David R. Draper

The appellant insurer appealed an arbitration decision allowing the respondent insured to proceed with her claim for income replacement benefits (IRBs).

The insured had returned to work within 104 weeks of the onset of her disability but later worked for more than 90 days after the 104-week mark before resigning due to her injuries.

The Director's Delegate dismissed the appeal, holding that under section 14(1) of the SABS-1994, an insured who returns to work within 104 weeks preserves their right to resume receiving IRBs if they are subsequently unable to continue working due to the accident, regardless of how long they worked after the 104-week mark.

The appellant appealed an arbitration decision that denied him income replacement benefits after September 25, 1995.

He argued that the arbitrator imposed an inappropriately high burden of proof due to his friendship with his employer and erred in defining his essential tasks by not considering planned expansions to the farm where he worked.

The Director's Delegate dismissed the appeal, finding that the arbitrator properly assessed the evidence and correctly determined that essential tasks must be based on the employment at the time of the accident, not speculative future plans.

No appeal expenses were awarded.

The respondent was seriously injured when a bomb placed under the driver's seat of his parked vehicle exploded as he prepared to start it.

He applied for statutory accident benefits, and an arbitrator initially ruled the incident was an 'accident' under the Statutory Accident Benefits Schedule, applying the Supreme Court's reasoning in Amos.

On appeal, the Director's Delegate rescinded the arbitration order, finding that the Ontario legislation's 'caused by' wording is narrower than the 'arising from' wording in Amos.

The Delegate concluded that the respondent's injuries were caused by the independent act of the bomber using the vehicle as a location to hide the bomb, rather than by the ordinary use or operation of the automobile.

The appellant insurer appealed an interim arbitration decision, arguing that the arbitrator should not continue to conduct the hearing due to a reasonable apprehension of bias.

The Director's Delegate allowed the appeal to proceed solely on the issue of whether the arbitrator could continue.

The Director's Delegate found that the combination of procedural confusion, the rulings made by the arbitrator, and the contentious nature of the preliminary hearing established a reasonable apprehension of bias.

The appeal was allowed, and it was ordered that the arbitration hearing must be conducted by a different arbitrator.

The insurer appealed an arbitration decision awarding the respondent additional weekly income benefits and a special award.

The insurer argued the arbitrator erred in law by admitting oral testimony from the respondent's medical expert that went beyond his written reports, causing unfair surprise.

The Director's Delegate dismissed the appeal, finding that the expert's testimony regarding the respondent's medication and physical limitations was a reasonable amplification of his reports and the medical record.

Furthermore, the insurer's counsel did not object to the testimony at the hearing, chose to cross-examine the expert, and did not request an adjournment to call responding evidence, thereby waiving the right to claim procedural unfairness.

The appellants were injured in a motor vehicle accident and received weekly income benefits for 156 weeks before the insurer terminated them.

More than two years after the termination, the appellants applied for mediation and subsequently arbitration.

The arbitrator dismissed the arbitration, finding the claims were time-barred.

On appeal, the Director's Delegate upheld the arbitrator's decision, applying binding precedent that the two-year limitation period begins to run upon the insurer's refusal to pay, thereby rejecting the appellants' 'rolling time limit' argument.

The appellant was injured in a minor rear-end collision and received extensive rehabilitation services funded by the respondent insurer.

After the insurer terminated funding based on medical assessments indicating the appellant could return to pre-accident activities, the appellant sought funding for a holistic treatment program through Trauma Services.

The arbitrator dismissed the claim for these additional rehabilitation benefits, finding them neither necessary nor reasonable.

On appeal, the Director's Delegate confirmed the arbitrator's decision, finding no error in the arbitrator's evaluation of the evidence, including the reliance on expert testimony and the conclusion that the appellant's needs had been adequately met by the previously funded services.

The appellant appealed an arbitration decision denying his claim for statutory accident benefits.

The arbitrator had found that an agreement reached at mediation was based on a misunderstanding regarding the Workers' Compensation Board's decision on the appellant's claim, and that the appellant was precluded from receiving accident benefits under section 20 of the Statutory Accident Benefits Schedule because he was entitled to workers' compensation benefits.

The Director's Delegate dismissed the appeal, holding that the arbitrator did not exceed her jurisdiction in considering the validity of the mediation agreement.

The Delegate also confirmed that the appellant's entitlement to workers' compensation benefits, even if his claim for lost time was rejected, triggered section 20 of the Schedule and precluded his claim for accident benefits.

The appellant was injured in a motorcycle accident and claimed income replacement benefits.

He argued that the profit from the sale of a residential property should be included in his pre-accident income as business income from self-employment.

The arbitrator found that the appellant was not self-employed in relation to the property and that the profit was a capital gain, but awarded him arbitration expenses due to the complexity of the case.

Both parties appealed.

The Director's Delegate dismissed both appeals, upholding the arbitrator's findings on self-employment and the award of expenses.

The respondent was seriously injured in a head-on motor vehicle collision, sustaining a spinal displacement.

The appellant insurer paid weekly income benefits for 156 weeks but terminated them, arguing the respondent did not meet the stricter post-156 week test of being continuously prevented from engaging in any suitable employment.

On a rehearing at the appeal level, the Director's Delegate found that the respondent suffered from a mild but persistent neurological impairment that dramatically restricted her activities and endurance.

The Delegate rejected the insurer's arguments that the respondent was exaggerating her limitations or failing to pursue rehabilitation, concluding she met the post-156 week test and was entitled to ongoing weekly income benefits.

The insurer appealed an arbitration decision ordering it to pay caregiver benefits, housekeeping expenses, vehicle modifications, supplementary medical expenses, case management services, and a special award under the Statutory Accident Benefits Schedule.

The Director's Delegate held that the 1995 amendments to the SABS-1994 applied to the 1994 accident, but upheld the arbitrator's finding that the insurer failed to reasonably schedule the insurer examinations.

The appeal was allowed in part to amend the vehicle modification order to allow the purchase of a single four-wheel drive automatic vehicle, and to rescind the award for case management services provided by a paralegal.

The remainder of the arbitration order, including the special award for unreasonable delay, was upheld.

The appellant appealed an arbitration decision regarding the calculation of his weekly income benefits under the Statutory Accident Benefits Schedule.

The arbitrator had calculated his pre-accident income by averaging it over the full 52 weeks preceding the accident, rather than only the 19 weeks he actually worked.

The Director's Delegate upheld the arbitrator's decision, following recent appellate authority that pre-accident income must be averaged over the full 52-week period regardless of whether the insured person earned income throughout that period.

The appeal was dismissed and no appeal expenses were awarded.

The parties appealed an arbitration decision regarding the calculation of loss of earning capacity benefits (LECBs) and the insurer's obligation to continue paying income replacement benefits (IRBs) pending the resolution of the LECB dispute.

The Director's Delegate held that the 1995 amendments to the Statutory Accident Benefits Schedule, which removed the requirement to pay IRBs pending an LECB dispute, applied to the insured's ongoing claim and did not interfere with vested rights.

The Delegate upheld the arbitrator's calculation of pre-accident earning capacity, which considered a post-accident recall notice, and the calculation of residual earning capacity, which considered the insured's vocational preferences.

The insurer's appeal was allowed in part, and the insured's appeal was dismissed.

The appellant was injured in a motor vehicle accident and received weekly income benefits for over three years.

The insurer terminated benefits on the basis that she no longer met the post-156 week disability test.

An arbitrator dismissed her claim for ongoing benefits and a special award, finding insufficient medical evidence of disability and that the insurer acted reasonably.

On appeal, the Director's Delegate upheld the arbitrator's decision, finding no error in the assessment of the medical evidence or the conclusion that the appellant's failure to pursue recommended psychological counselling was her own responsibility.

The insurer appealed an arbitration decision that found the insured met the post-156 week test for weekly income benefits and ordered the insurer to pay ongoing benefits and certain medical and rehabilitation accounts.

The insurer argued the arbitrator failed to properly analyze surveillance evidence and conflicting medical opinions regarding the insured's pain-based limitations.

The Director's Delegate dismissed the appeal, finding that the arbitrator provided an adequate explanation for her conclusions, properly considered the surveillance evidence, and reasonably determined that the disputed accounts were necessary expenses.

Both parties appealed an arbitration decision regarding the insured's entitlement to weekly income benefits beyond 156 weeks following a motor vehicle accident.

The insurer appealed the finding that the insured met the post-156 week test and the order to pay a $5,000 special award for unreasonably terminating benefits.

The insured appealed the amount of the special award and the deduction of 100 per cent of her collateral disability benefits.

The Director's Delegate dismissed both appeals, finding that the arbitrator's conclusions on entitlement and the special award were supported by the evidence, and that the plain meaning of the Schedule supported the 100 per cent deduction of collateral benefits.

The parties cross-appealed an arbitration decision regarding weekly income benefits and arbitration expenses following a motor vehicle accident.

The insured appealed the denial of weekly income benefits after September 5, 1994, and the refusal to adjourn the hearing to cross-examine the insurer's medical expert.

The insurer appealed the order requiring it to pay the insured's arbitration expenses, arguing that November 1996 amendments to the Insurance Act should have been applied.

The Director's Delegate dismissed both appeals, finding that the arbitrator's conclusions on benefits were supported by the evidence, the refusal to adjourn was a reasonable exercise of authority, and the new expense provisions did not apply retroactively to proceedings commenced before the amendments.

The insured was awarded $250 in appeal expenses for responding to the insurer's appeal.

The appellant insurer appealed an arbitration decision finding it responsible for paying accident benefits to the injured respondent.

The injured respondent was a passenger in a vehicle insured by the respondent insurer, but was the spouse of a named insured under the appellant's policy.

The Director's Delegate held that the injured respondent qualified as an 'insured person' under the appellant's policy because she was an occupant of 'any other automobile'.

Under the priority rules, she was required to claim benefits from her spouse's insurer.

The appeal was dismissed.

The Director's Delegate also held there was no jurisdiction to award appeal expenses between insurers.

The appellant insurer appealed an arbitration order finding it responsible for paying statutory accident benefits to the respondent driver.

The driver was injured in a single-vehicle accident while operating a commercial truck made available for his regular use by his employer.

The Director's Delegate dismissed the appeal, holding that the driver was an 'insured person' under his personal automobile policy because the accident involved 'another automobile' within the meaning of the Statutory Accident Benefits Schedule.

Furthermore, the deeming provisions of the Schedule did not alter the priority rules under section 268(2) of the Insurance Act.

The appellant insurer appealed an arbitration order finding it responsible for paying accident benefits to the injured respondent.

The respondent was injured while driving a taxi insured by the respondent insurer, but his spouse had a personal automobile policy with the appellant.

The Director's Delegate applied the reasoning from a related appeal and concluded that, because the respondent was the spouse of the named insured under the appellant's policy, section 268(5) of the Insurance Act required him to claim benefits under that policy.

The appeal was dismissed.