Suesan Alves

The applicant, injured in a motor vehicle accident, sought income replacement benefits and requested that the insurer disclose whether it had conducted surveillance and, if so, produce it 90 days before the hearing.

The insurer refused to disclose whether surveillance existed and offered to produce any relied-upon surveillance 60 days prior.

The arbitrator ordered the insurer to promptly disclose whether surveillance had been conducted and, if it intended to rely on any surveillance, to produce it 90 days before the hearing to allow the applicant sufficient time to respond with medical evidence without incurring undue financial burden under the Dispute Resolution Practice Code.

The applicant was injured in two separate motor vehicle accidents and filed two separate arbitration applications for statutory accident benefits against the same insurer.

At a pre-hearing discussion, the arbitrator considered whether the applications should be combined under Rule 30 of the Dispute Resolution Practice Code.

Finding that the parties and counsel were identical, and that there were common questions of fact and law regarding the duration and cause of the applicant's disability, the arbitrator ordered the applications combined to ensure the most just, quickest, and least expensive resolution and to avoid inconsistent findings.

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

The insurer denied coverage and initiated a priorities dispute, arguing another insurer was responsible.

The insurer sought a preliminary determination at the Financial Services Commission of Ontario (FSCO) on whether the applicant was an 'insured' under the Schedule.

The arbitrator held that distinguishing between coverage disputes and priority disputes is artificial and contrary to the legislative scheme.

The issue of whether the applicant is an insured must be determined by a private arbitrator as part of the priorities dispute under O. Reg. 283/95, not by a FSCO arbitrator.

The applicant, who sustained a brain injury as a seven-year-old pedestrian in a motor vehicle accident, sought loss of earning capacity benefits (LECB).

The insurer brought a motion to compel a new neuropsychological assessment.

The arbitrator dismissed the insurer's motion, finding that the applicant had already undergone numerous neuropsychological assessments, her cognitive function had plateaued, and a new in-person assessment was not reasonably required.

On the preliminary issue, the arbitrator held that the insurer was precluded from disputing the applicant's entitlement to an offer for LECB because it had paid 104 weeks of education disability benefits based on a partial inability to carry on a normal life, thereby triggering entitlement under the Schedule.

The insurer brought a motion to have issues regarding the applicant's compliance with sections 34, 55, and 56 of the Statutory Accident Benefits Schedule heard as preliminary issues.

The arbitrator found that hearing these issues preliminarily would not serve judicial economy, as they would require extensive evidence that would likely be duplicated at a substantive hearing.

The motion was dismissed, and the issues were ordered to be determined at the main arbitration hearing.

The applicant's counsel brought a motion under Rule 10.3 of the Dispute Resolution Practice Code, asserting that the applicant lacked the capacity to instruct him and seeking the appointment of the Public Guardian and Trustee.

Counsel sought to exclude the insurer from the hearing to protect solicitor-client privilege and requested leave to appear on his own affidavit.

The arbitrator dismissed both requests, finding that the insurer had a direct interest in the capacity issue due to its limitation defence, and that the presence of medical evidence distinguished the case from precedents allowing counsel to rely on their own affidavit.

The arbitrator granted the insurer's request for an adjournment to obtain its own capacity assessment.

In a pre-hearing motion at the Financial Services Commission of Ontario, the insurer sought production of the applicant's 2002 income tax return.

The applicant argued the document was irrelevant because her claim for income replacement benefits was based on her earnings in the four weeks prior to the motor vehicle accident.

The arbitrator ordered the production of the tax return, finding it relevant to establishing the applicant's level of remuneration for the purpose of determining suitable employment under the post-104-week disability test.

The applicant sought to amend a pre-hearing report to remove the issues of quantum and repayment of income replacement benefits, arguing they were not part of her original application for arbitration.

The arbitrator dismissed the motion, holding that under section 282(3) of the Insurance Act, the arbitrator must determine all issues in dispute, whether raised by the insured or the insurer.

The issues of quantum and repayment were found to be genuine disputes that naturally flowed from the applicant's claim for entitlement, and their inclusion would prevent multiple proceedings.

The insurer brought a motion to compel the applicant to comply with undertakings given at a pre-hearing and to produce requested documents.

The arbitrator found that the applicant's counsel failed to comply with specific undertakings and failed to make best efforts to respond to production requests.

The arbitrator ordered compliance and production of most requested documents.

The arbitrator declined to suspend interest on overdue benefits, finding no statutory authority to do so.

Due to the unreasonable delay and default by the applicant's counsel, the arbitrator ordered the counsel to personally pay the insurer's expenses of the motion, fixed at $350.

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

The insurer terminated the benefits and the applicant applied for arbitration more than two years after the refusal.

The insurer requested a preliminary issues hearing to determine if the application was time-barred.

The applicant argued that the insurer was estopped from relying on the limitation period due to post-mediation settlement negotiations, and alternatively sought relief from forfeiture.

The arbitrator held that the application was out of time, finding no evidence that the insurer promised not to rely on the limitation period.

The arbitrator also held that relief from forfeiture is not available for a missed limitation period.

The claims for income replacement benefits were dismissed.

The applicants applied for arbitration regarding their claims for statutory accident benefits following a motor vehicle accident.

Neither applicant attended the scheduled arbitration hearing, despite the Commission providing reasonable notice to their last known addresses.

The arbitrator proceeded in their absence pursuant to the Statutory Powers Procedure Act.

As the applicants tendered no evidence, they failed to discharge their burden of proof.

The arbitration applications were dismissed, and the insurer withdrew its claim for expenses.

The applicant was injured in a motor vehicle accident while driving his former wife's uninsured vehicle.

He applied for statutory accident benefits from the insurer of the other vehicle.

The insurer argued the applicant was excluded from receiving income replacement and housekeeping benefits under s. 30(1)(a) of the Schedule because he knew or ought reasonably to have known the vehicle was uninsured.

The arbitrator found that the applicant was principally responsible for arranging insurance on the vehicle and had been notified of the policy's cancellation 14 months prior to the accident.

The arbitrator concluded the applicant ought reasonably to have known the vehicle was uninsured and dismissed his claims for those benefits.

The applicant was completely successful in her arbitration for statutory accident benefits and sought an assessment of her arbitration expenses.

The insurer disputed the hourly rates for senior counsel and a law clerk, the number of preparation hours, the use of junior counsel, and certain disbursements.

The arbitrator allowed the maximum hourly rate of $150 for senior counsel due to the complexity of the case and the applicant's success.

The arbitrator also allowed the use of junior counsel and a senior law clerk, and approved most of the claimed disbursements, including accounting reports used to calculate interest.

The applicant's expenses were assessed at a total of $56,592.95.

The insurer renewed a request to impose terms and conditions on an adjournment that had been granted to the applicant ten months prior.

The insurer sought to make the hearing peremptory to the applicant, suspend interest payable, prohibit new medical evidence, and bind over witnesses.

The arbitrator dismissed the request, finding no reasonable explanation for the ten-month delay in seeking the terms.

Furthermore, the arbitrator noted that even if the request had been timely, most of the requested terms would not have been granted, as the applicant had sought the adjournment promptly upon retaining new counsel and restricting medical evidence would unfairly prejudice his ongoing claim for income replacement benefits.

The applicant claimed various statutory accident benefits, interest, a special award, and arbitration expenses following a motor vehicle accident.

Neither the applicant nor her representative attended the scheduled arbitration hearing, despite having received proper notice.

The arbitrator proceeded in their absence pursuant to the Statutory Powers Procedure Act.

As the applicant tendered no evidence, she failed to discharge her burden of proof.

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

The insurer sought an assessment of expenses after an arbitrator previously ordered a paralegal to personally pay the insurer's expenses for commencing an unauthorized arbitration on behalf of the applicant.

The insurer claimed expenses on a substantial indemnity basis.

The arbitrator found that she lacked the authority to award expenses on a substantial indemnity basis under the Insurance Act or the Statutory Powers Procedure Act, as costs are limited to Legal Aid rates under the Dispute Resolution Practice Code.

The insurer's expenses were assessed and ordered to be paid by the paralegal in the amount of $2,910.41.

At a pre-hearing discussion, the applicant requested a hearing date within four to six months due to financial hardship.

Counsel for the insurer requested a delay of eleven months due to his unavailability.

The arbitrator ruled that the hearing must proceed within the standard four to six month timeframe, citing the applicant's financial urgency, the readiness of the case, and institutional policy reasons against prolonged delays.

The applicant, having previously been found catastrophically impaired, sought determination of the quantum of attendant care benefits, interest, and a special award.

Based on the parties' agreement, the arbitrator fixed the net attendant care benefits at $100,787.65 and awarded interest on both attendant care and housekeeping benefits.

The arbitrator further ordered the insurer to pay a special award of $150,000 under section 282(10) of the Insurance Act, finding that the insurer had unreasonably withheld and delayed benefit payments through multiple compounding breaches.

The applicant's law firm brought a motion to withdraw as her representative, citing an inability to contact her to obtain instructions following a pre-hearing settlement offer.

The arbitrator dismissed the motion, noting that the firm failed to provide a supporting affidavit detailing its attempts to contact the client over the preceding months, relying instead only on recent affidavits of attempted service.

The dismissal was without prejudice to a further motion on better material, and the arbitration hearing dates were adjourned to allow further attempts to contact the applicant.

The applicant was injured when she slipped and fell on a bus.

She applied for statutory accident benefits.

The insurer deducted amounts she received from a private disability policy from her pre 104-week income replacement benefits and denied her post 104-week benefits.

The arbitrator held that the private policy was a non-indemnity policy and its benefits were not deductible.

The arbitrator also found that the applicant suffered a complete inability to engage in suitable employment due to chronic pain and was entitled to post 104-week benefits.

A special award of $1,500 was granted due to the insurer's unreasonable delay in adjusting the claim.