Jeffrey Rogers

The appellant sought to rescind a 2003 settlement of his accident benefits claim and proceed to arbitration for further income replacement benefits.

The Arbitrator found that the Full and Final Release precluded arbitration because the Settlement Regulation's cooling-off and disclosure provisions do not apply to settlements reached after a court action has commenced.

On appeal, the Director's Delegate upheld the Arbitrator's decision, finding that binding Court of Appeal precedent established that the Settlement Regulation does not apply in the context of litigation, and subsequent regulatory amendments did not alter this principle.

Following an appeal and cross-appeal regarding statutory accident benefits where both parties enjoyed mixed success, both parties sought their legal expenses of the appeal.

The Director's Delegate found that neither party enjoyed a significantly greater degree of success that would warrant an award of expenses.

The parties were ordered to bear their own expenses of the appeal and cross-appeal.

The appellant appealed an arbitrator's decision precluding him from proceeding to arbitration for accident benefits due to his failure to submit a completed Application for Accident Benefits within 30 days of receiving it.

The appellant argued he was not required to provide a reasonable explanation, that the insurer had enough information to adjust the claim, and that his reliance on counsel explained the delay.

The Director's Delegate dismissed the appeal, finding that section 34 of the Schedule requires a reasonable explanation for breaching the 30-day limit, and applying the Court of Appeal's decision in Cervo that mere reliance on counsel does not constitute a reasonable explanation.

The appellant appealed an Arbitrator's decision denying his request for interest and a special award following a settlement for attendant care and housekeeping benefits.

The Director's Delegate upheld the Arbitrator's finding that the appellant was required to provide proof of ongoing incurred expenses before the insurer was obligated to pay the settled benefits, and that the insurer's request for such proof did not warrant a special award.

However, the Delegate found the Arbitrator erred in denying interest on the delayed payments, ruling that interest is mandatory and compensatory under the Statutory Accident Benefits Schedule even when an insurer legitimately requests further information.

The appeal was allowed in part to award interest.

The appellant, a licensed paralegal, appealed an Arbitrator's decision ordering him to personally pay a portion of the insurer's expenses after his client's application for arbitration was withdrawn.

The Arbitrator had found the application frivolous and vexatious.

On appeal, the Director's Delegate found that the appellant was not given a reasonable opportunity to make representations regarding his personal liability for expenses, as required by section 282(11.4) of the Insurance Act, because he was only notified of the claim against him the day before the hearing.

The appeal was allowed, the order for expenses against the appellant was set aside, and the issue was remitted for re-hearing.

The appellants, minors injured in a motor vehicle accident, appealed an Arbitrator's decision dismissing their claim for a special award and ordering them to pay the insurer's expenses.

The Director's Delegate found that the Arbitrator breached natural justice by failing to provide reasons for the expenses award, rescinding that portion of the order and remitting it for a re-hearing.

However, the Delegate upheld the dismissal of the special award claim, finding the Arbitrator correctly concluded there was insufficient evidence that the insurer unreasonably withheld or delayed payments.

The Delegate also held that while the Arbitrator may have erred in applying witness notice rules to a party, the exclusion of the appellant's testimony had no bearing on the outcome.

The appellant appealed an arbitrator's decision finding that a settlement was invalid because the claimant had died prior to the settlement being reached.

The Director's Delegate found that the arbitrator misapprehended the facts, as both parties were aware of the claimant's death when the settlement was negotiated.

Applying the doctrine of relation back, the Director's Delegate held that the settlement was binding, as the solicitor subsequently met the conditions to remedy his lack of authority.

The appeal was allowed and the arbitrator's order was rescinded.

The insured was injured in a motorcycle accident and failed to notify his insurer of a potential claim until years later.

The arbitrator found the insured had a reasonable explanation for the delay and could proceed to arbitration despite not filing a Report of Mediator, as mediation was deemed to have failed.

On appeal, the Director's Delegate upheld the finding of a reasonable explanation but allowed the appeal on the basis that the insured had never claimed a specific accident benefit.

Consequently, there were no issues in dispute that had failed at mediation, precluding the insured from proceeding to arbitration.

Following the dismissal of the appellant's appeal regarding whether he was injured in an 'accident', the successful insurer requested an expense hearing.

The insurer claimed $6,789.53 in fees and $731.99 in disbursements.

The Director's Delegate found the claimed fees excessive for a straightforward, single-issue appeal and noted that court reporter costs are not recoverable disbursements.

Making a global assessment of reasonable expenses, the Delegate ordered the appellant to pay the insurer $2,800 inclusive of disbursements and HST.

The respondent sustained a catastrophic impairment in a 2012 motor vehicle accident and received attendant care services from her mother, who took an unpaid leave from work.

Effective February 1, 2014, the Statutory Accident Benefits Schedule was amended to limit attendant care benefits for non-professional providers to the amount of their economic loss.

The arbitrator found that the amendment did not apply to the respondent because her accident occurred before the amendment.

On appeal, the Director's Delegate reversed the decision, holding that under s. 268(1) of the Insurance Act, the amendment applies to all existing policies and claims for services provided after the amendment's effective date.

The respondent did not have a vested right to have her benefits determined under the pre-amendment Schedule.

Following the dismissal of the appellant's Application for Variation or Revocation regarding statutory accident benefits, the respondent insurer sought its legal expenses.

The Director's Delegate rejected the appellant's arguments that the issues were novel or that the expense hearing should be adjourned pending judicial review.

Finding the insurer's claimed amount of $3,642.15 to be high compared to the average expense award, the Delegate ordered the appellant to pay $2,800 in legal appeal expenses.

The insurer appealed an Arbitrator's decision denying its motion to stay or dismiss the arbitration.

The insurer argued that the arbitration duplicated claims made in a concurrent Superior Court action arising from the same motor vehicle accident.

The Director's Delegate dismissed the appeal, finding that the Arbitrator correctly applied the Wasiela factors and concluded that the issues were not substantially similar.

The court action sought declaratory relief regarding a priority dispute, whereas the arbitration involved specific claims for accident benefits.

Both parties appealed an Arbitrator's decision regarding statutory accident benefits following a motor vehicle accident.

The Director's Delegate found that the Arbitrator breached procedural fairness by failing to provide adequate reasons for awarding attendant care, housekeeping, medical/rehabilitation benefits, and the cost of assessments.

The Delegate upheld the Arbitrator's finding that the accident caused the insured's shoulder injury and the award of income replacement benefits, but found no evidentiary basis for limiting the benefits to a three-month post-surgery period.

The Delegate also found the Arbitrator's dismissal of a special award to be self-contradictory given the finding that the insurer unreasonably withheld benefits.

The unsupported and unreasoned portions of the decision were rescinded and remitted for rehearing.

The appellant rescinded a 2005 full and final settlement of his accident benefits claims after a 2012 decision found the Settlement Disclosure Notice defective.

The insurer subsequently paid the claimed benefits with interest calculated from the date of rescission.

The appellant sought further interest from the dates the benefits originally became overdue, as well as a special award.

The Director's Delegate allowed the appeal in part, finding the Arbitrator erred in concluding that the appellant's conduct or the settlement itself constituted unusual circumstances precluding interest.

The Delegate ordered interest on housekeeping, caregiver, and non-earner benefits from the dates they became overdue, but denied further interest on attendant care and medical/rehabilitation benefits due to the lack of prior applications.

The issues of a special award and arbitration expenses were remitted for re-hearing.

The appellant applied to vary or revoke previous orders that dismissed his application for arbitration as an abuse of process.

He claimed to have new evidence, consisting of medical reports and correspondence from his treating physicians dating back to 1997 and 1998.

The Director's Delegate dismissed the application, finding that the proposed evidence was not 'new' as it could have been obtained earlier with due diligence.

Furthermore, the evidence would not have changed the outcome, as it related to the merits of the claim rather than the finding of abuse of process.

The appellant was ordered to pay $2,500 in expenses.

Following the dismissal of TTC Insurance Company's appeal regarding the authority of the executrix to instruct counsel, the Estate of Francis Agius sought its legal expenses for the appeal.

The Director's Delegate found the Estate was entitled to its expenses based on its success.

The Delegate declined to fix arbitration expenses, as the arbitration was ongoing, but awarded the Estate $2,500 for the appeal expenses.

The appellant, a pedestrian struck by a vehicle, appealed an Arbitrator's decision denying his claims for non-earner and housekeeping benefits.

He argued that the insurer's delay in denying the benefits created a presumption of entitlement, that hospital records should have been accepted as prima facie proof of causation, and that the Arbitrator misapplied the causation test.

The Director's Delegate dismissed the appeal, finding that the appellant was still required to prove entitlement despite any procedural breach by the insurer, that the hospital records were hearsay regarding causation, and that the Arbitrator correctly applied the causation tests.

The appellant, a minor, appealed an Arbitrator's decision ordering him to pay $3,172.50 in arbitration expenses to the respondent insurer after his application for arbitration was withdrawn.

The Director's Delegate allowed the appeal, finding that the Arbitrator failed to provide adequate reasons for the expense award, which constituted a breach of natural justice.

The Arbitrator had merely stated the parties' positions and a bald conclusion without explaining the basis for finding the expenses reasonable.

The decision was rescinded and the matter remitted for a rehearing before a different Arbitrator.

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

She elected to receive caregiver benefits instead of income replacement benefits.

The insurer sent contradictory Explanations of Benefits regarding her eligibility for income replacement benefits.

More than two years later, she applied for mediation for income replacement benefits.

The Arbitrator dismissed the application as time-barred.

On appeal, the Director's Delegate found that the insurer's denial was not clear and unequivocal due to the contradictory notices, meaning the two-year limitation period was not triggered.

Furthermore, because the initial election was invalid, the 30-day time limit to re-elect was negated.

The appeal was allowed, permitting the appellant to pursue her claim for income replacement benefits.

The applicant sought to vary or revoke an arbitrator's decision denying his claims for income replacement, attendant care, and housekeeping benefits, relying on new medical reports as 'new evidence'.

The Director's Delegate dismissed the application, finding that the proposed evidence could have been obtained prior to the original hearing with due diligence.

Furthermore, the Delegate held that even if admitted, the new evidence would not have led to a different result, as it did not address the arbitrator's core findings regarding the applicant's lack of credibility, failure to prove income loss, and demonstrated functional abilities.