Jeffrey Rogers

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits from the Motor Vehicle Accident Claims Fund (MVAC Fund).

The applicant later sought to add Wawanesa Mutual Insurance Company as an insurer to the arbitration.

The Arbitrator held that there is no jurisdiction to add Wawanesa as a party, as jurisdiction must be specifically granted or flow by necessary implication.

Section 281(2) of the Insurance Act prohibits arbitration without prior mediation, which had not occurred with Wawanesa, and O. Reg. 283/95 establishes a separate process for priority disputes.

The motion was denied.

The applicant was four months pregnant when she was involved in a motor vehicle accident.

She claimed caregiver benefits for services provided to the child she was carrying, who was born after the accident.

The insurer denied the claim.

The Arbitrator held that the en ventre sa mere fiction does not apply to a claim for caregiver benefits because the benefit is not a right of the child, the scheme of the Schedule does not require a principled extension of the fiction, and the language of the legislation ousts the fiction.

The applicant was therefore precluded from receiving the weekly caregiver benefits claimed.

The Applicant applied for arbitration at the Financial Services Commission of Ontario to dispute the Insurer's denial of statutory accident benefits following a motor vehicle accident.

The Applicant's solicitors were previously removed from the record, and the Applicant failed to attend the reconvened pre-hearing and the arbitration hearing.

As no evidence was tendered to support the application, the Arbitrator dismissed the claim.

The Insurer sought its expenses for the arbitration.

The Arbitrator awarded the Insurer partial expenses of $1,842.11, limiting the hourly rate for legal fees to the Legal Aid rate as prescribed by Rule 78.1 of the Dispute Resolution Practice Code, and denying expenses related to the Insurer's unsuccessful opposition to the removal of the Applicant's solicitors.

The Applicant was injured in a motor vehicle accident at age 12.

She claimed entitlement to an education disability benefit (EDB) and a loss of earning capacity benefit (LECB) upon turning 16.

The preliminary issues were the applicable disability test for EDBs at age 16 and whether she was entitled to an LECB offer.

The Arbitrator held that because more than 104 weeks had passed since she first qualified for EDBs at the time of the accident, the stricter test of a complete inability to carry on a normal life applied under section 15(4) of the Schedule.

Furthermore, the insurer was not required to make an LECB offer at age 16 because it had already stopped paying weekly benefits.

The applicant sought statutory accident benefits after passing out on a sidewalk and falling into the side of a passing vehicle.

The insurer raised the preliminary issue of whether the incident constituted an 'accident' under section 2(1) of the Statutory Accident Benefits Schedule.

The applicant argued the insurer was estopped from raising this issue due to delay.

The Arbitrator found no promissory estoppel as the applicant did not rely on the insurer's silence to his detriment.

However, the Arbitrator ruled that the incident was an 'accident' because the use or operation of the automobile directly caused the applicant's injuries, distinguishing the case from situations where an independent intervening act breaks the chain of causation.

The applicant sought statutory accident benefits after suffering a broken neck, claiming he fell out of his van while attempting to sleep in it after a party.

The insurer denied benefits, arguing the injury was not caused by an 'accident' as defined in the Schedule.

The arbitrator found the applicant's evidence unreliable due to his heavy intoxication, inconsistencies in his reporting, and the physical evidence at the scene.

Accepting expert medical and biomechanical evidence, the arbitrator concluded the injury was likely caused by prolonged extreme neck posturing while lying intoxicated on the ground, rather than a fall from the van.

The application for arbitration was dismissed.

The applicant's solicitors brought a motion to be removed from the record after losing contact with their client.

The insurer opposed the motion and sought an order for expenses against the solicitors personally, arguing they filed the application without authorization and that it was frivolous.

The arbitrator granted the motion to remove the solicitors, finding they made reasonable efforts to contact the client.

The arbitrator dismissed the insurer's request for expenses, noting that lack of authority is excluded as grounds for personal costs against a solicitor under the Insurance Act, and the application could not be deemed frivolous without assessing its merits.

The applicant, who was injured in a motor vehicle accident, brought a motion to exclude the insurer's evidence regarding whether his impairments resulted from a pre-existing condition, arguing res judicata based on a prior arbitration decision.

The insurer had appealed the prior decision, and the appeal decision was pending.

The arbitrator adjourned the motion until after the appeal decision was released, finding it inefficient to proceed when the appeal could render the motion moot.

The insurer's request for expenses thrown away due to late delivery of the motion was reserved until the completion of the arbitration.

The insurer applied to vary or revoke an arbitration order regarding the quantum of income replacement benefits, arguing the insured was self-employed rather than employed.

The arbitrator dismissed the application, finding that the insurer's challenge to the previous arbitrator's ruling on jurisdiction was effectively an appeal, not an error in the order.

Furthermore, the evidence regarding employment status was not 'unavailable' at the original hearing; rather, the insurer failed to act diligently to mediate the issue in a timely manner.

The applicant in a statutory accident benefits dispute brought a motion to remove the insurer's solicitors from the record, alleging a conflict of interest involving a private investigator.

The applicant also summoned several lawyers from the insurer's firm.

The insurer moved to quash the summonses.

The applicant subsequently withdrew her motion.

The insurer sought its expenses for both motions.

The arbitrator found the applicant's motion was unnecessary and tended to prolong, obstruct, or hinder the proceedings.

The insurer was awarded $2,500 in expenses.

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

The arbitrator found that the insurer was entirely successful and therefore entitled to expenses under section 12(2) of O. Reg. 664/90.

The arbitrator adjusted the claimed hourly rate to the maximum permitted under the Legal Aid Services Act, 1998, awarding the insurer $4,067.36 in fees and disbursements.

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

The insurer terminated her weekly income replacement benefits, and the applicant applied for arbitration.

The applicant's solicitors were removed from the record, and she subsequently failed to attend the scheduled arbitration hearing despite being notified.

As no evidence was tendered to support the application, the arbitrator dismissed the application.

No expenses were awarded.

Following an arbitration decision awarding the applicant non-earner benefits for approximately 50 weeks, both parties sought their expenses of the hearing.

The insurer had made an offer to settle six days before the hearing, which was slightly better than the arbitration outcome.

The arbitrator found that the parties had mixed success and that the offer to settle should be given no weight because it was delivered only three business days before the hearing, giving the applicant insufficient time to consider it.

The arbitrator ordered that the parties bear their own expenses.

The Applicant, injured in a motor vehicle accident, sought to participate in a pre-hearing discussion by telephone due to an eye infection.

The Insurer opposed, arguing it had a right to require her in-person attendance to assess her as a witness.

The Arbitrator allowed the Applicant to participate by telephone, finding she had a valid medical reason, the Insurer had no right to discovery in the arbitration process, and requiring an adjournment for an in-person attendance would cause unnecessary delay and expense for a dispute involving a small amount.

The applicant was injured in a motor vehicle accident and applied for enhanced statutory accident benefits, claiming a catastrophic impairment based on Glasgow Coma Scale (GCS) scores of 9 or less.

The insurer disputed the scores, relying on a neurologist's opinion that the first responders erred in their assessments because the applicant was combative.

The arbitrator rejected the neurologist's theoretical opinion, preferring the contemporaneous assessments of the trained paramedics and emergency room staff.

The arbitrator concluded the applicant suffered a catastrophic impairment.

The applicant sought to fix the quantum of a special award previously ordered against the insurer for unreasonably delaying the payment of income replacement benefits, housekeeping benefits, and interest.

The arbitrator applied the Persofsky factors, considering the insurer's blameworthiness, the harm to the financially vulnerable applicant, and the need for deterrence.

The arbitrator fixed the total special award at $26,250 and amended the previous order to explicitly require the insurer to pay $8,286.82 in outstanding interest.

The insurer sought production of an accounting report prepared by the defendants in a related tort action, which the applicant had received.

The applicant initially opposed production on the basis of litigation privilege but abandoned that position.

The arbitrator ordered the applicant to produce the report, finding that it was relevant to the quantum of income replacement benefits and that its production would likely simplify and expedite the arbitration process by avoiding the need for the insurer to commission a further report.

The insurer sought its expenses of the arbitration hearing after successfully defending a fraudulent claim for statutory accident benefits.

The arbitrator assessed the insurer's claim for legal fees and disbursements.

The arbitrator disallowed fees for preparing and attending mediation, noting that the Insurance Act only confers discretion to award expenses for the arbitration proceeding itself.

The arbitrator also reduced the disbursements claimed for two accident reconstruction experts, finding that calling both as witnesses was unnecessary and that the second expert's brief report did not justify the amount claimed.

The applicant was ordered to pay the insurer $4,911.80 in expenses.

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

A dispute arose and the applicant applied for arbitration.

During a pre-hearing discussion, the applicant's counsel advised of a breakdown in the solicitor-client relationship and sought to be removed from the record, with the applicant's consent.

The applicant also sought to withdraw the arbitration application without costs.

The insurer consented to both requests.

The arbitrator ordered the removal of the solicitors from the record and the withdrawal of the arbitration without costs.

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

She had been injured in a prior accident seven months earlier, which had prevented her from performing these activities at the time of the second accident.

The arbitrator held that entitlement to these benefits is based on the activities the insured actually performed at the time of the accident, not on a retained status.

Because the applicant was not the primary caregiver and did not normally perform housekeeping activities at the time of the second accident due to impairments from the first, she was not entitled to the claimed benefits.

The application was dismissed.