Suesan Alves

The applicant was rendered a paraplegic in a single-vehicle motorcycle accident on a private track.

The motorcycle was uninsured.

He applied to the Motor Vehicle Accident Claims Fund for statutory accident benefits.

The Fund denied the claim, arguing that subsection 226(2) of the Insurance Act precluded payment because the vehicle was not required to be registered under the Highway Traffic Act.

The Arbitrator held that subsection 226(2) applies to contracts of insurance and does not bar a non-contractual statutory claim against the Fund under section 268(2).

The Fund was ordered to pay the statutory accident benefits to which the applicant is entitled.

The Applicant was previously granted an adjournment of the arbitration hearing, with an order to pay the Insurer's costs thrown away.

A dispute arose regarding whether the costs should be assessed and paid immediately or after the conclusion of the arbitration.

The Arbitrator clarified the previous order pursuant to Rule 65.6 of the Dispute Resolution Practice Code, substituting the term 'expenses' for 'costs' and ordering that the expenses thrown away are payable by the Applicant regardless of the arbitration's outcome, but are to be assessed and paid after the conclusion of the arbitration hearing.

The applicants, a husband and wife, filed three arbitration applications for statutory accident benefits arising from two motor vehicle accidents.

At a pre-hearing, the issue was whether the three applications should be combined.

The arbitrator ordered that the wife's two applications be heard together, as they involved overlapping claims and causation issues.

However, the husband's application was ordered to be heard separately, as the issues, expert witnesses, and nature of the claims were significantly different, and combining them would not result in the most just, quickest, and least expensive means to deal with the applications.

The insurer brought a motion to adjourn the scheduled arbitration hearing on the grounds that it intended to seek a stay of the arbitration in favour of a companion tort action, for practical reasons related to mediation, and because the applicant failed to comply with her production obligations.

The arbitrator rejected the first two grounds due to the insurer's delay in pursuing them.

However, the arbitrator granted the adjournment because the applicant had failed to provide agreed-upon productions, finding it would be unfair to the insurer to proceed to a hearing under those circumstances.

The Applicant, injured in a 2004 motor vehicle accident, sought an adjournment of his statutory accident benefits arbitration hearing on the eve of the hearing to obtain a medical report from his treating pain specialist.

The Insurer opposed the adjournment, noting it was the Applicant's third request and the Insurer was ready to proceed.

The Arbitrator granted the adjournment, finding that the Applicant had not appreciated the implications of his treatment and had not informed his counsel, and that the evidence was likely critical.

The adjournment was granted peremptory to the Applicant, who was ordered to pay costs thrown away.

The applicant, who was injured in a motor vehicle accident, sought interim benefits for psychological treatment pending the arbitration hearing.

The insurer opposed the request, relying on an assessment that suggested symptom exaggeration.

The arbitrator applied the test for interim benefits, requiring a prima facie case of entitlement along with need or urgency.

Relying on the evidence of the applicant's treating psychologists, which documented severe depression, suicidal and homicidal ideation, and a risk of harm to himself and others, the arbitrator found that the applicant met the test.

The insurer was ordered to pay $5,953.46 for sixteen sessions of psychological treatment.

The applicant was injured in a motor vehicle accident and received income replacement benefits until they were terminated by the insurer.

The applicant brought a motion for interim income replacement benefits pending the final arbitration hearing.

The arbitrator found that the applicant established a prima facie case for post-104 week income replacement benefits based on medical evidence of chronic pain and fibromyalgia.

The applicant also demonstrated financial need.

The motion was granted, and the insurer was ordered to pay interim benefits of $400 per week.

The applicant's counsel, David Share Associates, brought a motion to be removed as the applicant's representative due to a breakdown in the solicitor-client relationship.

The applicant sought an adjournment to retain new counsel.

The arbitrator denied the adjournment, noting that the applicant had over a year to retain new counsel and had been found mentally capable of proceeding.

The arbitrator granted the motion to remove the firm as the applicant's representative.

The insurer brought a motion to stay the arbitration of the applicant's claims for statutory accident benefits, alleging delay, failure to produce medical records, and failure to attend insurer examinations.

The insurer also sought its expenses.

The applicant's paralegal representative brought a motion to be removed from the record.

The arbitrator dismissed the motion for a stay, finding that the delay was largely institutional or on consent, and that the insurer failed to prove it complied with the notice requirements for the insurer examinations.

The arbitrator ordered the applicant to sign fresh authorizations for medical records.

The insurer's request for expenses was dismissed.

The representative's motion to be removed was adjourned so she could serve her client.

The insurer brought a motion to stay the arbitration because the applicant had not participated in the process and could not be reached by his counsel.

The arbitrator previously issued an order requiring the applicant to object to the stay by a certain date, which was sent by registered mail but ultimately returned undelivered.

Given the applicant's failure to participate and lack of actual notice despite efforts, the arbitrator granted the insurer's motion, stayed the arbitration, and vacated the scheduled hearing dates.

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

The insurer brought a motion to stay the arbitration because the applicant had not participated in the process and had lost contact with his counsel for over a year, preventing the production of relevant documents.

The arbitrator found that the insurer should not be put to the expense of responding to the application under these circumstances.

Relying on section 25.1 of the Statutory Powers Procedure Act, the arbitrator ordered that the arbitration would be stayed unless the applicant or his counsel provided written notice of objection and an undertaking to proceed diligently by a specified date.

The applicant was injured in multiple motor vehicle accidents, most notably in September 1996.

She claimed the cost of psychological treatment, which the insurer denied, arguing the need for treatment arose from subsequent accidents or life events.

The arbitrator found that the applicant's need for psychological treatment largely stemmed from the September 1996 accident and that the treatment was reasonable and necessary.

The arbitrator also found that the insurer unreasonably withheld and delayed payment of the benefits, failing to comply with its obligation to pay pending resolution of the dispute and failing to arrange a timely assessment.

The applicant was awarded the cost of the treatment, interest, and a special award of $5,000.

The applicant's representative brought a motion to be removed as the applicant's representative due to a breakdown in their relationship.

The insurer sought an award of expenses against the representative or her firm.

The arbitrator dismissed the motion to withdraw, finding that the applicant had not consented and that the representative had an outstanding undertaking to file submissions on a separate motion.

The insurer's motion for expenses was adjourned to allow the representative to file responding materials.

The applicant, a self-employed taxi driver, was injured in a rear-end motor vehicle accident and claimed statutory accident benefits.

The insurer paid income replacement benefits for the first 104 weeks but denied post-104 week benefits, arguing the applicant was not completely unable to engage in suitable employment.

The arbitrator found that the applicant's physical impairments, including neurologically-based low back pain, combined with cognitive and emotional difficulties, rendered him completely unable to work full-time in any suitable occupation.

The arbitrator ordered the insurer to pay post-104 week income replacement benefits, to be recalculated without improperly deducting capital cost allowance.

Furthermore, the arbitrator awarded a special award under section 282(10) of the Insurance Act, finding that the insurer unreasonably withheld benefits by failing to critically analyze the medical and accounting evidence and misapplying the legal test for complete inability.

The applicant, a minor injured in a motor vehicle accident, sought a determination of catastrophic impairment.

The insurer's section 42 multidisciplinary assessors opined that the applicant sustained a catastrophic impairment.

However, the insurer sought a paper review from Brigham & Associates and subsequently denied the catastrophic impairment designation.

The applicant brought a preliminary issue hearing to determine the admissibility of the Brigham & Associates reports at the upcoming arbitration.

The pre-hearing arbitrator declined to rule on the admissibility, finding that it was an evidentiary issue properly within the province of the hearing arbitrator who would determine the substantive issue of catastrophic impairment.

The issue was deferred to the hearing arbitrator.

Following the withdrawal of an arbitration application, the insurer requested an assessment of expenses.

The arbitrator had previously ordered the applicant's representative to personally pay the insurer's expenses because he caused the insurer to incur expenses without reasonable cause.

The arbitrator assessed the insurer's expenses at $3,063.68, finding the claimed hours and hourly rate to be reasonable.

The applicant was injured in a motor vehicle accident and received income replacement benefits until they were terminated by the insurer in September 2003.

The applicant returned to work shortly after but went off work again in March 2006, claiming disability due to the accident.

He sought to resume his income replacement benefits, which the insurer refused, arguing the claim was time-barred.

The arbitrator held that the two-year limitation period under section 281(5) of the Insurance Act was triggered by the clear and unequivocal refusal in September 2003.

Relying on the Court of Appeal's decision in Haldenby, the arbitrator found that the return to work provisions in the Schedule do not create a second limitation period.

The applicant's claim for further benefits was therefore precluded.

The applicant, a minor injured in a motor vehicle accident, brought a motion for the production of the insurer's complete accident benefits file and surveillance evidence.

The insurer failed to respond to the applicant's requests or provide submissions on privilege.

The arbitrator ordered the insurer to produce an Affidavit of Documents and the file up to the date of mediation, finding that litigation privilege attached on that date.

The insurer was also ordered to produce all surveillance evidence and pay $450 in expenses for the motion.

The Applicant sought to withdraw her arbitration application for statutory accident benefits.

The Insurer consented to the withdrawal but sought its expenses, arguing they were unreasonably incurred due to the conduct of the Applicant's representative.

The Arbitrator permitted the withdrawal and awarded expenses to the Insurer.

The Arbitrator found that the Applicant's representative, a paralegal, demonstrated a lack of knowledge of the law and arbitration process, commenced claims that were time-barred or unmediated, and prolonged the proceeding unnecessarily.

Finding his conduct amounted to inexcusable misconduct, the Arbitrator ordered the representative to personally pay the Insurer's expenses pursuant to section 282(11.2) of the Insurance Act.

The insurer requested a preliminary issues hearing to determine if the applicant was precluded from arbitrating her claims for treatment expenses and a higher income replacement benefit (IRB) due to the expiry of the two-year limitation period under s. 281.1(1) of the Insurance Act.

The applicant withdrew her claim for treatment expenses.

For the IRB claim, the arbitrator found that the insurer's provision of an accounting report and payment of a lump sum did not constitute a clear and unequivocal refusal of a higher benefit level.

Therefore, the limitation period was not triggered, and the applicant was permitted to proceed to arbitration on the quantum of her IRB.