Judith Killoran

The applicant failed to appear at the arbitration hearing regarding her claim for statutory accident benefits.

The arbitrator proceeded with the hearing in her absence but added a preliminary issue of whether the applicant is entitled to have the hearing reopened.

Noting concerns about the applicant's representation, address, language barriers, and potential cost consequences, the arbitrator ordered that the applicant may file submissions by January 13, 2003, to reopen the hearing, failing which a decision would be issued based on the evidence presented by the insurer.

Following a settlement of all outstanding issues except expenses in a motor vehicle accident benefits arbitration, the applicant sought her costs of the proceeding.

The arbitrator assessed the legal fees and disbursements claimed by the applicant's two successive counsel.

Applying the criteria under the Insurance Act and the Dispute Resolution Practice Code, the arbitrator reduced the claimed hours and hourly rates, ultimately awarding $18,533.20 in legal fees and $9,968.09 in disbursements, plus applicable GST.

The applicant's son was killed in a motor vehicle accident when he was struck as a pedestrian by a vehicle insured by the respondent.

The applicant, who lived in Ethiopia, claimed entitlement to death benefits under section 25 of the Statutory Accident Benefits Schedule, arguing she was principally dependent on her son for financial support.

The insurer disputed the dependency claim, questioning the sufficiency of the evidence provided, which included a decision from an Ethiopian communal court and a statutory declaration.

The arbitrator found that the applicant had made best efforts to provide the requested information and that the evidence, including the Ethiopian court decision, established she was financially dependent on her son.

The arbitrator ordered the insurer to pay $35,000 in death benefits plus interest.

The insurer brought a motion to compel the applicant, an 11-year-old boy whose mother was killed in a motor vehicle accident, to attend an insurer's medical examination with a psychologist and to compel production of his treating psychologist's clinical notes and records.

The applicant brought a cross-motion for payment of a psychological report.

The parties resolved the examination and production issues on consent.

The arbitrator dismissed the applicant's motion for payment of the report as premature, noting that the invoice had not yet been submitted to the insurer.

The applicant was injured in a snowmobile accident and sought statutory accident benefits from his insurer.

He claimed housing expenses for winter accommodation on the mainland, a new boat and snowmobile as rehabilitation benefits, and income replacement benefits exceeding the $400 weekly maximum based on business losses.

The arbitrator dismissed the claim for housing expenses, finding it was covered by a prior settlement regarding relocation.

The arbitrator granted the claim for a new boat and snowmobile, accepting medical evidence that they were necessary to reduce impact on the applicant's back and allow him to maintain his business.

The arbitrator dismissed the claim for enhanced income replacement benefits, ruling that the statutory scheme caps benefits at $400 and compensates for actual income loss, not lost economic opportunity or potential profits.

In a pre-hearing discussion regarding a claim for statutory accident benefits, the arbitrator ordered the applicant to execute authorizations for the disclosure of various employment, educational, and medical records.

The arbitrator also found that the insurer's request for a further medical examination by an orthopaedic surgeon was reasonably necessary, given new information about the physical demands of the applicant's employment.

Consequently, the scheduled arbitration hearing was adjourned to allow time for the productions and examination.

Following an arbitration where the insured was unsuccessful in claiming a medical benefit, the insurer sought its expenses.

The arbitrator considered the criteria under the Dispute Resolution Practice Code, including the insurer's offer to settle and the insured's lack of success and credibility issues.

Balancing these factors with the need to maintain accessibility to the dispute resolution system for individuals of modest means, the arbitrator awarded the insurer one-third of its assessed expenses, totaling $3,179.55 plus GST.

The insured applied for statutory accident benefits following a motor vehicle accident.

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

At a pre-hearing discussion, the insurer sought production of the insured's entire long-term disability file from a collateral benefits carrier.

The arbitrator dismissed the request, finding that the documents lacked relevance because the disability tests under the Statutory Accident Benefits Schedule and the collateral carrier's policy were different.

Furthermore, the arbitrator held that compelling production would prejudice the dispute resolution process by potentially allowing a doubling up of medical reports and circumventing the lack of pre-hearing discovery in the arbitration process.

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

The insurer paid a reduced amount for treatment plans and the applicant sought to arbitrate the remaining balance.

The insurer raised a preliminary issue, arguing the arbitration application was filed beyond the two-year limitation period under s. 281(5) of the Insurance Act.

The arbitrator found that the insurer's Explanations of Benefits did not constitute a clear and unequivocal refusal to pay, nor did they provide reasons for the reduction in benefits.

Therefore, the limitation period was not triggered, and the applicant was not precluded from proceeding to arbitration.

The applicant was injured in a motor vehicle accident while driving a borrowed, uninsured vehicle.

She applied for statutory accident benefits from the insurer, claiming the vehicle's owner had obtained an oral agreement for coverage from the insurer prior to the accident.

The insurer denied coverage, arguing there was no contract of insurance.

The arbitrator found that there was a binding oral agreement between the vehicle owner and the insurer, establishing a sufficient nexus for the applicant to claim benefits.

The arbitrator ruled the applicant was entitled to coverage under section 268 of the Insurance Act, but declined to order interim benefits as the applicant had not established entitlement or urgency.

In a pre-hearing dispute over statutory accident benefits, the applicant sought production of investigator's reports regarding an alleged offer of employment.

The insurer claimed litigation privilege over the reports but reserved the right to call the investigator as a witness.

The arbitrator applied the dominant purpose test and the Dispute Resolution Practice Code, finding that the reports were likely requisitioned to adjust the file rather than for litigation.

Given the insurer's reservation of the right to call the investigator, the arbitrator ordered the production of the reports to ensure full and fair disclosure.

The applicant was injured in a 1997 motor vehicle accident and sought statutory accident benefits, including non-earner, medical, attendant care, and housekeeping benefits.

The insurer denied the claims, arguing that the applicant's impairments were entirely attributable to a long history of pre-existing conditions, including a severe 1979 workplace head injury and subsequent accidents.

The arbitrator found that the 1997 accident did not significantly or materially contribute to the applicant's disability, as he was already totally disabled prior to the accident.

The claims for benefits, interest, and a special award were dismissed.

The applicant was severely injured in a 1995 motor vehicle accident and required 24-hour skilled supervisory attendant care.

In a preliminary issues hearing, the arbitrator determined that the applicant could not access funding for skilled supervisory care under Level I or Level III of Form 1, as the categories in Form 1 are exhaustive and do not include psychological supervisory care under Level III.

The arbitrator also held that the hourly rates set out in section 50(10) of the Statutory Accident Benefits Schedule are fixed rates, not minimums, though "stacking" of care by multiple attendants is permissible to reach the maximum monthly limits.

Finally, the arbitrator found that the applicant, who had withdrawn from high school within a year prior to the accident, could qualify for education disability benefits and have her pre-accident earning capacity calculated under section 29(5).

The applicants applied for statutory accident benefits following a motor vehicle accident.

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

A preliminary issue arose regarding whether the applicants were required to attend the pre-hearing discussions in person.

The insurer argued their attendance was essential because it intended to apply to disallow their representative from continuing to act for them.

The arbitrator ordered the applicants to attend in person, noting that the absence of parties can hinder settlement discussions and that the arbitrator has discretion to determine the format of the pre-hearing discussion.

Conditional expenses of $200 were ordered against each applicant if they failed to attend.

Following a decision denying the applicant's claims for statutory accident benefits, the insurer requested an assessment of its expenses.

The applicant had prolonged the proceeding by failing to comply with undertakings and failing to appear at the arbitration hearing.

The applicant also failed to appear at the in-person expense assessment.

The arbitrator awarded the insurer $986.30 in legal fees, applying the legal aid rate rather than the maximum allowable rate, and $1,168.75 in disbursements, for a total of $2,155.05 plus GST.

The applicant was injured in a motor vehicle accident and sought payment for exercise therapy under the Statutory Accident Benefits Schedule.

The insurer denied the claim, arguing the treatment was not reasonable and necessary.

The arbitrator found that the applicant had pre-existing shoulder issues and lacked credibility regarding his medical history.

Relying on expert medical assessments, the arbitrator concluded the applicant had regained almost full mobility prior to the disputed therapy and did not have an impairment requiring the treatment.

The claims for medical benefits and a special award were dismissed.

The applicant, a Colorado resident, was injured in a motor vehicle accident in New York State while a passenger in a vehicle insured by the respondent under an Ontario policy.

The applicant applied for statutory accident benefits in Ontario.

The insurer argued the applicant did not qualify as an 'insured person' under the Schedule because he was not living and ordinarily present in Ontario.

The arbitrator found that the applicant met the expanded definition of 'insured person' under section 2.2.3(g) of the OPF 1 standard policy, as he had no recourse against any other insurer.

The arbitrator held that the insurer is bound by the terms of its own policy and ordered the insurer to pay statutory accident benefits.

The applicant sought to re-open the arbitration hearing to admit new evidence regarding whether medical assessments could be billed to OHIP.

The arbitrator treated the request as a motion.

Applying the Palmer test for the admission of new evidence, the arbitrator found that the applicant failed to meet the due diligence requirement, as the representative conceded the evidence could have been obtained prior to the hearing with greater diligence.

The motion to re-open the hearing was dismissed.

The applicant sought an assessment of her expenses following an arbitration regarding statutory accident benefits where she was awarded a special award and interim benefits.

The insurer disputed the number of hours claimed and the hourly rate of $150.

The arbitrator found that the 42.75 hours claimed by the applicant's counsel were reasonable, noting that extensive preparation time resulted in a settlement and a significant special award, thereby decreasing hearing time.

The arbitrator also approved the maximum hourly rate of $150 given counsel's year of call and expertise.

The applicant was awarded $6,412.50 in legal fees and $466 in disbursements, plus GST.

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

The insurer refused payment, and the applicant filed an application for arbitration within the two-year limitation period.

However, the application was filed on an outdated form.

The Commission mistakenly notified the applicant's former counsel of the defect instead of his current counsel, causing a delay in filing the corrected form until after the limitation period expired.

The arbitrator held that the initial filing within the limitation period was sufficient to start the process, and the defect in form did not invalidate the proceeding.

The applicant was permitted to proceed to arbitration.