Stewart M. McMahon

The appellant brought a motion alleging institutional bias against the adjudicators of the Financial Services Commission of Ontario.

The motion was previously adjourned on conditions, including that the appellant pay $500 in expenses to the respondent.

The appellant failed to pay the expenses or provide submissions explaining the default.

The Director's Delegate dismissed the bias motion due to the appellant's deliberate refusal to comply with the prior order, finding that allowing the motion to continue would bring the administration of the appeal process into disrepute.

The appellant was injured in a motor vehicle accident and received income replacement benefits for 156 weeks before the insurer terminated them.

Three years later, the appellant applied for further benefits, arguing he now met the post-156-week test.

The insurer denied the claim as statute-barred and for failing to meet the continuous disability requirement.

The Director's Delegate affirmed the arbitrator's decision, holding that the claim was barred by the two-year limitation period under the Insurance Act and the SABS, as the post-156-week benefits do not constitute a separate claim.

Furthermore, the appellant failed to establish that he was continuously disabled from the 156-week mark.

The appellant appealed an arbitrator's decision denying him further weekly benefits under the SABS-1994.

The appellant received "other disability benefits" for a partial inability to carry on a normal life, but benefits were interrupted for 28 weeks when his condition temporarily improved.

The insurer terminated benefits on the second anniversary of the accident because the appellant did not meet the "complete inability" test.

The Director's Delegate upheld the arbitrator's ruling that the 104-week transition period refers to calendar weeks, not weeks of benefits paid.

The Delegate also held that the appellant could not qualify for ongoing benefits by meeting the complete inability test at a later date, as the disability must continuously prevent the person from engaging in their ordinary activities from the 104-week mark.

The appellant's agent requested an adjournment of the appeal proceedings to await the outcome of an application for intervener status in a separate case involving allegations of institutional bias at FSCO.

The Director's Delegate granted the adjournment on strict conditions, including that the appellant properly file the intervention application, notify the Attorneys General of a constitutional challenge, and pay $500 in expenses thrown away to the respondent insurer due to the late notice of the adjournment request.

The appellant appealed a preliminary arbitration order concerning the scope of the issue to be arbitrated.

The insurer had paid the base fee for an assessment but refused to pay a premium fee adjustment for travel time.

At arbitration, the insurer argued the appellant must prove the reasonableness of the entire account, which the arbitrator accepted.

On appeal, the Director's Delegate held that the insurer's prior payment and conduct put the reasonableness of the assessment itself beyond dispute.

The arbitrator exceeded her jurisdiction by expanding the issue.

The appeal was allowed and the matter remitted to determine only the entitlement to the premium fee adjustment.

The appellant appealed an arbitrator's decision denying payment for an in-home assessment following a motor vehicle accident.

The appellant argued that the insurer should be restricted to the reasons for denial set out in its initial notice, and alternatively, that there was sufficient evidence the assessment was for the purpose of the Statutory Accident Benefits Schedule.

The Director's Delegate dismissed the appeal, holding that an insurer is not strictly limited to its initial reasons for denial, provided there is fair disclosure and no undue prejudice.

Furthermore, the Director's Delegate upheld the arbitrator's finding that the appellant failed to provide sufficient evidence demonstrating that the assessment report was intended to be used for a treatment plan or other rehabilitation purpose under the Regulation.

The appellant appealed an arbitration order dismissing his claim for income replacement benefits (IRBs) following a motor vehicle accident.

The arbitrator had found the appellant disentitled to benefits under section 33 of the SABS-96 for failing to provide sufficient financial and medical information, and alternatively, that he failed to prove disability and pre-accident income.

On appeal, the Director's Delegate found the arbitrator erred in applying section 33 to the financial documents, as the appellant had cooperated but the documents were simply insufficient to prove his claim.

However, the arbitrator correctly applied section 33 to the medical records, as the appellant intentionally withheld them.

The penalty was varied from a complete disentitlement to a suspension effective February 1, 2000.

The appeal was otherwise dismissed, as the arbitrator's findings that the appellant failed to prove disability and quantum were upheld.

The appellant insurer sought to appeal comments made by an arbitrator in the body of a decision regarding ongoing carrying costs for home renovations, which were not included in the formal order.

The Director's Delegate rejected the appeal, holding that under section 283(1) of the Insurance Act, an appeal lies only from the formal order of the arbitrator, not from the reasons or obiter dicta.

The appellant appealed an arbitrator's decision regarding his residual earning capacity following a motorcycle accident.

The appellant argued that the arbitrator erred in her interpretation of the phrase 'exists in the area in which the person lives' by considering employment outside his immediate municipality, and that she erred in preferring the REC DAC's conclusions over his own experts.

The Director's Delegate dismissed the appeal, finding no error in the arbitrator's flexible interpretation of the search area, which was supported by the appellant's own expert evidence.

The Delegate also found no basis to interfere with the arbitrator's weighing of the evidence and rejected the appellant's late allegations of impropriety against the REC DAC.

The insurer requested that the insured's agent be excluded from representing her on appeal, arguing that he was incompetent and failed to comply with his duties, relying on the arbitrator's negative comments about his conduct at the initial hearing.

The Director's Delegate reviewed the principles for excluding an agent, noting that it is a severe measure meant to protect the proper administration of justice and the represented party's interests.

While expressing concern over the agent's past conduct, the Delegate concluded that excluding him at this preliminary stage was not warranted, but required the agent to file a signed acknowledgment from the insured confirming her informed choice to use an unlicensed agent.

The insurer appealed an arbitration order requiring it to pay transportation expenses for a minor insured who was driven to medical appointments by her parents in their own vehicles.

The trips were all under 50 kilometres.

The Director's Delegate allowed the appeal, finding that the 50-kilometre exemption in s. 14(6) of the SABS-96 and the Transportation Expenses Guideline applied to trips taken in a family vehicle.

The insurer was not liable for the transportation expenses.

The appellant appealed an arbitration order that denied her further weekly income benefits and required her to pay half of the insurer's arbitration expenses.

The appellant argued she was denied a fair hearing due to the arbitrator's procedural rulings (dismissing an interpreter and refusing to consider a second accident), her counsel's incompetence, and the arbitrator's alleged bias stemming from frustration with her counsel.

The Director's Delegate dismissed the appeal, finding that the absence of an interpreter did not prejudice the appellant, the arbitrator correctly refused to hear the unmediated second accident claim, the Charter right to effective counsel does not apply to private economic disputes, and the arbitrator's frustration with counsel's delays did not amount to bias.

The insured, a real estate agent, was involved in two motor vehicle accidents in close succession.

The insurer terminated his income replacement benefits, and the insured appealed.

The Director's Delegate held that the insured's essential tasks should be defined by his usual job duties prior to the first accident, not the modified duties he was performing at the time of the second accident.

The Delegate also found that while the insured was an employee rather than self-employed, his employment expenses were still deductible in calculating his gross income for benefit purposes.

The insurer's request for repayment of overpaid benefits was dismissed because it failed to show the insured withheld necessary information.

The appellant was injured in a motor vehicle accident and referred by his family doctor for a functional capacity evaluation and surface electromyograph.

The insurer refused to pay the full assessment fee, and an arbitrator reduced the fee by 50% based on the perceived limited value of the resulting report.

On appeal, the Director's Delegate held that the reasonableness of an assessment expense under section 24 of the SABS should focus primarily on the process—the time, care, and expertise involved—rather than the ultimate usefulness or correctness of the opinion.

Finding the assessment process reasonable, the Delegate ordered the insurer to pay the full account.

The insurer appealed an arbitrator's decision awarding the insured a loss of earning capacity benefit of $459.58 per week and sought a stay of the order pending the appeal.

The Director's Delegate applied the three-part test for a stay, focusing heavily on the hardship to the parties.

Finding that withholding ongoing benefits would cause significant hardship to the impecunious insured, the Delegate refused to stay the ongoing payments.

However, given the large accumulation of arrears (approximately $82,000) and the risk of non-recovery if the appeal succeeded, the Delegate granted a partial stay, staying the arrears accumulated between October 1996 and December 1999, while ordering the payment of arrears from January 2000 onwards.

The appellant appealed an arbitration order finding that the insurer was not required to pay him further income replacement benefits because he was knowingly operating an uninsured motor vehicle at the time of the accident.

The appellant sought to introduce fresh evidence and raise a new waiver argument on appeal.

The Director's Delegate admitted part of the fresh evidence but refused the waiver argument.

On the merits, the Director's Delegate upheld the arbitrator's findings that the vehicle's coverage had been deleted at the spouse's request, that the appellant knew of the deletion, and that the insurer was not estopped from denying coverage.

The appeal was dismissed.

The applicant was injured while a passenger on a TTC streetcar.

She did not notify her husband's insurer of her intention to apply for accident benefits until 11 months after the accident, well past the 30-day requirement under section 59 of the Statutory Accident Benefits Schedule.

The insurer denied the claim due to late notice.

The applicant argued she had a reasonable excuse because her husband, fearing increased premiums, refused to provide his insurance details despite her repeated requests.

The arbitrator found that the applicant's excuse was reasonable given the family's patriarchal dynamic and her inability to obtain the information otherwise.

The insurer's motion to dismiss the claim was denied, allowing the applicant to proceed to arbitration on the merits.

The applicant was injured in a motor vehicle accident and received income replacement benefits for 104 weeks.

The insurer then offered a loss of earning capacity benefit of zero and ceased paying income replacement benefits.

The applicant requested a Residual Earning Capacity Assessment at a Designated Assessment Centre (REC DAC) and sought reinstatement of her income replacement benefits pending the report.

The REC DAC report failed to determine a residual earning capacity.

The arbitrator held that under section 23 of the Statutory Accident Benefits Schedule, the insurer is not authorized to substitute a loss of earning capacity benefit until the release of a valid REC DAC report.

The insurer was ordered to pay ongoing income replacement benefits from the date of termination, subject to review by the hearing arbitrator.

The insurer sought to compel the applicant to attend a psychiatric examination to determine his ongoing entitlement to income replacement benefits following a motor vehicle accident.

The applicant refused, arguing the insurer had already fully explored the psychological component of his claim through previous assessments and that the request was untimely.

The arbitrator found that because the applicant had recently obtained his own psychiatric report, which his counsel failed to disclose until the submissions on this motion, it was reasonably necessary for the insurer to obtain its own psychiatric opinion.

The insurer's request for the examination was granted.

The applicant was seriously injured in a motor vehicle accident and received statutory accident benefits for 156 weeks before the insurer terminated them.

She sought reinstatement of weekly income benefits and housekeeping expenses, as well as reimbursement for prescriptions.

The arbitrator found that the applicant suffered from chronic pain syndrome and depression, and that her honest belief in her disability rendered her incapable of returning to work, entitling her to ongoing weekly benefits.

However, the arbitrator found she was capable of performing more household tasks than she admitted and reduced her housekeeping benefits to five hours per week.

Prescription expenses were awarded in full.