three related applications alleging discrimination in employment and vocational relationships based on disability.

The respondents raised preliminary issues regarding jurisdiction and the existence of an employment relationship.

The Tribunal directed that the three applications proceed together to ensure a fair, just, and highly expeditious process.

The Tribunal also directed that the preliminary issues be dealt with at a case resolution conference and set a schedule for the delivery of responses and written submissions.

Hallett v. Grey Bruce Health Services, 2008 HRTO 170

David Muir

HRTOHuman Rights Tribunal of OntarioOct 16, 2008

Tribunal warns respondent of consequences of failing to file a response to human rights application.

The applicant filed a transitional application under section 53(3) of the Human Rights Code.

The respondent failed to file a response and advised the Tribunal that he would not participate in the process.

The Tribunal issued an interim decision warning the respondent of the consequences of failing to respond under Rule 3.2, and ordered that if a response is not filed by November 3, 2008, the Tribunal may proceed without further notice.

McPherson v. Hiuser, 2008 HRTO 164

David Muir

HRTOHuman Rights Tribunal of OntarioOct 16, 2008

Tribunal cancelled mediation and issued case management directions after respondents refused to participate.

The applicant filed an application under section 53(3) of the Human Rights Code.

The respondents failed to file a Response within the required time and advised they would not consent to participate in the scheduled mediation.

The Tribunal cancelled the mediation and issued a case management direction ordering the respondents to file their Response by a specified date, failing which orders could be made against them.

The Tribunal also set a schedule for the exchange of documents and additional facts in preparation for a case resolution conference.

Sonya McIlravey v. Vincent Salon and Spa, 2008 HRTO 163

David Muir

HRTOHuman Rights Tribunal of OntarioOct 10, 2008

Request to adjourn mediation denied as abandoned; personal respondent's removal request deferred to mediation.

The applicant filed an application under section 53(3) of the Human Rights Code.

The respondents requested an adjournment of the scheduled mediation but subsequently filed a response agreeing to mediation without providing reasons for the adjournment.

The Tribunal found the adjournment request abandoned and directed the mediation to proceed as scheduled.

The Tribunal deferred the personal respondent's request to be removed from the proceeding to the mediation.

The Tribunal also noted the respondents' difficulties in delivering documents to the applicant and warned that delivery could be deemed effected if service was being avoided.

Rheaume v. Transportation Placement Services, 2008 HRTO 150

Arbitrator awards partial medical and housekeeping benefits for injuries sustained in a motor vehicle accident.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits for medical treatments and housekeeping.

The insurer denied the claims.

The arbitrator found that the applicant suffered injuries outside the WAD II PAF Guideline, specifically radiculopathy, and awarded medical benefits for chiropractic, physiotherapy, and acupuncture treatments.

The arbitrator also awarded partial housekeeping benefits for the initial four weeks post-accident, finding the applicant's evidence of ongoing need unreliable.

The third treatment plan was denied as not reasonable or necessary.

Jess Tendenilla v. Allstate Insurance Company of Canada, 2008 ONFSCDRS 139

Richard Horst

23 cases2007–2019

Arvin Gupta

48 cases2008–2026

David Muir

OFSCDRSOntario Financial Services Commission - Dispute Resolution ServicesAug 13, 2008

Motion for recusal dismissed; arbitrator's recording of a procedural agreement did not create reasonable apprehension of bias.

The applicant brought a motion requesting that the arbitrator recuse himself on the basis of a reasonable apprehension of bias.

The applicant argued that a prior letter from the arbitrator, which recorded a procedural agreement between the parties, lacked an evidentiary foundation and therefore indicated bias.

The arbitrator dismissed the motion, finding that the letter itself was the record of the agreement reached during a telephone conference, and an informed person would not conclude that the arbitrator would not decide the issues fairly.

Jess Tendenilla v. Allstate Insurance Company of Canada, 2008 ONFSCDRS 137

Jamie Pollack

82 cases1998–2026

David Muir

OFSCDRSOntario Financial Services Commission - Dispute Resolution ServicesAug 12, 2008

Arbitration withdrawal permitted with conditions; applicant ordered to pay $1,200 in expenses.

The applicant sought to withdraw her arbitration proceeding regarding statutory accident benefits following a motor vehicle accident.

The insurer consented to the withdrawal but sought its expenses and an order requiring the applicant to pay the $3,000 arbitration fee if she recommenced the proceeding.

The arbitrator permitted the withdrawal and ordered the applicant to pay $1,200 in expenses, representing 50% of the insurer's allowable expenses, as well as $3,000 to the insurer only in the event she commences a new arbitration in respect of the same issues.

Wanda Lukas v. York Fire & Casualty Insurance Company, 2008 ONFSCDRS 135

Janet C. Stevens

Not Practising Law - Employed1 case2008–2008

David Muir

OFSCDRSOntario Financial Services Commission - Dispute Resolution ServicesJul 8, 2008

Arbitration for statutory accident benefits dismissed after applicant failed to participate in the proceedings.

The applicant claimed statutory accident benefits following a motor vehicle accident and applied for arbitration after mediation failed.

Following the commencement of the arbitration, the applicant failed to attend scheduled pre-hearings or participate in the process, leading her representative to withdraw.

The insurer requested an order dismissing the arbitration pursuant to Rule 68 of the Dispute Resolution Practice Code.

The arbitrator found that the arbitration had become frivolous due to the applicant's failure to participate in any meaningful way and dismissed the proceeding.

No expenses were awarded.

Karlene Silvera v. Royal & SunAlliance Insurance Company of Canada, 2008 ONFSCDRS 111

George Mekaris

Debra Lewis

David Muir

OFSCDRSOntario Financial Services Commission - Dispute Resolution ServicesMay 23, 2008

Insurer's motion for production of tort materials dismissed as overbroad, late, and unjustified.

The insurer brought a motion seeking an order to compel the applicant to produce tort materials or prepare an Affidavit of Documents of tort materials.

The arbitrator dismissed the motion, finding the request was overbroad, unparticularized, and brought too late.

Furthermore, the insurer failed to provide compelling reasons why the medical reports obtained pursuant to the Statutory Accident Benefits Schedule were insufficient, and ordering production of discovery transcripts from the tort action would unfairly distort the arbitration process.

Vladimir Pankratov v. State Farm Mutual Automobile Insurance Company, 2008 ONFSCDRS 82

Murray Tkatch

In Private Practice31 cases1995–2024

Andrew Grayson

Suspended Administratively13 cases2005–2019

David Muir

OFSCDRSOntario Financial Services Commission - Dispute Resolution ServicesMay 22, 2008

Insurer's expenses reduced due to excessive time spent pursuing an unproven fraud conspiracy theory.

Following the dismissal of the applicants' claims for statutory accident benefits, the insurer sought $33,500 in expenses.

The arbitrator found that while the insurer was completely successful in defending the claims, it had spent excessive time pursuing an unproven conspiracy theory regarding a fraud ring.

The arbitrator reduced the allowable preparation and hearing time, disallowing expenses for the days devoted entirely to the conspiracy theory.

The applicants were ordered to pay a total of $12,013.36 in expenses, apportioned between them based on their respective involvement in the hearing.

Patience Sarpong and Victoria Owusu v. TD Home and Auto Insurance Company, 2008 ONFSCDRS 81

Richard Horst

23 cases2007–2019

Armin Gupta

David Muir

OFSCDRSOntario Financial Services Commission - Dispute Resolution ServicesFeb 27, 2008

Insurer is not liable to pay accident benefits until the applicant attends a required examination under oath.

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

The insurer requested an examination under oath pursuant to section 33(1.1) of the Statutory Accident Benefits Schedule.

The applicant failed to attend the scheduled examination, arguing that notice was improperly sent to his counsel rather than to him personally, and that the insurer failed to reasonably accommodate his schedule.

The arbitrator found that notice to the applicant's solicitor was sufficient under section 68(2)(a) of the Schedule and that the applicant's counsel failed to respond to scheduling attempts.

Consequently, the insurer is not liable to pay benefits from the date of the missed examination until the applicant complies.

Jess Tendenilla v. Allstate Insurance Company of Canada, 2008 ONFSCDRS 28

P. Michael Rotondo

27 cases2004–2026

Kerri Knudson

David Muir

OFSCDRSOntario Financial Services Commission - Dispute Resolution ServicesFeb 6, 2008

Applicant found to lack mental capacity; daughter appointed to act on his behalf in arbitration.

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

A preliminary issue hearing was held to determine whether the applicant had the mental capacity to proceed in the dispute resolution process.

Based on medical reports and direct questioning of the applicant, the arbitrator found that the applicant lacked the mental capacity to proceed.

The arbitrator appointed the applicant's daughter to act on his behalf pursuant to Rule 10.5 of the Dispute Resolution Practice Code.

Doodnauth Jagdharry v. Kingsway General Insurance Company, 2008 ONFSCDRS 17

Murray Tkatch

In Private Practice31 cases1995–2024

Andrew Grayson

Suspended Administratively13 cases2005–2019

David Muir

OFSCDRSOntario Financial Services Commission - Dispute Resolution ServicesJan 17, 2008

Application for income replacement benefits dismissed due to profound credibility issues and lack of medical evidence.

The applicant sought statutory accident benefits, specifically an income replacement benefit, following an alleged motor vehicle accident.

The insurer denied the claim, alleging that the applicant was part of a fraudulent ring and had misrepresented her pre-accident employment at a hair salon.

The arbitrator found that while the insurer did not conclusively prove the applicant's participation in a fraudulent ring, the applicant's evidence regarding her employment and post-accident disability was riddled with inconsistencies, gaps, and admitted untruths.

Due to profound credibility issues and a lack of credible medical evidence supporting a substantial inability to perform her pre-accident employment tasks, the application for an income replacement benefit and a special award was dismissed.

Patience Sarpong v. TD Home and Auto Insurance Company, 2008 ONFSCDRS 9

Murray Tkatch

In Private Practice31 cases1995–2024

Andrew Grayson

Suspended Administratively13 cases2005–2019

David Muir

OFSCDRSOntario Financial Services Commission - Dispute Resolution ServicesJan 17, 2008

Income replacement benefits denied due to lack of credible evidence regarding pre-accident employment and impairment.

The Applicant claimed statutory accident benefits, including income replacement benefits, following an alleged motor vehicle accident.

The Insurer denied the claims, alleging the Applicant was part of a ring to defraud insurers and that her employment was fabricated.

The Arbitrator found insufficient evidence to prove the Applicant was a knowing participant in a fraud ring, but dismissed her claim for income replacement benefits due to significant contradictions in her evidence regarding her pre-accident employment and a lack of credible evidence demonstrating an inability to perform the essential tasks of her employment.

The claim for a special award was also dismissed.

Victoria Owusu v. TD Home and Auto Insurance Company, 2008 ONFSCDRS 8

James V. Leone

16 cases2004–2024

David Muir

OFSCDRSOntario Financial Services Commission - Dispute Resolution ServicesDec 20, 2007

Arbitration application for accident benefits dismissed with costs after applicant failed to attend the hearing.

The applicant sought statutory accident benefits and a special award following a motor vehicle accident.

The applicant failed to attend the arbitration hearing and had previously lost contact with his representative, who was removed from the record.

The arbitrator dismissed the application for arbitration due to the absence of any evidence tendered in support of the claims.

The applicant was ordered to pay the insurer's reasonable expenses in the amount of $1,800.

Marwin M. Kalahi v. RBC General Insurance Company, 2007 ONFSCDRS 256

Donna Bruce

1 case2007–2007

Cameron Stark

2 cases2007–2007

David Muir

OFSCDRSOntario Financial Services Commission - Dispute Resolution ServicesDec 5, 2007

Insurer awarded $2,785.41 in arbitration expenses after applicant's statutory accident benefits claim was dismissed.

The applicant was injured in a motor vehicle accident and his claim for statutory accident benefits was dismissed in a prior arbitration decision.

In this subsequent decision on expenses, both parties sought their costs of the arbitration.

The arbitrator found that the applicant's case lacked merit, as he brought almost no evidence to support his claims.

Applying the criteria under the Expense Regulation, the arbitrator concluded that the insurer was entitled to its reasonable expenses.

The insurer was awarded $2,785.41 in fees and disbursements, taking into account the applicant's conduct that protracted the process.

Ahasanul Mazumder v. Security National Insurance Co./Monnex Insurance Mgmt. Inc., 2007 ONFSCDRS 242

Jean-Francois LaBerge

1 case2007–2007

Adam Ezer

15 cases2007–2020

David Muir

OFSCDRSOntario Financial Services Commission - Dispute Resolution ServicesDec 3, 2007

Insurer's motion to dismiss arbitration for abuse of process denied due to defective notice of assessments.

The insurer brought a motion to dismiss the insured's application for arbitration, arguing that the insured's repeated failure to attend insurer's examinations and failure to pay a prior expense order amounted to an abuse of process.

The arbitrator dismissed the motion, finding that the insurer failed to prove it had sent the notices of assessment to the insured's correct address, despite knowing he had moved.

The arbitrator also found that the failure to pay the prior expense order was not an abuse of process, as the insurer had taken no steps to collect it and the insured's former representative had been disbarred.

Taoufik Bouchahma v. Aviva Canada Inc., 2007 ONFSCDRS 238

Vikram Kapur

In Private Practice3 cases2007–2021

Alexander Curry

6 cases2007–2017

David Muir