Third-party production motion dismissed for procedural non-compliance; adjournment granted with costs due to applicant's injury.
The applicant brought a motion for a third-party production order for cell phone records and an adjournment of the arbitration hearing due to a recent ankle injury.
The arbitrator dismissed the request for third-party production because the applicant failed to comply with the mandatory procedural requirements under Rule 67 of the Dispute Resolution Practice Code.
However, the arbitrator granted the adjournment request on a peremptory basis, subject to conditions including the payment of $150 in fixed costs to the insurer for the last-minute motion.
Death benefit awarded where motor vehicle accident materially contributed to death by accelerating underlying cancer.
The applicant's husband, who had previously survived pancreatic cancer, was involved in a severe motor vehicle accident that left him continuously disabled.
He died six months later from sepsis.
The insurer denied the death benefit, arguing the death was caused by a recurrence of cancer.
The arbitrator found that while cancer likely played a role, the trauma and stress of the accident materially contributed to the death by weakening the deceased's immune system and significantly accelerating his decline.
The applicant was awarded the death benefit and funeral expenses, but her claim for a special award was dismissed because the insurer's initial denial was reasonable given the complex medical evidence.
Insurer ordered to arrange new catastrophic impairment assessment due to flawed initial DAC paper review.
The applicant was severely injured in a motor vehicle accident and applied for a determination of catastrophic impairment.
The insurer arranged for a Designated Assessment Centre (DAC) assessment, which concluded the applicant was not catastrophically impaired based primarily on a paper review.
The applicant sought a further assessment, arguing the DAC process was flawed.
The Arbitrator found that the DAC failed to follow mandatory guidelines, specifically by not including a psychiatrist on the assessment team for mental and behavioural disorders and by failing to conduct a full in-person clinical assessment before rendering a negative finding.
The Arbitrator ordered the insurer to arrange a new, properly conducted CAT DAC assessment.
Agent ordered to personally pay insurer's expenses for pursuing unnecessary arbitration after claim was settled.
The applicant was injured in a motor vehicle accident and applied for statutory accident benefits.
The insurer paid the treatment provider directly, but the applicant's agent proceeded with an arbitration application.
The insurer sought costs against the agent personally under section 282(11.2) of the Insurance Act for causing expenses to be incurred without reasonable cause.
The arbitrator found that the agent ignored communications regarding the settlement and delayed withdrawing the application, constituting an abuse of process.
The agent was ordered to personally pay the insurer's fixed expenses of $1,566.
Separated spouse's waiver in separation agreement bars death benefit claim; insurer ordered to pay maximum special award.
The applicants, dependent daughters of the deceased, claimed the full death benefit under the Statutory Accident Benefits Schedule.
The insurer paid a portion to the deceased's separated spouse, despite a separation agreement releasing all spousal claims.
The arbitrator found that the separated spouse had waived his right to the benefit, entitling the daughters to the remaining amount.
The arbitrator also ordered the insurer to pay a maximum 50% special award, finding that the insurer acted unreasonably and in bad faith by ignoring binding case law and failing to properly investigate the claim.
Arbitrator appoints amicus curiae for self-represented applicant and orders interim benefits as condition of adjournment.
The applicant, who was self-represented, sought the appointment of an amicus curiae and an order for interim benefits as conditions for adjourning her arbitration hearing for statutory accident benefits.
The insurer had requested the adjournment pending a judicial review on a related procedural issue.
The arbitrator granted the request to appoint a lawyer as a 'friend of the court' to assist the unrepresented applicant.
Furthermore, the arbitrator ordered the insurer to pay interim income replacement benefits of $231.81 per week as a condition of the adjournment, finding that the applicant had demonstrated a serious issue to be tried regarding her disability and that the interim benefits would address the prejudice caused by the delay.
Insurer ordered to pay $400 in expenses for failing to attend pre-hearing with an authorized representative.
The applicant was injured in a motor vehicle accident and claimed statutory accident benefits.
At a scheduled pre-hearing, the insurer's counsel attended without a representative authorized to bind the insurer, in breach of a prior order by the arbitrator and section 279(5) of the Insurance Act.
The arbitrator found that the insurer knowingly flouted the order, constituting an abuse of process.
The insurer was ordered to pay $400 in expenses to the applicant, with payment suspended until the completion of the arbitration.
Insurer's motion for productions denied for lack of evidence; Applicant's adjournment request granted due to Insurer's delay.
The Insurer brought a motion for an adjournment and an order compelling the Applicant and third parties to produce various documents.
The Applicant opposed the motion and brought a cross-motion for an adjournment to mediate the issue of catastrophic impairment.
The Arbitrator dismissed the Insurer's motion, finding that the Insurer failed to provide any evidence of the relevance or probative value of the requested documents and failed to follow the rules for third-party productions.
The Arbitrator granted the Applicant's request for an adjournment, noting that the delay was caused by the Insurer's failure to promptly arrange a catastrophic impairment assessment.
The Applicant was awarded the expenses of the motion.
Insurer seeking production of a Crown brief in an accident benefits arbitration must follow the Wagg protocol.
The applicant claimed statutory accident benefits following a motor vehicle accident.
The insurer denied benefits, alleging material misrepresentation based on discrepancies between the applicant's statement and a truck driver's statement.
The insurer sought production of the Crown brief from related criminal charges against the applicant.
The arbitrator held that the insurer must follow the screening mechanism established in D.P. v. Wagg to compel production of the Crown brief, which requires notice to the Attorney General and the relevant police service.
The arbitrator ordered the applicant to first disclose the nature of the charges and list any Crown brief materials in her possession.
Interim income replacement benefits and work-hardening program funding granted pending final arbitration hearing.
Following a denial by the insurer, the applicant sought interim income replacement benefits and funding for a work-hardening programme pending the final arbitration hearing.
The arbitrator conducted an extensive review of the jurisprudence regarding interim orders under section 279(4.1) of the Insurance Act, rejecting the strict application of injunction tests such as 'irreparable harm' and 'prima facie case.' Instead, the arbitrator applied a holistic approach focused on the consumer protection mandate of the legislation.
Finding that the applicant's uncontradicted evidence and the medical reports supported the need for a transitional work programme, the arbitrator granted the interim benefits and ordered the insurer to fund the programme.
The request for an interim special award was deferred to the final hearing.
Failure to attend insurer's examination suspends benefits, but unclear refusal notice prevents limitation period from commencing.
The applicant was injured in a motor vehicle accident and claimed statutory accident benefits, including housekeeping and home maintenance benefits.
The insurer requested an in-home assessment under section 42 of the Statutory Accident Benefits Schedule, which the applicant refused to attend, arguing it was duplicative of her own assessment.
The arbitrator held that the applicant was properly notified of the examination and her failure to attend meant no benefits were payable for the period of non-compliance.
However, the arbitrator also found that the applicant's claim was not statute-barred, as the insurer's notice of refusal was not clear and unequivocal, meaning the two-year limitation period had not commenced.
Pre-hearing ordered to proceed in person, respecting the applicant's choice of venue over insurer's preference.
A dispute arose regarding the format of the pre-hearing conference.
The insurer, having retained out-of-town counsel, requested a teleconference, while the applicant requested an in-person hearing in Toronto.
The arbitrator held that the applicant's choice of venue should not be lightly abrogated and ordered that the resumption of the pre-hearing take place in person at the Commission's offices in Toronto.
Arbitration withdrawal permitted but insurer awarded expenses due to applicant's unreasonable delay in responding to settlement.
The applicant sought to withdraw his application for arbitration regarding statutory accident benefits after the insurer paid the outstanding treatment provider accounts.
The insurer opposed an unconditional withdrawal, seeking its expenses.
The arbitrator allowed the withdrawal but ordered expenses of $1,566 payable to the insurer, finding that the applicant's representative unreasonably delayed in responding to the insurer's notification of settlement, which unnecessarily prolonged the proceeding.
Insurer barred by promissory estoppel and laches from relying on 30-day time limit for accident benefits application.
The insurer raised a preliminary issue that the applicant was barred from proceeding to arbitration because he failed to submit his application within 30 days of receiving it, without a reasonable explanation, pursuant to section 32(3) of the Statutory Accident Benefits Schedule.
The arbitrator found that the insurer failed to promptly notify the applicant that his explanation for the delay was unacceptable, leading him to believe only a signed statement was required.
Applying the doctrines of promissory estoppel and laches, the arbitrator held that the insurer was barred from relying on the 30-day time limit.
The applicant was permitted to proceed to arbitration on the substantive issues.
Insurer ordered to pay arrears, interest, and a $39,295 special award for unreasonably terminating income replacement benefits.
The applicant was injured in a motor vehicle accident and received statutory accident benefits from the insurer.
The insurer subsequently terminated his weekly income replacement benefits.
The arbitrator found that the insurer unreasonably withheld benefits by ignoring overwhelming medical evidence of the applicant's ongoing cognitive impairment and relying on flawed reports that supported termination.
The arbitrator characterized the insurer's conduct as wilful blindness.
The applicant was awarded $64,177 in arrears of income replacement benefits, $48,096 in interest, a special award of $39,295 under s. 282(10) of the Insurance Act, and $42,908 in arbitration expenses.
Insurer permitted to add repayment issue to arbitration; applicant ordered to pay expenses for unreasonable refusal.
The insurer sought to add a repayment issue to the arbitration.
The applicant's representative refused to consent, claiming the issue was unmeritorious and statute-barred, but provided no evidence or detailed submissions.
The arbitrator found that the insurer's claim was not plainly and obviously devoid of merit and that adding the issue would avoid a multiplicity of proceedings.
The arbitrator allowed the insurer to amend its response to include the repayment issue and ordered the applicant to pay $250 in expenses due to the representative's contumacious refusal to consent.
Arbitrator lacks jurisdiction to compel an insured to attend an insurer's medical examination.
The insurer brought a motion seeking an order to compel the insured to attend an in-home occupational therapy assessment for attendant care and other disability benefits.
The arbitrator dismissed the motion, finding that arbitrators at the Financial Services Commission of Ontario lack the statutory jurisdiction to order an insured to attend a medical examination.
Furthermore, the arbitrator held that even if jurisdiction existed, the insurer failed to demonstrate that the requested examination was reasonable and necessary, particularly given its proximity to the scheduled arbitration hearing.
The insured was awarded expenses for the motion.
Insurer's motion to stay arbitration dismissed; mediation agreement restricting right to arbitrate found void.
The applicant was injured in a motor vehicle accident and applied for income replacement benefits.
Following mediation, the mediator's report noted an agreement that the parties' accountants would meet to discuss quantum, and the applicant would not proceed to arbitration before a reasonable attempt was made to resolve the issue.
The meeting never took place, and the applicant applied for arbitration.
The insurer brought a motion to stay the arbitration, arguing the agreement was a condition precedent.
The arbitrator dismissed the motion, finding that the applicant made reasonable attempts to arrange the meeting, the agreement lacked consideration as the insurer was already obligated to review the claim, and the agreement was void under section 279(2) of the Insurance Act for restricting the right to arbitrate.
Applicant's representative ordered to personally pay $819.96 in costs for adjournment due to lack of preparation.
The applicant's representative requested an adjournment of the arbitration hearing due to his client's absence and his failure to summons medical witnesses.
The arbitrator granted the adjournment but reserved on the issue of expenses.
The arbitrator found that the representative's lack of timely preparation caused expenses to be incurred without reasonable cause.
Pursuant to section 282(11.2) of the Insurance Act, the arbitrator ordered the representative to personally pay the insurer's costs thrown away, assessed at $819.96.
Counsel removed from record; ordered to release file upon payment of outstanding disbursements.
The applicant's counsel brought a motion to be removed as counsel of record following a dispute with the applicant over the conduct of the arbitration.
The applicant opposed the motion and requested her file.
The arbitrator granted the motion, removing counsel from the record, and ordered counsel to release the file to the applicant upon payment of outstanding disbursements.