Richard Feldman

The appellant insurer was successful on an appeal regarding a special award and sought its legal expenses of the appeal.

The appellant claimed approximately $8,260 in expenses.

The respondent opposed the award, arguing the amounts were excessive and that the issue should be left to the hearing arbitrator.

The Director's Delegate rejected the respondent's argument, finding that the appeal expenses must be decided by the appeal decision-maker.

Considering the relative simplicity of the matter and the appellant's success, the Director's Delegate fixed the appellant's expenses at $3,000.

The appellant, a five-year-old child, was injured when she fell down the interior stairs of a parked fire truck while attending a birthday party.

The respondent insurer denied her claim for statutory accident benefits on the basis that the incident was not an 'accident' under the Schedule.

The arbitrator agreed, finding that the fire truck was being used as a display rather than a motor vehicle.

On appeal, the Director's Delegate reversed the decision, holding that the arbitrator erred in law by reading the purpose test too narrowly.

Exiting a parked vehicle, even one used for education and entertainment, is a normal and well-known use of a motor vehicle.

The incident was declared an accident.

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

After an arbitrator dismissed her claims for various treatment and assessment costs, she appealed.

The Director's Delegate allowed the appeal in part, finding the arbitrator erred in law by failing to award the costs of preparing treatment plans that the insurer had actually approved.

The Delegate also found the arbitrator erred in law by focusing on the reasonableness of a follow-up in-home assessment when the insurer had failed to respond to the application, and by making unsupported factual inferences that the assessment never took place.

The issue of whether the assessment expenses were actually incurred was remitted to a new arbitrator.

The insurer appealed an arbitrator's decision allowing the insured to rescind a 2001 settlement of statutory accident benefits and proceed with arbitration in 2013.

The Director's Delegate upheld the arbitrator's finding that the settlement was voidable because the insurer failed to comply with the disclosure requirements of the Settlement Regulation, specifically regarding the commuted value of benefits and maximum potential benefits.

Furthermore, the insured's claim was not statute-barred because the insurer's original refusal of benefits did not adequately inform her of the dispute resolution process, rendering the refusal invalid to trigger the limitation period under the Insurance Act.

The Limitations Act was also found inapplicable to the statutory right of rescission.

The Appellant appealed an arbitration decision denying his claim for Botox injections and limiting his attendant care benefits following a 2003 motor vehicle accident.

The Director's Delegate dismissed the appeal regarding the Botox injections, finding no error of law in the Arbitrator's weighing of the medical evidence.

However, the Delegate found two errors of law in the Arbitrator's assessment of attendant care benefits: mischaracterizing hygiene cuing as housekeeping, and incorrectly interpreting section 16 of the Schedule to deny meal preparation assistance simply because the Appellant's wife performed that task prior to the accident.

The Delegate varied the order, increasing the Appellant's monthly attendant care benefits by $500.

The respondent on appeal moved for an interim order to exclude two affidavits and an interim decision from the appeal record, arguing they constituted new evidence.

The Director's Delegate denied the motion, finding that the interim decision was a public record and not evidence, and that the affidavits were relevant to the appellant's allegations of procedural unfairness and denial of natural justice at the original hearing.

The documents were allowed to remain part of the appeal record.

The insurer appealed an arbitrator's decision granting the insured a $13,000 Special Award for unreasonably withholding or delaying accident benefits.

The Director's Delegate allowed the appeal, finding that the arbitrator erred in law by failing to provide sufficient reasons to justify the award, considering irrelevant factors such as an offer to settle and litigation strategy, and denying natural justice by considering the timing of a payment without allowing submissions.

The issue of the Special Award was remitted to a different arbitrator for a fresh determination.

The appellant appealed an arbitrator's denial of certain statutory accident benefits, and the insurer cross-appealed, arguing the arbitrator erred in applying the 'material contribution' test for causation rather than the 'but for' test.

The Ontario Trial Lawyers Association (OTLA) sought to intervene on the issue of causation.

The Director's Delegate granted OTLA's request to intervene, finding that the causation test in accident benefits cases is an important legal issue with broad implications, and that OTLA could provide helpful submissions from a broader perspective.

The Delegate also proposed inviting Canadian Defence Lawyers to intervene to ensure balance.

The insurer brought a motion for a stay of an arbitrator's order pending the determination of its appeal.

The arbitrator had ordered the insurer to pay for certain goods, services, and a catastrophic impairment assessment, finding that the insured's impairments were caused by a 2007 motor vehicle accident.

The insurer argued that the arbitrator applied the wrong legal test for causation ("material contribution" instead of "but for").

The Director's Delegate denied the request for a stay, finding that while the appeal raised a bona fide legal issue, the insurer failed to demonstrate that it would suffer imminent hardship if the stay were refused, and the potential hardship raised was purely speculative.

The applicant was involved in a minor rear-end motor vehicle accident and subsequently claimed statutory accident benefits, including income replacement, housekeeping, and medical/rehabilitation benefits.

The insurer denied the claims, arguing the applicant's chronic pain and psychological impairments were not caused by the accident.

The arbitrator applied the material contribution test and found the accident exacerbated the applicant's pre-existing conditions, causing permanent impairment to her right shoulder and psychological disorders.

The applicant was awarded income replacement benefits, certain medical and assessment costs, and interest, but her claim for housekeeping benefits was dismissed due to insufficient credible evidence.

Following an arbitration hearing where the insurer was almost entirely successful in defending the applicant's claims for statutory accident benefits, the insurer sought its expenses of the proceeding.

The arbitrator found that the insurer was entitled to its reasonable expenses based on its degree of success.

After reviewing the hours claimed and applying the appropriate Legal Aid rates, the arbitrator fixed the insurer's expenses at $15,000, inclusive of fees, disbursements, and taxes, and ordered the applicant to pay this amount.

The applicant sought statutory accident benefits following a motor vehicle accident.

After failing to participate in the arbitration process, failing to comply with orders, and failing to attend the peremptory hearing, the application was dismissed.

The insurer was awarded $10,000 in expenses due to the applicant's pattern of non-compliance and failure to submit to insurer examinations.

The applicant applied for arbitration at the Financial Services Commission of Ontario after disputes arose concerning his entitlement to statutory accident benefits following a motor vehicle accident.

The applicant failed to attend the pre-hearing conference and the arbitration hearing, and ceased communication with his representative, the insurer, and the Commission.

The arbitrator concluded that the applicant had abandoned his claims.

The application was dismissed, and the applicant was ordered to pay $500 for the insurer's expenses.

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

After disputes arose, the applicant applied for arbitration at the Financial Services Commission of Ontario.

The applicant failed to attend the pre-hearing conference and the arbitration hearing, and adduced no evidence in support of the application.

The arbitrator dismissed the application, finding that the applicant had abandoned the claims, and ordered the applicant to pay $500 for the insurer's expenses of the proceeding.

The Insurer sought its expenses following an arbitration proceeding where all of the Applicant's claims for statutory accident benefits were dismissed.

The Applicant did not participate in the expense hearing.

The Arbitrator found that the Insurer was completely successful and therefore entitled to its reasonable expenses.

After adjusting the hourly rate claimed by the Insurer's counsel to the appropriate Legal Aid rate, the Arbitrator fixed the Insurer's expenses at $12,500.00, inclusive of fees, disbursements, and taxes, and ordered the Applicant to pay this amount.

The applicant applied for statutory accident benefits following a motor vehicle accident and subsequently applied for arbitration when disputes arose.

After the applicant's counsel withdrew, the applicant failed to attend the scheduled pre-hearing conference and multiple hearing dates, despite receiving notice.

Due to the applicant's failure to participate or adduce evidence, the arbitrator dismissed the application and ordered the applicant to pay $750 in arbitration expenses to the insurer.

Following an arbitration where the applicant's claims for statutory accident benefits were dismissed, the insurer sought its expenses of approximately $35,000.

The arbitrator declined to order the applicant's counsel to personally pay the expenses, finding no evidence of frivolous claims or unreasonable delay attributable to counsel.

The arbitrator found the insurer was entitled to its expenses from the applicant as the successful party.

However, the arbitrator reduced the claimed fees and disbursements, noting the case was not particularly complex and disallowing costs for transcripts and excessive expert preparation time.

The applicant was ordered to pay $15,000 in expenses to the insurer.

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

At the hearing, the applicant's legal representative successfully moved to withdraw due to a breakdown in the solicitor-client relationship.

The applicant failed to attend the hearing.

As no evidence was presented to support the claims, the application was dismissed as abandoned.

The insurer was awarded $2,500 in expenses due to the unnecessary costs incurred by the applicant's repeated failure to participate.

The applicant, a pedestrian struck by a motor vehicle, sustained a traumatic brain injury and multiple skull fractures.

She applied for catastrophic impairment designation under the Statutory Accident Benefits Schedule based on a Glasgow Outcome Scale (GOS) score of 3 (severe disability).

The insurer denied the designation, relying on a neurologist who found no physical neurological deficits.

The arbitrator rejected the insurer's narrow interpretation of the GOS, preferring the applicant's physiatrist who considered cognitive and behavioural impairments that rendered the applicant dependent on daily support.

The arbitrator found the applicant catastrophically impaired, awarded past and ongoing attendant care benefits for services provided by her husband, approved most of the disputed medical and rehabilitation treatment plans, and held the insurer liable for a special award for unreasonably withholding benefits.

The applicant's legal representatives, Yeung & Associates, brought a motion to withdraw from the proceeding after being unable to communicate with or obtain instructions from the applicant for several years.

The applicant failed to attend pre-hearing discussions and did not respond to the motion materials.

The insurer took no position on the motion.

The arbitrator granted the motion, permitting the representatives to withdraw due to a breakdown in the relationship.