David R. Draper

The insured was involved in two separate motor vehicle accidents and commenced multiple court actions against different insurers and tortfeasors.

She subsequently applied for arbitration at the Financial Services Commission of Ontario to claim specific chiropractic and dental expenses from her first insurer, Royal & SunAlliance.

The insurer appealed an arbitrator's preliminary order that allowed the arbitration to proceed and awarded interim benefits.

The Director's Delegate allowed the appeal, finding that the arbitration and court proceedings involved overlapping factual and legal issues, particularly regarding causation.

The arbitration was stayed pending the outcome of the court action to avoid duplicitous proceedings and inconsistent results.

The insured person was injured in a motor vehicle accident and commenced both a court action and an arbitration proceeding for statutory accident benefits.

The insurer appealed an arbitration order that allowed the arbitration to proceed despite the concurrent court action.

The Director's Delegate allowed the appeal, finding that the arbitrator erred by focusing only on whether the specific benefits claimed were different, rather than considering the substantial factual overlap between the two proceedings.

Applying the criteria for avoiding multiple proceedings, the Director's Delegate stayed the arbitration pending the outcome of the court action, noting that the court action was broader in scope and involved overlapping medical evidence and causation issues.

The respondent's daughter and son were killed in a motor vehicle accident in India.

The respondent did not notify her insurer, Liberty Mutual, of the accident for three and a half years.

She claimed death benefits and funeral expenses.

The arbitrator found that the respondent had a reasonable excuse for the delay due to her profound grief, disabilities, and language barriers.

The arbitrator also found that the respondent was principally dependent for care on her daughter, and that her son was financially dependent on her.

Liberty Mutual appealed.

The Director's Delegate dismissed the appeal, finding that the arbitrator's factual findings were supported by the evidence.

The appellant appealed a preliminary arbitration order that denied his request for the production of all surveillance information obtained by the insurer, regardless of whether the insurer intended to rely on it at the hearing.

The Director's Delegate found no error of law in the arbitrator's application of the Dispute Resolution Practice Code, which only requires production if the insurer intends to rely on the surveillance.

However, the appeal was allowed in part to amend the order to strictly reflect the wording of Rule 37, requiring production if the insurer intends to rely on 'any portion' of the surveillance evidence.

The appellant was involved in a motor vehicle accident and reported it to his insurer, who promptly sent him an application package for accident benefits.

The appellant did not submit the application until more than a year later.

At arbitration, the arbitrator found the claim was out-of-time, rejecting the appellant's argument that he had a reasonable excuse because he allegedly did not receive the portion of the package explaining the 90-day time limit.

On appeal, the Director's Delegate upheld the arbitrator's factual findings and dismissed the appeal, confirming that the appellant failed to comply with the statutory time limits without a reasonable excuse.

The appellant appealed an arbitration order denying her weekly income benefits after the 156-week mark following a motor vehicle accident.

The Director's Delegate dismissed the appeal, finding no error of law in the arbitrator's decision that the appellant's accident-related injuries did not prevent her from pursuing suitable employment.

The appellant was ordered to pay $750 in appeal expenses due to her actions prolonging the proceedings and raising unfounded grounds.

The appellant was injured in a motor vehicle accident and received weekly income benefits from the respondent insurer.

The appellant subsequently signed a release in exchange for a final payment of $800, terminating his right to further weekly benefits.

Years later, the appellant sought to set aside the release, arguing it was unconscionable and signed under duress.

The arbitrator upheld the release, finding the settlement was not grossly inadequate or unfair given the medical evidence that the appellant could return to work.

On appeal, the Director's Delegate confirmed the arbitration order, holding that the insurer's failure to recommend independent legal advice did not invalidate the settlement and that there was no basis to interfere with the arbitrator's finding that the settlement was not unconscionable.

The insurer appealed an arbitration order that included a post-accident disability tax credit in the calculation of a student's pre-accident earning capacity (PEC) for Loss of Earning Capacity Benefits (LECBs) under the SABS-1994.

The Director's Delegate dismissed the appeal, finding that the PEC for students is a notional amount based on the Average Weekly Earnings, and the conversion to net weekly income under sections 81 and 85 explicitly includes the disability tax credit without restriction.

The calculation of tax liability is determined at the time the calculation is done, meaning the insured's current tax status governs.

The appellant was assaulted and his car was stolen in an underground parking garage as he approached his vehicle.

He applied for statutory accident benefits, which were denied on the basis that the incident was not an 'accident' under the SABS-1994.

The arbitrator found that the appellant had not yet reached his car and that the vehicle's use or operation was merely an intention, not a direct or indirect cause of the injuries.

On appeal, the Director's Delegate upheld the decision, finding that the assault did not meet the first part of the Amos test as it was not an ordinary and well-known activity to which automobiles are put.

The appellant, who was paralyzed in a motorcycle accident, appealed an arbitration decision that denied several of his claims for rehabilitation expenses under the Statutory Accident Benefits Schedule.

The disputed expenses included apartment furnishings, home air conditioning, vehicle leasing costs, and minivan modifications.

The Director's Delegate dismissed the appeal, finding that the arbitrator's conclusions regarding which expenses were reasonable and necessary were fully supported by the evidence.

Liberty Mutual appealed an arbitration order awarding the respondent loss of earning capacity benefits (LECBs).

The insurer argued the arbitrator erred in calculating both the pre-accident earning capacity (PEC) and residual earning capacity (REC), specifically by accepting a PEC higher than the respondent's reported tax income and finding a REC of zero.

The Director's Delegate dismissed the appeal, holding that the arbitrator took an appropriately flexible approach to determining PEC for a self-employed individual and made no error of law in rejecting the insurer's proposed residual employment options.

The appellant appealed an arbitration decision denying his claims for ongoing weekly income benefits and income replacement benefits from two insurers following two motor vehicle accidents.

The arbitrator found the appellant was capable of working as a truck driver and had exaggerated his limitations, relying on medical evidence including a Ministry of Transportation medical report completed by his own orthopaedic surgeon.

The Director's Delegate upheld the arbitrator's findings, confirming the denial of benefits, the order to repay $3,750 in available collateral benefits to Allstate, and the refusal to order special awards.

The appeal was dismissed with expenses awarded to the insurers.

The appellant insurer appealed an arbitration decision finding that monthly benefits received by the respondent under a private disability insurance policy were not deductible from income replacement benefits and loss of earning capacity benefits payable under the SABS-1994.

The Director's Delegate reviewed the history of the deductibility of collateral benefits and concluded that the private disability benefits were not 'payments for loss of income' under an 'income continuation plan' within the meaning of section 75(1) of the SABS-1994.

The appeal was dismissed.

The respondent was injured while operating a Cushman Turf-Truckster in the course of his employment at a golf course.

He applied for statutory accident benefits from his wife's automobile insurer, the appellant.

The arbitrator found that the turf-truckster was an automobile and that the employer's private accident insurance policy was not a worker's compensation plan, entitling the respondent to benefits.

On appeal, the Director's Delegate reversed the decision in part, holding that the turf-truckster is not an automobile in ordinary parlance and was not required to be insured under the Compulsory Automobile Insurance Act or the Off-Road Vehicles Act at the time of the off-road incident.

The appeal was allowed and the respondent was found not entitled to statutory accident benefits.

The appellant appealed an arbitrator's order dismissing her application for arbitration as premature and ordering her to pay a $3,000 assessment for abuse of process.

The Director's Delegate dismissed the appeal, finding that the issues in dispute had not been mediated as required by section 281(2) of the Insurance Act.

The appellant and her counsel had been given multiple opportunities to remedy the situation but failed to do so.

The arbitrator's finding of abuse of process and the resulting assessment were amply supported by the record.

The appellant appealed an arbitration order that dismissed his claims for income replacement benefits and ordered him to repay benefits previously received due to misrepresentation.

The arbitrator found that the appellant had lied about his pre-accident employment and medical history.

The Director's Delegate dismissed the appeal, finding no error in the arbitrator's assessment of the evidence and concluding that the appeal lacked merit.

The appellant was injured in a motor vehicle accident and claimed income replacement benefits (IRBs) and other expenses, arguing she was unable to continue her employment as a live-in housekeeper.

The arbitrator awarded IRBs for a brief period following the accident but concluded the appellant failed to prove ongoing disability, relying on surveillance evidence and testimony that she stopped working for reasons unrelated to the accident.

On appeal, the Director's Delegate upheld the arbitrator's decision, finding no error in the evaluation of medical evidence, the admission of hearsay, or the reliance on surveillance videotapes.

The appeal was dismissed, and the arbitrator's reduction of the appellant's expenses due to delay was affirmed.

The insured was injured in a motor vehicle accident while driving a rental van insured by American Home.

He submitted his first completed application for statutory accident benefits to American Home, which denied the claim.

He later submitted an application to State Farm, his spouse's insurer, and sought to arbitrate against State Farm when it refused to pay.

State Farm appealed a preliminary arbitration decision that allowed the insured to proceed against it.

The Director's Delegate allowed the appeal, holding that under O.Reg. 283/95, the first insurer to receive a completed application (American Home) is responsible for paying benefits pending any priority dispute.

The insured could not proceed against State Farm because it was not the first insurer to receive a completed application, and the evidence did not support the insured's claim that State Farm had improperly deflected the initial application.

The appellant appealed an arbitration decision that found his claim for weekly income benefits was time-barred.

The appellant argued that the arbitrator's refusal to allow written submissions after the hearing concluded raised a reasonable apprehension of bias, and that there was insufficient evidence he received the mediator's report to trigger the 90-day limitation period.

The Director's Delegate dismissed the appeal, finding no evidence of bias in the arbitrator's procedural rulings or conduct during the hearing.

Furthermore, the arbitrator did not err in concluding that the insurer's clear refusal to pay benefits and the mailing of the mediator's report triggered the limitation period, which had expired before the arbitration application was filed.

The appellant insurer sought to appeal an interim arbitration order that refused to order the respondent to produce his farm ledgers for 1997 and 1998.

The Director's Delegate rejected the appeal, noting that appeals from interim orders are generally not allowed under the Dispute Resolution Practice Code to avoid delay and minimize complexity.

The Delegate found that allowing the appeal would be an undue intrusion into the ongoing arbitration process, as the arbitrator was in a better position to evaluate the relative merits of the parties' positions regarding the necessity of the documents.