Arbitrator affirms Desbiens approach, allowing combination of physical and psychological impairments for catastrophic impairment threshold.
The applicant was injured in a motor vehicle accident and sought a determination of catastrophic impairment.
Her assessor combined physical and psychological impairments to reach a 55% whole person impairment, following the methodology in Desbiens v. Mordini.
The insurer's assessors refused to assign numeric ratings to psychological impairments, finding only a 20% impairment.
The arbitrator held that the Desbiens approach is binding and correct in law, allowing the combination of physical and psychological impairments.
Furthermore, the arbitrator found that issue estoppel applied, as the insurer had previously litigated and lost this exact issue against the applicant before the Director.
The applicant was declared catastrophically impaired.
Arbitration dismissed and expenses ordered against applicant after failure to appear or respond to public notice.
The applicant applied for statutory accident benefits following a motor vehicle accident.
After the applicant failed to appear at a pre-hearing and could not be reached by his counsel, his counsel was removed from the record.
The arbitrator issued a conditional order dismissing the arbitration unless the applicant responded to a public notice within 30 days.
The applicant did not respond.
The arbitration was formally dismissed, and the applicant was ordered to pay $1,500 in expenses to the insurer.
The arbitrator declined to order the applicant's former representatives to pay the expenses, finding no evidence they advanced a frivolous claim or caused unreasonable delay.
Arbitrator declines to delay hearing to accommodate insurer's counsel's schedule.
The applicant sought to schedule an arbitration hearing as soon as possible, suggesting January 2009.
The insurer's counsel was unavailable for those dates and requested March 2009.
The arbitrator held that the scheduling of the hearing is not strictly dependent on the availability of the insurer's counsel, emphasizing the statutory goal of a prompt and inexpensive resolution.
The arbitrator ordered that the hearing remain scheduled for January 12, 2009, noting the applicant's willingness to consent to an adjournment if the insurer's counsel was actually engaged in conflicting judicial commitments at that time.
Arbitration dismissed and counsel removed after applicant failed to attend hearing or communicate.
After failing to attend a pre-hearing, mediation, and scheduled appointments, his counsel brought a motion to be removed from the record, which was granted.
The insurer moved to dismiss the arbitration due to the applicant's non-attendance and failure to advance his claim.
The arbitrator dismissed the arbitration, finding that the applicant had effectively abandoned his claim after failing to respond to notices and a newspaper advertisement.
The applicant was ordered to pay the insurer's reasonable expenses.
Adjournment granted with condition that insurer resume paying attendant care benefits after unilaterally withdrawing.
The applicant sought statutory accident benefits following a motor vehicle accident.
During the arbitration hearing, the insurer's counsel requested an adjournment and subsequently refused to participate further, citing an intention to seek judicial review of the arbitrator's refusal to recuse himself.
The arbitrator granted an adjournment but imposed conditions, including an order that the insurer immediately recommence paying the applicant an attendant care benefit of $400 per week, finding that the insurer's unilateral withdrawal prejudiced the unrepresented applicant.
Motion for mistrial dismissed; arbitrator's exposure to settlement offer and hearing outburst did not compromise impartiality.
During an arbitration hearing for statutory accident benefits, the applicant became hysterical and allegedly disclosed a settlement offer.
The insurer brought a motion for a mistrial and requested the arbitrator recuse himself, arguing the disclosure and the arbitrator's decision to remain in the room during the outburst compromised his impartiality.
The arbitrator dismissed the motion, finding that professional adjudicators are capable of disregarding irrelevant settlement information and that remaining in the room to ensure safety did not create a reasonable apprehension of bias.
Applicant barred from proceeding with accident benefits claim after failing to unequivocally repudiate settlement within cooling-off period.
The self-represented applicant sought to resile from a settlement agreement reached with her insurer regarding statutory accident benefits.
The applicant argued she had repudiated the settlement within the statutory cooling-off period.
The arbitrator found that the applicant's communication within the cooling-off period merely requested an extension of time to consult a lawyer and did not constitute a clear and unequivocal repudiation of the settlement.
Consequently, the settlement remained binding, and the applicant was barred from proceeding with her arbitration claim.
Insurer's motion for documentary production dismissed as premature and barred by the implied undertaking rule.
The Insurer brought a motion for the production of various documents, including the Applicant's Ontario Scholastic Record and a medical report obtained in a related tort matter.
The Arbitrator dismissed the motion, finding that the request for the scholastic record was not relevant to the narrow issue of attendant care benefits.
Furthermore, the medical report was subject to the implied undertaking rule, and the Arbitrator lacked jurisdiction to order its production without a waiver from the court having jurisdiction over the tort action.
The motion was deemed premature, and the Applicant was awarded expenses.
Insurer denied adjournment expenses after unilaterally dropping claim against applicant's former counsel without notice.
The applicant was injured in a motor vehicle accident and previously found entitled to income replacement benefits.
In this continuation of the arbitration, the arbitrator calculated the benefits owing at $3,082.60.
The insurer sought expenses against the applicant for a prior adjournment caused by the applicant's former counsel failing to summons a key witness.
The arbitrator denied the insurer's request for adjournment expenses, finding that the insurer engaged in sharp practice by unilaterally dropping its claim against the former counsel without notice, thereby prejudicing the applicant's ability to seek indemnity.
Both parties were ordered to bear their own expenses for the arbitration.
Late expert report interpreting AMA Guides excluded for missing deadline and usurping arbitrator's role.
In an arbitration for statutory accident benefits, the insurer sought to file an expert report on catastrophic impairment after the hearing had commenced, missing the 30-day deadline under Rule 39.1 of the Dispute Resolution Practice Code.
The insurer argued that a recent Court of Appeal decision constituted a change in law justifying the late filing.
The arbitrator rejected this argument, finding no change in the law that would constitute extraordinary circumstances.
Furthermore, the arbitrator held that the report, which offered an interpretation of the AMA Guides, usurped the core function of the arbitrator and was therefore inadmissible under the Mohan criteria.
Insurer's eve-of-hearing motion to compel section 42 assessments and adjourn arbitration dismissed.
The insurer brought a motion for an order compelling the applicant to attend further psychological and orthopaedic assessments under section 42 of the Statutory Accident Benefits Schedule, and for an adjournment of the upcoming arbitration hearing.
The arbitrator dismissed the motion, finding it to be an exercise in tactical brinkmanship on the eve of the hearing.
The insurer failed to provide a reasonable explanation for its delay in requesting the assessments, despite having early notice of the psychological and orthopaedic components of the claim.
Furthermore, the arbitrator noted a lack of jurisdiction to directly compel attendance at a section 42 examination.
Non-earner and medical benefits denied due to pre-existing conditions; housekeeping benefits granted for aggravated pain.
The applicant was injured in a motor vehicle accident while riding his bicycle and claimed statutory accident benefits, including a non-earner benefit, medical benefits, and housekeeping benefits.
The arbitrator found that the applicant did not meet the test for a non-earner benefit, as there was insufficient evidence that the accident materially contributed to his complete inability to carry on a normal life, given his pre-existing chronic pain and opiate addiction.
The claim for medical benefits was also dismissed for lack of evidence linking the expenses to the accident.
However, the arbitrator granted the claim for housekeeping benefits, finding that the accident aggravated the applicant's pre-existing pain, resulting in a substantial inability to perform heavy housekeeping tasks.
Insurer barred from relying on notice limitation period due to unconscionable delay in raising the technical defence.
The Insurer brought a motion to preclude the Applicant from proceeding to arbitration on her claims for caregiver benefits and a therapeutic mattress, arguing she failed to provide notice within the time limits prescribed by section 32(1) of the Statutory Accident Benefits Schedule.
The Arbitrator dismissed the motion, finding that the Insurer had initially paid caregiver benefits and only later denied them on substantive grounds, without raising the technical notice defence until the dispute resolution process years later.
The Arbitrator held that the Insurer's unconscionable delay in raising the technical objection, along with its own failure to provide an election form on a timely basis, barred it from relying on the limitation period.
Applicant's representative ordered to personally pay $250 in adjournment costs for failing to attend hearing.
The applicant's representative requested a last-minute adjournment of an arbitration hearing because he was out of the country.
The arbitrator found that the representative's delay and failure to manage his travel plans caused the insurer to incur expenses without reasonable cause.
Pursuant to section 282(11.2) of the Insurance Act, the representative was ordered to personally pay $250 to the insurer for costs thrown away due to the adjournment.
Solicitor removed from record due to relationship breakdown; ordered to release client file forthwith.
The applicant's solicitor of record brought a motion to be removed from the record prior to a pre-hearing in a statutory accident benefits arbitration.
The applicant opposed the removal.
The arbitrator found that the solicitor-client relationship had broken down and granted the motion to remove the solicitor.
The arbitrator ordered the solicitor to release the client's file forthwith to avoid prejudice to the applicant, noting that the tribunal lacks jurisdiction to make charging orders to protect the solicitor's unpaid account, which is governed by the Solicitors Act.
The solicitor's potential responsibility for costs under the Insurance Act remained open.
Arbitrator lacks jurisdiction to compel attendance at insurer's examinations; insurer's notice lacked sufficient particulars.
The insurer brought a motion for an order compelling the applicant to attend Insurer's Examinations with a psychiatrist, oncologist, and physiatrist under section 42 of the Statutory Accident Benefits Schedule.
The arbitrator dismissed the motion, finding no jurisdiction to order an insured to attend an examination.
Furthermore, the arbitrator held that the insurer's notice failed to provide sufficient particulars about the nature of the proposed examinations, depriving the applicant of the ability to give informed consent.
Arbitrator denies applicant's request for post-mediation document list but orders disclosure of tort claim.
In a pre-hearing for a statutory accident benefits dispute, the applicant sought an order compelling the insurer to produce an affidavit of documents for its file subsequent to mediation.
The insurer sought an order compelling the applicant to disclose whether a tort claim had been initiated.
The arbitrator dismissed the applicant's request, finding no evidence to justify ordering an affidavit of documents and noting that documents created post-mediation are highly likely to be protected by litigation privilege.
The arbitrator granted the insurer's request, ordering the applicant to provide a written answer regarding the existence of a tort claim, as such information is relevant to the arbitration.
Arbitration dismissed as nullity; solicitor ordered to personally pay costs for advancing claim for non-existent estate.
The solicitor for the deceased insured commenced an arbitration for accident benefits (death and funeral benefits) in the name of the deceased's estate.
The insurer brought a motion to dismiss the arbitration on the basis that the estate had no legal standing to claim such benefits, which are payable only to dependants personally.
The arbitrator dismissed the arbitration as a nullity and a frivolous and vexatious proceeding.
Finding that the solicitor commenced the proceeding on behalf of a non-existent principal and advanced a claim with no possibility of success, the arbitrator ordered the solicitor to personally pay the insurer's legal expenses pursuant to section 282(11.2) of the Insurance Act.
Pre-accident earning capacity calculation under Bill 164 Schedule is not strictly limited to actual pre-accident earnings.
The applicant was injured in a motor vehicle accident while completing his apprenticeship as a plumber.
He applied for a Loss of Earning Capacity Benefit under the Bill 164 Schedule.
The insurer argued that his pre-accident earning capacity must be strictly based on his actual pre-accident earnings as an apprentice, relying on the deeming provision in section 29 of the Schedule.
The arbitrator held that the deeming provision creates a rebuttable presumption, allowing the applicant to introduce evidence of his potential earnings as a journeyman plumber to establish his pre-accident earning capacity.
Motion for arbitrator recusal dismissed; pre-hearing involvement did not create reasonable apprehension of bias.
The insurer brought a motion to have the arbitrator recuse himself from hearing a preliminary issue, arguing that his involvement in the pre-hearing conference created a reasonable apprehension of bias under Rule 33.5 of the Dispute Resolution Practice Code.
The arbitrator dismissed the motion, finding that the pre-hearing discussions did not involve concrete settlement offers that would compromise the outcome.
The arbitrator held that the statutory framework under the Insurance Act and the Code contemplates an ongoing case management role for the pre-hearing arbitrator, and the insurer failed to meet the high threshold for demonstrating a real likelihood or probability of bias.