David R. Draper

The insurer appealed an arbitration decision ordering it to pay income replacement benefits beyond the 104-week mark, a maximum special award, and arbitration expenses.

The Director of Arbitrations upheld the ongoing entitlement to income replacement benefits, finding that the evidence supported the conclusion that the insured suffered a complete inability to engage in suitable employment.

However, the special award was reduced to $5,000 because the insurer's initial reliance on its experts was not unreasonable, and the arbitration expenses were slightly reduced to exclude pre-mediation legal work.

The applicant sought to vary or revoke an arbitration order that denied her post-156 week income benefits, arguing there was new evidence and a material change in her circumstances.

The Director of Arbitrations dismissed the application, finding that the applicant could not claim a material change because she was not continuously disabled at the 156-week mark.

Furthermore, the new medical evidence post-dated the critical period by over four years, did not undermine the original factual findings, and would not have affected the outcome.

Both parties appealed an arbitration order regarding statutory accident benefits following a snowmobile accident.

The claimant, who lived on an island and ran a contracting business, sought housing expenses, rehabilitation benefits for a new boat and snowmobile, and a recalculation of his Income Replacement Benefits (IRBs) to include business losses above the $400 weekly maximum.

The Director of Arbitrations upheld the denial of housing expenses, finding they were covered by a prior settlement release.

The Director also upheld the award for the boat and snowmobile, finding sufficient evidence that they were necessary to maintain the claimant's pre-accident lifestyle.

However, the Director allowed the claimant's appeal regarding IRBs, ruling that under the plain meaning of sections 6 and 7 of the SABS-1996, the $400 maximum is applied before adding 80 per cent of post-accident business losses, meaning the claimant's IRBs could exceed $400 per week.

The appellant brought a motion to restore her appeal of an arbitration decision regarding accident benefits, arguing her former counsel withdrew the appeal without her authority.

In the alternative, she sought an extension of time to file a new appeal and an order for interim expenses to obtain a hearing transcript.

The Director of Arbitrations dismissed the motion, finding that the appellant was bound by her counsel's withdrawal of the appeal, which was clear and relied upon by the respondent.

The request for an extension of time was denied due to the significant delay of over three years and the resulting prejudice to the respondent.

The request for interim expenses was also denied, as transcripts are not formally required and the appellant failed to establish that the respondent should bear the cost at this stage.

The insurer sought leave to appeal an Arbitrator's preliminary order that allowed the insured to proceed to arbitration on the condition that he withdraw overlapping claims from his court action.

The Director of Arbitrations denied the request, finding no compelling reason to deviate from the usual rule that appeals must wait until all issues in dispute have been finally decided.

The Arbitrator's decision involved a pragmatic balancing of interests and an exercise of discretion that should not be disturbed lightly on an interlocutory basis.

The parties appealed an arbitration order regarding the calculation of the claimant's loss of earning capacity benefits.

The claimant was a self-employed hairdresser at the time of the accident.

The Director of Arbitrations found that the Arbitrator erred by failing to convert the claimant's pre-accident earning capacity from gross to net income, as required by section 81 of the Statutory Accident Benefits Schedule.

The Director accepted the calculations provided by the insurer's accounting expert and recalculated the weekly benefits accordingly, reducing the amounts payable to the claimant.

The appellant was involved in three motor vehicle accidents and sought income replacement benefits (IRBs) and loss of earning capacity benefits (LECBs) for each.

The arbitrator found the appellant was not entitled to IRBs for the second and third accidents, as they did not materially contribute to his disability.

The arbitrator also held the appellant was only entitled to one LECB offer, and that LECBs were payable from April 12, 2001, not earlier.

The appellant appealed, arguing the arbitrator erred in fact and law, and that the arbitrator had improperly participated in pre-hearing settlement discussions.

The Director of Arbitrations dismissed the appeal, finding no error in the arbitrator's conclusions and insufficient evidence of prejudice regarding the settlement discussions.

The appellant was injured in a motor vehicle accident while driving uninsured.

He sent a tort letter to the respondent insurer within the required timeframe, but did not explicitly apply for accident benefits until 18 months post-accident.

The arbitrator found that the tort letter did not constitute notice of an intention to apply for accident benefits under s. 32(1) of the SABS-1996.

On appeal, the Director of Arbitrations upheld the decision, confirming that an insurer must be alerted to the fact that the person wants to apply for accident benefits to trigger the insurer's obligation to provide an application package.

The appeal was dismissed.

The insured was involved in a motor vehicle accident and received weekly income benefits.

A dispute arose regarding her entitlement to benefits beyond the 156-week mark and whether she had been overpaid due to the receipt of collateral benefits.

At arbitration, the insured argued for the first time during final submissions that her collateral benefits were not deductible.

The Arbitrator agreed and ordered the insurer to pay additional benefits.

On appeal, the Director of Arbitrations held that the Arbitrator erred in deciding the deductibility issue without giving the insurer an adequate opportunity to respond, as it was raised too late and constituted a denial of fairness.

The insurer's appeal was allowed, and the insured's appeal regarding interest was dismissed.

The appellant appealed an Arbitrator's decision dismissing his claim for statutory accident benefits and ordering him to pay half of the insurer's arbitration expenses.

The central issue at arbitration was whether the appellant was injured on a TTC bus or a subway train, with the Arbitrator finding his uncorroborated evidence inconsistent and unreliable.

On appeal, the Director's Delegate refused to admit new medical evidence and found no errors of law in the Arbitrator's credibility findings, application of the burden of proof, rejection of the estoppel argument, or award of expenses.

The appeal was dismissed and the appellant was ordered to pay $500 in appeal expenses.

The appellant's representative, a non-lawyer acting for an assessment facility, pursued an appeal of an arbitration decision regarding unpaid assessment accounts without the appellant's specific knowledge.

The appeal was dismissed.

The insurer sought its appeal expenses.

The Director of Arbitrations held that while the representative's conduct was disgraceful, the tribunal lacked jurisdiction to order costs against a non-party.

As the named party who had signed broad authorizations allowing the facility to act as her agent, the appellant was held responsible for the insurer's appeal expenses, fixed at $1,500.

The appellant appealed an arbitration order dismissing his claim for accident benefits and ordering him to pay expenses and an assessment.

The appellant's non-lawyer representative advanced extensive arguments alleging institutional and personal bias against the Financial Services Commission of Ontario and its arbitrators.

The Director of Arbitrations dismissed the appeal, finding no error of law and concluding that the bias allegations were completely without foundation.

The Director ordered the appellant to pay $1,500 in appeal expenses and a $500 assessment, finding the appeal was frivolous, vexatious, and an abuse of process.

The applicant sought to withdraw her arbitration application without penalty, alleging institutional bias among FSCO arbitrators, and requested the appointment of a private arbitrator under s. 282(12) of the Insurance Act.

The Director of Arbitrations dismissed the bias application, finding that the applicant failed to establish bias.

Furthermore, the Director noted that s. 282(12) only authorizes the appointment of arbitrators from the roster maintained by the Superintendent, not private arbitrators.

The respondent's request for expenses was deferred to the eventual determination of arbitration expenses.

The applicant sought to withdraw his arbitration application without penalty, alleging institutional bias among FSCO arbitrators.

His representative applied to the Director of Arbitrations under s. 282(12) of the Insurance Act to appoint a private arbitrator.

The Director dismissed the application, finding no evidence of bias and noting that the Act only authorizes the appointment of arbitrators from the roster maintained by the Superintendent, not private arbitrators.

The Director also held that while he lacked authority to award expenses for the bias application, the delay caused by the application could be considered when arbitration expenses are eventually determined.

The insurer appealed an arbitration decision that ordered it to pay a maximum special award of 50 per cent ($61,829.52) for unreasonably withholding or delaying the payment of income replacement benefits.

The insurer argued that the arbitrator failed to consider the insured's failure to mitigate, the insurer's payment of the claim prior to the hearing, and that no benefits were owing at the time of the award.

The Director of Arbitrations dismissed the appeal, finding no error of law in the arbitrator's assessment of the evidence or her conclusion that the insurer's conduct warranted the maximum special award.

The respondent's counsel filed an application for arbitration without knowing his client had died a few days earlier.

The insurer argued the application was a nullity.

The arbitrator allowed the application to proceed, relying on the doctrine of relation back and Rule 9.03(3) of the Rules of Civil Procedure.

On appeal, the Director of Arbitrations held that neither the doctrine of relation back nor the Rules of Civil Procedure applied to the arbitration.

However, the Director concluded that the Dispute Resolution Practice Code provided sufficient authority to correct the defect and allowed the arbitration to proceed, provided the estate trustee confirmed his involvement.

The appellant appealed an arbitration order dismissing her claim for the cost of five medical assessments and refusing a special award against the insurer.

The appellant argued the arbitrator erred by allowing the insurer to raise new grounds for denying benefits at the hearing and by making factual errors.

The Director of Arbitrations dismissed the appeal, finding no error of law or breach of natural justice in allowing the insurer to alter its position, as the overriding factor is fairness and the appellant was not unduly prejudiced.

The Director also upheld the arbitrator's factual findings that the assessments were not reasonable expenses under section 24 of the SABS.

The appellant was ordered to pay $2,000 in appeal expenses.

The respondent, a Colorado resident, was injured in a motor vehicle accident in New York State while a passenger in an Ontario-insured vehicle.

The appellant insurer paid New York first-party benefits but denied Ontario statutory accident benefits.

The arbitrator ordered the appellant to pay Ontario benefits, finding the respondent was an 'insured person' under the policy's expanded definition.

On appeal, the Director of Arbitrations rescinded the order, holding that the expanded definition in clause (g) of the policy was intended to fill a specific gap in the priority rules for accidents involving other vehicles, and did not extend coverage to non-resident occupants injured outside Ontario.

The appellant was injured in a motor vehicle accident while working and initially claimed workers' compensation benefits.

He later sought accident benefits from his automobile insurer, which delayed processing his claim.

At arbitration, he was awarded outstanding benefits and a $65,000 special award for the insurer's unreasonable delay, but the arbitrator ordered interest only from the dates formal applications or re-elections were made.

On appeal, the appellant argued interest should run from his initial contact with the insurer due to its failure to provide forms and information.

The Director of Arbitrations dismissed the appeal, finding no error in the arbitrator's determination of when the benefits became overdue under the Statutory Accident Benefits Schedule, noting the special award already penalized the insurer for its delays.

The appellant insurer appealed an arbitration order finding that the respondent was not precluded from receiving statutory accident benefits.

The insurer argued that the respondent's election to bring a tort action instead of claiming workers' compensation benefits was made primarily for the purpose of claiming accident benefits, as she had run a red light and her tort action was unlikely to succeed.

The Director of Arbitrations upheld the arbitrator's decision, finding that the arbitrator correctly applied the test under section 59(2) of the SABS-1996.

The arbitrator's factual finding that the respondent honestly believed she had a green light at the time she commenced her action, and thus made her election in good faith, was supported by the evidence and contained no error of law.

The appeal was dismissed.