Eban Bayefsky

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

After mediation failed, the insured commenced a civil action in the Superior Court of Ontario and subsequently applied for arbitration at the Financial Services Commission of Ontario.

The insurer brought a motion to dismiss the arbitration on the basis of the pre-existing civil action.

The Arbitrator found that the arbitration involved substantially similar issues to the civil action, and allowing both to proceed would unduly duplicate proceedings and risk inconsistent results.

The motion was granted and the arbitration was dismissed.

The applicant was injured in a rear-end motor vehicle accident and received income replacement benefits until the insurer terminated them at the 104-week mark.

The insurer argued the applicant was capable of returning to work, relying on assessments suggesting symptom magnification and a lack of organic basis for his pain.

The arbitrator found the applicant credible and accepted medical evidence that he suffered from chronic pain syndrome, depression, and adjustment disorder as a result of the accident.

The arbitrator concluded that the combination of the applicant's physical and psychological impairments rendered him completely unable to engage in any employment for which he was reasonably suited by education, training, or experience.

The applicant was awarded ongoing income replacement benefits.

The applicant was seriously injured in a motorcycle accident and applied for statutory accident benefits.

The insurer denied the claims on the basis that the applicant knew or ought reasonably to have known that he was operating an uninsured motorcycle, as his policy had allegedly been cancelled for non-payment of premiums.

The arbitrator found that the insurer's notice of termination was defective and void ab initio because it was not clear and straightforward, and the insurer failed to follow its own cancellation procedures.

Consequently, the policy was not properly cancelled, and the insurer was not entitled to deny benefits under section 30(1)(a) of the Schedule.

The applicant applied for statutory accident benefits following a motor vehicle accident.

After the applicant failed to attend a pre-hearing conference and his representative was removed from the record, the applicant again failed to attend the resumed pre-hearing conference or respond to notices.

The arbitrator found that the applicant had effectively abandoned his arbitration and dismissed the proceeding as frivolous under Rule 68.1 of the Dispute Resolution Practice Code.

The applicant was ordered to pay $500 in arbitration expenses to the insurer.

The insurer brought a motion for the production of a Crown Brief and police records relating to drug trafficking charges against the applicant, arguing the records were relevant to the applicant's entitlement to income replacement benefits.

The applicant's counsel did not oppose the motion and subsequently sought to be removed from the record due to a breakdown in the solicitor-client relationship.

The arbitrator granted the unopposed production motion and ordered the applicant's counsel removed from the record.

The applicant's representative, Mazin Rooz Mazin, brought a motion to be removed from the record due to a breakdown in the solicitor-client relationship, as the applicant failed to attend a pre-hearing conference and could not be reached for instructions.

The insurer did not oppose the removal but sought an order requiring the representative to produce an affidavit detailing the breakdown, to determine if costs should be sought against the representative for the lost pre-hearing day.

The arbitrator granted the motion to be removed from the record but declined to order the production of the affidavit, finding it intrusive and potentially involving privileged information without a substantial basis.

The arbitrator awarded the insurer $100 in expenses for the lost pre-hearing day against the applicant, noting the insurer was represented by a paralegal.

Following a successful arbitration where the insured's claims for statutory accident benefits were dismissed, the insurer sought its arbitration expenses.

The arbitrator found that the insurer was entirely successful and that the proceeding did not raise novel issues.

Applying the general rule of thumb of a 2:1 ratio for preparation time to hearing time, the arbitrator awarded the insurer 30 hours of counsel's time.

The insurer's claim for disbursements was denied due to a lack of receipts.

The insured was ordered to pay the insurer $2,908.71 in arbitration expenses.

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

Following a preliminary issue hearing where the applicant was found not entitled to elect a non-earner benefit, the insurer sought its expenses.

The arbitrator considered the criteria under section 12 of Regulation 664, noting the insurer was entirely successful but the applicant's conduct did not unduly delay the proceeding.

The arbitrator ordered the applicant to pay $1,000 in expenses to the insurer.

The applicant sought photocopying expenses in the amount of $8,341.43 following a successful arbitration for statutory accident benefits.

The insurer did not contest the invoices.

The arbitrator found it reasonable that significant photocopying was required given the large number of exhibits and medical experts.

However, the arbitrator declined to award $1,817.84 in expenses incurred between the date final written submissions were received and the date the decision on the merits was issued, as the applicant did not explain why significant photocopying was required during that period.

The insurer was ordered to pay $6,089.29 in photocopying expenses.

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

The insurer denied claims for income replacement benefits, housekeeping benefits, and functional assessments.

After mediation failed, the applicant applied for arbitration.

The insurer raised a preliminary issue that the arbitration application was filed beyond the two-year limitation period and the 90-day period following the mediator's report.

The arbitrator found that the insurer clearly refused the benefits and that the applicant failed to apply for arbitration within 90 days of the mediator's report.

The arbitration was dismissed as time-barred.

The applicant was injured in a motor vehicle accident and initially applied for income replacement benefits (IRBs).

The insurer determined the applicant's IRBs to be nil because he had no reported pre-accident income.

The applicant then sought to elect non-earner benefits.

The arbitrator held that the applicant was not entitled to elect non-earner benefits because he was employed at the time of the accident, which qualified him for IRBs and disqualified him from non-earner benefits.

The fact that his IRB quantum was nil did not change his substantive qualification.

Furthermore, the applicant failed to claim non-earner benefits within the required 30-day period without a reasonable explanation, prejudicing the insurer.

Following an arbitration decision on the merits of a statutory accident benefits claim, the applicant sought expenses including expert witness fees, legal fees, and disbursements.

The arbitrator assessed the claimed amounts under the Insurance Act and the Dispute Resolution Practice Code.

The arbitrator awarded reduced amounts for expert witness preparation and attendance, approved an increased hourly rate of $125 for lead counsel based on experience and complexity, and applied a 3:1 ratio of preparation to hearing time for legal fees.

The issue of photocopying expenses was deferred to allow the parties to exchange supporting documentation.

The Applicant was injured in a motor vehicle accident and sought statutory accident benefits for housekeeping, attendant care, and medical expenses.

The Insurer denied the claims based on various medical and functional assessments, as well as surveillance evidence showing the Applicant performing physical tasks without apparent difficulty.

The Arbitrator found the Applicant's evidence regarding his pre- and post-accident housekeeping and attendant care needs to be unreliable and inconsistent.

The Arbitrator concluded that the Applicant failed to establish a substantial inability to perform his pre-accident housekeeping tasks, did not prove he incurred the claimed attendant care expenses, and failed to show that the additional medical treatment was reasonable and necessary.

The application for benefits was dismissed.

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.