Edward Lee

State Farm appealed an arbitrator's Decision on Expenses and a subsequent Decision on a Motion (clarification order) regarding statutory accident benefits.

The Director's Delegate found that the arbitrator erred in law and violated procedural fairness by determining entitlement to Attendant Care, Housekeeping and Home Maintenance, and a special award, as these were not issues in dispute and no notice was given.

The Delegate also found the arbitrator lacked jurisdiction to issue the clarification order while the original decision was under appeal, and that the expenses awarded exceeded the maximums permitted by the Expense Regulation.

Both decisions were rescinded in their entirety.

The appellant appealed an arbitrator's decision denying an adjournment request, permitting the withdrawal of her application for accident benefits, and awarding no costs.

The appellant argued the arbitrator failed to accommodate her under the Human Rights Code, failed to act on the insurer's non-compliance with benefit information requirements, and erred in denying costs.

The Director's Delegate dismissed the appeal, finding no error of law in the arbitrator's handling of the accommodation request, noting the benefit information issue was obiter dicta, and upholding the costs determination.

The appellant appealed an arbitrator's decision dismissing his application for accident benefits and awarding $5,000 in costs to the insurer.

The appellant had failed to attend his arbitration hearing, after which his representative withdrew.

The arbitrator sent notices warning that the application might be dismissed if he did not respond, but he failed to do so.

The Director's Delegate found no error of law in the arbitrator's decision to proceed in the appellant's absence under Rule 37.7 of the Dispute Resolution Practice Code, and dismissed the appeal.

Zurich brought a preliminary motion to stay the insured's variation/revocation proceeding, arguing the insured failed to submit to an insurer's in-home occupational therapy examination and failed to produce medical documents.

The Director's Delegate dismissed the motion.

The parties reached an agreement on document production during the hearing.

Regarding the examination, the Delegate found that the insured had sufficiently submitted to the assessment by participating for over three hours, and that the assessor had gathered enough information through formal and informal observations to provide an opinion once the outstanding documents were produced.

Procedural fairness did not require a further examination.

The appellant appealed an arbitrator's decision refusing to recuse himself from a Statutory Accident Benefits Schedule arbitration on the grounds of reasonable apprehension of bias.

During a teleconference, the arbitrator had made comments suggesting the parties cooperatively agree to dates for an in-person insurer's examination, which the appellant argued demonstrated bias.

The Director's Delegate allowed the appeal, finding the arbitrator erred in law by misapplying the test for reasonable apprehension of bias from Wewaykum, improperly rationalizing his comments based on his own good faith intentions, and failing to provide intelligible reasons addressing uncontested affidavit evidence.

The arbitrator's order was set aside, and he was recused from further involvement in the file.

Following the dismissal of the appellant's statutory accident benefits appeal, the respondent requested an assessment of appeal expenses.

The Director's Delegate directed the parties to file written submissions regarding expenses.

Neither party provided submissions.

Consequently, the request for an assessment was dismissed and no award of expenses was made.

The appellant insurer filed an appeal from an arbitrator's order, which the Director's Delegate declined to hear on the basis that it was an appeal of an interim or preliminary order.

The respondent subsequently sought expenses for the appeal proceeding.

The Director's Delegate rejected the insurer's argument that expenses should be deferred until a hypothetical future hearing on the merits, and awarded the respondent $700 inclusive of disbursements and HST for the written proceeding.

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

In a previous arbitration, the arbitrator found the appellant was entitled to treatment plans but denied a special award.

On appeal, the denial of the special award was rescinded and returned to a new arbitrator for redetermination.

The second arbitrator also denied the special award.

The appellant appealed again.

The Director's Delegate found that the second arbitrator committed errors of law by making factual findings based on speculation, unsupported by evidence, and contradicting the binding factual findings of the first arbitrator.

The decision was rescinded and the issue of the special award was returned to a different arbitrator for redetermination.

State Farm appealed an arbitration order to vary the quantum of Income Replacement Benefits (IRBs) payable to the insured, who began receiving CPP disability benefits after the original order.

The Director's Delegate allowed the variation, reducing the ongoing IRB rate to account for the CPP deduction.

However, State Farm's request for repayment of past overpayments was denied because its notices under section 52 of the Statutory Accident Benefits Schedule were defective, claiming periods longer than the permitted 12 months and miscalculating the maximum allowable deduction.

Consequently, State Farm was ordered to repay the insured all amounts it had already collected through weekly deductions, with interest.

Following the dismissal of the insured's appeal, the successful insurer requested an expense hearing.

The insurer sought $7,446.03 in legal fees and disbursements for the appeal proceeding.

The Director's Delegate found the amount sought excessive, noting the insured was self-represented and her submissions largely attempted to adduce new evidence and re-argue determined issues.

The Delegate fixed the expenses payable by the insured to the insurer at $3,000.00.

The appellant was injured in a motor vehicle accident and received income replacement benefits, which were later terminated by the insurer via an OCF-9 notice.

The appellant applied for mediation more than two years after receiving the notice, and the insurer argued the application was statute-barred.

The arbitrator agreed.

On appeal, the Director's Delegate found the arbitrator erred in law by considering extrinsic evidence rather than assessing the validity of the OCF-9 on its face.

However, upon reviewing the OCF-9, the Delegate concluded the notice was valid and sufficient to trigger the limitation period, as the disputed steps outlined in the form were permissive rather than mandatory.

The appeal was dismissed.

The appellant appealed an arbitrator's decision dismissing her claims for non-earner and attendant care benefits under section 55 of the SABS.

The Director's Delegate found that the arbitrator did not err in proceeding with the hearing in the absence of the appellant's written submissions, as she had been given notice and an extension.

However, the Director's Delegate held that the arbitrator erred in law by requiring the OCF-3s to confirm entitlement to the non-earner benefit and by concluding that no valid claim for attendant care benefits had been made because no Form 1 had been filed.

The appeal was granted, the arbitrator's order was rescinded, and the matter was remitted for a hearing on the merits.

The appellant appealed an arbitrator's decision denying her claims for caregiver, housekeeping, attendant care, and medical benefits following a motor vehicle accident.

The appellant argued that the arbitrator erred in law, lacked procedural fairness, and misapprehended evidence.

The Director's Delegate dismissed the appeal, finding that the arbitrator properly weighed the evidence, made reasonable findings of fact, and committed no errors of law or breaches of procedural fairness.

The appellant's legal representative, McLeish Orlando LLP, brought a motion to be removed from the record, citing a material breakdown in communications and a loss of confidence.

The appellant opposed the motion, arguing that she had not lost confidence in her lawyer and wished for the firm to continue representing her.

The Director's Delegate found that the solicitor-client relationship had irrevocably broken down, as the appellant's own statements demonstrated a lack of confidence in her lawyer's advice and competence.

The motion to withdraw was granted.

The appellant appealed an arbitrator's decision denying his claim for an Income Replacement Benefit (IRB) following a motor vehicle accident.

The arbitrator had found that the appellant failed to produce requested financial documents regarding a corporation he controlled, making it impossible to calculate his income and resulting in an adverse inference.

On appeal, the Director's Delegate found no error of law in the arbitrator's credibility assessments, evidentiary rulings, or conclusion that the appellant failed to meet his burden of proof.

The appeal was dismissed.

Following an appeal decision that partially allowed the insured's appeal regarding attendant care benefits but dismissed the claim for Botox injections, the parties were unable to agree on the expenses of the appeal.

The Director's Delegate found that the insured had the greater degree of success, as the monthly attendant care benefits were significantly increased.

The insurer was ordered to pay the insured $3,500.00 in appeal legal expenses, inclusive of disbursements and HST.

The appellant appealed an arbitrator's decision denying him post-104 week income replacement benefits following a motor vehicle accident.

The Director's Delegate allowed the appeal, finding that the arbitrator failed to provide adequate reasons for his decision and mischaracterized the test for post-104 week benefits.

The arbitrator did not properly analyze the vocational evidence or explain how the appellant was reasonably suited for the suggested alternative employments.

The decision was rescinded and the matter returned to arbitration before a different arbitrator.

The Appellant was injured in a motor vehicle accident while serving the two-week waiting period for Employment Insurance (EI) benefits, following a period of salary continuance from his former employer.

He applied for an income replacement benefit (IRB) under the Statutory Accident Benefits Schedule.

The Arbitrator ruled that the Appellant was not entitled to an IRB because he was not 'receiving' EI benefits at the time of the accident, as required by section 5(1)(ii) of the Schedule.

On appeal, the Director's Delegate upheld the Arbitrator's decision, finding no error in the interpretation that 'receiving' requires actual payment, which had not occurred due to the statutory waiting period.

The appellant insurer appealed an arbitrator's preliminary decision finding that the issues in dispute had not been previously settled.

The insurer argued that an agreement reached between counsel constituted a binding settlement, despite the absence of a signed Settlement Disclosure Notice or release, because it did not finally dispose of all claims.

The Director's Delegate dismissed the appeal, holding that the Settlement Regulation applies to agreements that finally dispose of one or more benefits, and that the required disclosure notice and cooling-off period are mandatory consumer protection measures.

As the respondent was a person under disability and the mandatory settlement procedures were not followed, no binding settlement was reached.

The appellant sought the expenses of an appeal in which she was partially successful in overturning an arbitrator's decision regarding statutory accident benefits.

The Director's Delegate found that the appellant had the greater degree of success on the appeal and was entitled to her expenses.

The Director's Delegate fixed the appellant's legal expenses of the appeal proceedings at $2,000.00, inclusive of disbursements and HST.