Eban Bayefsky

The applicant sought statutory accident benefits following two motor vehicle accidents.

In a preliminary hearing, the arbitrator determined three issues: whether the insurer could dispute a Catastrophic Impairment Designated Assessment Centre (CAT DAC) report after seemingly accepting it on an OCF-9 form, whether the insurer could rely on surveillance evidence despite late production of investigator notes, and whether the insurer could rely on certain medical reports served late.

The arbitrator held that, following the Court of Appeal's decision in Liberty Mutual, the insurer was entitled to dispute the CAT DAC findings at arbitration.

The arbitrator also allowed the surveillance evidence and medical reports, finding no substantial prejudice to the applicant.

In a pre-hearing decision regarding a claim for statutory accident benefits, the insurer sought to add the issue of the quantum of income replacement benefits and requested production of various pre-accident employment and medical records.

The arbitrator denied the request to add the issue of quantum, noting the insurer had previously agreed to the quantum and raising it now would prejudice the applicant and complicate the proceeding.

The arbitrator also denied the production requests, finding they were not properly raised or justified at this stage of the proceeding.

At a pre-hearing conference for a statutory accident benefits dispute, the insurer sought written particulars of the applicant's claim for a special award, and the applicant requested production of the insurer's adjuster's notes beyond the date of the application for mediation.

The arbitrator ordered the applicant to provide written particulars of the special award claim, finding that the insurer was entitled to know the case it had to meet under the Statutory Powers Procedure Act.

The arbitrator denied the applicant's request for the adjuster's notes beyond the mediation application date, as the applicant had not established their relevance or provided particulars for the special award claim.

Following the dismissal of the respondent's arbitration as abandoned, the applicant insurer sought its reasonable expenses.

The respondent failed to provide submissions.

The arbitrator found that the respondent's conduct, including failing to provide productions and abandoning the proceeding, prolonged and hindered the arbitration.

The applicant was awarded $2,141.35 in expenses, representing counsel fees and disbursements for steps taken after the initial pre-hearing conference.

The applicant was injured in a rear-end motor vehicle accident and sought ongoing income replacement benefits (IRBs) and medical benefits after the insurer terminated them.

The insurer argued the applicant was not completely unable to engage in suitable employment and questioned his credibility, citing symptom magnification and malingering.

The arbitrator found the applicant credible and concluded that the accident caused significant physical and psycho-emotional impairments, including chronic pain syndrome, fibromyalgia, and post-traumatic stress disorder, rendering him completely unable to work.

The arbitrator awarded ongoing IRBs from the 104-week mark, payment of outstanding medical accounts for psychological treatment, and a $5,000 special award against the insurer for unreasonably delaying and denying benefits despite receiving medical reports supporting the applicant's disability.

The insurer brought a motion to stay the arbitration pending the insured's attendance at a proposed medical examination by a physiatrist.

The insured had previously been assessed by the same physiatrist, but subsequently submitted new medical reports from specialists diagnosing chronic pain syndrome and a complete inability to work.

The arbitrator found that the proposed examination was reasonably necessary to assist the insurer in determining the insured's entitlement to ongoing income replacement benefits in light of the significant new medical information.

However, the arbitrator declined to stay the arbitration, finding it premature to address the consequences of a potential failure to attend.

The applicant sought statutory accident benefits following a motor vehicle accident but was largely unsuccessful at arbitration.

The parties were unable to resolve the issue of expenses, leading to this costs decision.

The arbitrator considered the factors under section 12 of Regulation 664, including the insurer's success on almost all issues and the applicant's settlement offers.

Finding that the insurer did not act unreasonably in rejecting the offers and that the applicant was successful on only a very small part of her claim, the arbitrator denied the applicant her expenses.

The insurer was awarded 50% of its legal fees and disbursements, excluding travel expenses for out-of-town counsel, resulting in a costs award of $2,560.61 payable by the applicant.

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

The insurer denied the claim for income replacement benefits, leading the applicant to apply for arbitration.

The insurer brought a motion to dismiss or stay the arbitration because the applicant had commenced a parallel court action against the insurer.

On consent of the parties, the arbitrator ordered that the arbitration be stayed pending the outcome of the court action and that the parties bear their own expenses of the motion.

Following an arbitration regarding statutory accident benefits where the applicant was unsuccessful, the arbitrator determined the quantum of expenses payable by the applicant to the insurer.

The arbitrator reviewed the insurer's bill of costs, applying the maximum hourly rates permitted under the Dispute Resolution Practice Code and the Legal Aid Services Act.

After assessing the preparation and attendance time for various pre-hearing conferences, motions, and the hearing itself, the arbitrator awarded the insurer $9,063.10 in reasonable expenses and disbursements.

The applicant applied for arbitration after the insurer denied his claims for income replacement and housekeeping benefits following a motor vehicle accident.

The applicant's representatives were removed from the record due to an inability to contact him.

The applicant failed to attend the scheduled arbitration hearing and did not respond to subsequent orders from the arbitrator requiring him to confirm his intention to proceed.

The arbitrator dismissed the arbitration as abandoned and ordered the applicant to pay the insurer's reasonable expenses.

In a dispute over statutory accident benefits, the insurer brought a pre-hearing motion seeking the production of medical reports and raw data from two doctors prepared for the applicant's tort action.

The applicant objected, citing the implied undertaking rule and arguing the insurer had sufficient medical evidence.

The arbitrator ordered the production of the documents, finding that the applicant had waived any right to deny access by providing the tort reports to his own experts in the arbitration, who relied on and commented on them.

The insurer was entitled to the documents to properly respond to and cross-examine the applicant's experts.

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

The insurer denied the claims beyond June 25, 2003.

The arbitrator found that the applicant did not suffer a substantial inability to perform her pre-accident caregiving and housekeeping activities, noting she had returned to most tasks and received significant assistance from family members both before and after the accident.

The arbitrator also dismissed most of the claims for medical benefits, finding the proposed treatment plans were not reasonable and necessary given the applicant's improved condition, but awarded $540 for an outstanding physical therapy account.

The claim for a special award was dismissed.

The applicant, who was injured in a motor vehicle accident, sought production of the insurer's entire claims file, including internal activity logs and correspondence created after the application for mediation.

The insurer claimed litigation and solicitor-client privilege over certain documents.

The arbitrator dismissed the motion for production, applying the presumption that documents created after the application for mediation are for the dominant purpose of litigation.

The arbitrator found that the applicant's claim for a special award did not override the insurer's claims of privilege.

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

Following a decision dismissing her claims, the issue of expenses was addressed.

The arbitrator applied the new expense provisions under section 12(2) of Regulation 664, finding that the insurer was entirely successful, the applicant failed to respond to a reasonable settlement offer, and the applicant's conduct prolonged and hindered the proceeding.

The applicant was ordered to pay the insurer's reasonable expenses of the arbitration.

The applicant sought medical benefits following an alleged motor vehicle accident.

The insurer denied the claims, alleging the accident was staged and the applicant was not a passenger.

The applicant and her former representative failed to attend the arbitration hearing.

Based on inconsistencies in statements and evidence from another alleged passenger that the accident was fabricated, the arbitrator found the applicant was not involved in an accident and dismissed the arbitration.

The arbitrator awarded the insurer its arbitration expenses of $1,943.52, holding the applicant and her former representative jointly and severally liable due to their non-participation and the vexatious nature of the proceeding.

The applicant was injured in a motor vehicle accident and received income replacement benefits (IRBs) from the insurer.

The parties disputed the conversion of IRBs to loss of earning capacity benefits (LECBs) and the calculation of interest on overdue benefits.

The matter was remitted to the arbitrator to determine the date the parties agreed to convert IRBs to LECBs.

The arbitrator found that the parties agreed to the conversion on June 12, 1996, when the applicant signed an acknowledgement.

The insurer was ordered to pay interest on the LECBs as of June 10, 1996, to the extent of any deficiency between the benefits paid and the benefits ultimately found owing.

The applicant's claim for death benefits following the death of her daughter in a motor vehicle accident was previously dismissed because she failed to establish financial dependence.

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

Applying the criteria under Rule 75.2 of the Dispute Resolution Practice Code, the arbitrator awarded reasonable expenses to the insurer.

The arbitrator noted that while the applicant proceeded efficiently and honestly believed in the merits of her sensitive case, the insurer was entirely successful on the principal issue and no novel issues were raised.

The applicant sought arbitration for outstanding medical assessment accounts following a motor vehicle accident.

After her initial counsel's practice was taken over by the Law Society, her new counsel advised the insurer and the assessment facilities that the applicant would not be pursuing the outstanding accounts.

The applicant failed to attend the pre-hearing conference and the arbitration hearing.

The arbitrator dismissed the application, finding the applicant failed to discharge her onus of establishing entitlement to the claimed benefits.

No costs were awarded.

The insurer sought expenses following its success in a preliminary issue hearing where it was determined that the insured was precluded from proceeding with her arbitration due to a full and final settlement.

The arbitrator considered the criteria under Rule 75.2 of the Dispute Resolution Practice Code.

While the insurer was entirely successful, the insured's position was not manifestly unfounded and raised a legitimate issue regarding the cooling-off period.

The arbitrator awarded the insurer $1,500 in expenses.

The applicant sought income replacement benefits following a motor vehicle accident, claiming he was substantially unable to perform his pre-accident job as a retail investigator.

The insurer terminated benefits and sought repayment of an overpayment.

The arbitrator dismissed the applicant's claim, finding he lacked credibility and had misrepresented his pre-accident medical condition, the nature of his injuries, and the reasons for leaving his employment.

The arbitrator concluded the applicant left his job due to poor performance rather than accident-related injuries.

The applicant was ordered to repay $1,140.30 in overpaid benefits.