Ben Fortino

The applicant sought accident benefits following a motor vehicle accident.

At a preliminary issue hearing, the insurer sought to introduce examination under oath (EUO) transcripts of the other driver and his passengers, who failed to attend the hearing despite being summoned.

The applicant brought a motion to exclude the transcripts, arguing that admitting them without an opportunity for cross-examination violated the rule in Browne v. Dunn.

The arbitrator dismissed the motion, holding that under the Statutory Powers Procedure Act and the Dispute Resolution Practice Code, the tribunal has broad discretion to admit evidence.

The failure to cross-examine the witnesses goes to the weight of the evidence rather than its admissibility.

The applicant was injured in a motor vehicle accident in 2004 and sought funding for a catastrophic impairment assessment completed in 2015.

The insurer paid $11,500 but denied the remaining $11,599.99, relying on the $2,000 per assessment cap introduced in the 2010 Statutory Accident Benefits Schedule.

The applicant argued she had a vested right to the pre-2010 rules, which had no monetary cap, because her accident occurred in 2004.

The arbitrator rejected this argument, finding that section 268 of the Insurance Act allows the legislature to amend the Schedule and that the 2010 cap applied to all assessments conducted after August 31, 2010.

Furthermore, the applicant failed to prove that the disputed costs were reasonable.

The claim was dismissed.

The applicant sought expenses following an arbitration decision that granted her catastrophic impairment determination and medical benefits but denied her income replacement benefits.

The applicant claimed $66,656.94 in fees and disbursements.

The arbitrator found the applicant was entitled to expenses but reduced the amount claimed, noting she was only partially successful and had withdrawn a significant claim.

The arbitrator fixed the applicant's expenses at $16,122.84 for fees, including HST, and awarded no further disbursements.

The applicant sought income replacement benefits, medical benefits, and a determination of catastrophic impairment following a 2008 motor vehicle accident.

The arbitrator dismissed the claims, finding the applicant failed to prove a complete inability to engage in employment for the IRB claim.

The medical benefit claim was not properly linked to the 2008 accident.

The catastrophic impairment claim failed because the applicant's assessments did not properly account for pre-existing conditions as required by the AMA Guides, and the evidence did not establish a marked impairment resulting directly from the 2008 accident.

The applicant was injured in a motor vehicle accident and sought a determination of catastrophic impairment based on psychological injuries, along with income replacement benefits and medical benefits.

The arbitrator preferred the evidence of the applicant's psychological expert, finding she suffered a marked impairment in her ability to adapt, and declared her catastrophically impaired.

The claim for income replacement benefits was dismissed due to an unexplained four-year delay in re-electing benefits.

The requested medical benefits for physiotherapy and psychological treatment were approved as reasonable and necessary.

The applicant sought statutory accident benefits after slipping and falling on black ice in a parking lot.

She claimed she fell while exiting her vehicle and struck her head on the vehicle's step.

The insurer denied the claim, arguing the incident was not an "accident" under s. 3(1) of the Statutory Accident Benefits Schedule.

The arbitrator found the applicant's initial medical records did not mention her vehicle or hitting her head, and concluded she had safely exited the vehicle before slipping on the ice.

The arbitrator held that the ice was an intervening factor and the use or operation of the vehicle was not the direct cause of the impairment.

The application for arbitration was dismissed.

The respondent brought a motion for leave to appeal a case conference order made in a family law proceeding.

At the case conference, the judge ordered the matrimonial home listed for sale and froze the respondent’s RRSP except for payments required to maintain the mortgage.

The moving party argued the orders were made without instructions or consent and were beyond the court’s authority at a conference under Rule 17(8) of the Family Law Rules.

The court held that notice of the requested orders had been given and that the evidence before the conference judge justified asset preservation orders.

The court found no reason to doubt the correctness of the order and dismissed the motion for leave to appeal.

A contractor commenced an action to enforce payment of the balance owing under a contract for the supply and installation of polyurethane spray foam insulation at an industrial property.

The defendants refused payment alleging extensive overspray damage to equipment and asserting that the balance had been forgiven due to deficient workmanship.

The court found that significant overspray occurred and that the contractor’s workmanship was substandard, but rejected the alleged agreement to forgive the balance and found the defendants had continued using the equipment without remediation while preventing the contractor from attempting cleanup.

Applying a reasonable reduction to account for the deficiencies, the court awarded the contractor a reduced balance of the contract price and dismissed the defendants’ counterclaim.

The contractor was also granted a construction lien for the amount of judgment and partial indemnity costs.

Following a successful motion removing counsel for the insurer due to a conflict of interest arising from representation in both accident benefits and tort proceedings, the court addressed costs.

The insurer argued that delay by the moving party in raising the conflict should disentitle it to costs because significant work had already been completed by counsel who would need to be replaced.

The court rejected this argument, finding the conflict arose from the insurer’s failure to maintain separation between accident benefits and tort files.

Applying Rule 57.01 of the Rules of Civil Procedure and principles from appellate jurisprudence on reasonableness of costs, the court held that the time and rates claimed were reasonable.

The moving party was awarded costs on a partial indemnity basis.

Addendum to a prior decision correcting the wording of an order concerning the removal of counsel for a statutory third party insurer.

The original judgment was amended to clarify that the motion sought removal of the law firm representing the statutory third party, rather than the individual defendant driver.

The court ordered that the law firm be removed as solicitors of record for the statutory third party insurer.

The litigation guardian was permitted to make written submissions on costs, with the insurer given time to respond.

The plaintiff brought a motion seeking removal of a law firm acting for an insurer as statutory third party in a tort action arising from a motor vehicle accident.

The insurer also provided accident benefits coverage to the plaintiff and retained the same firm to act in both the accident benefits claim and the defence of the tort action.

The firm used documents and information obtained from the plaintiff in the accident benefits claim to defend the tort action against the insured driver.

The court held that this dual representation created a clear conflict of interest, particularly where no effective information barrier existed between the two matters.

The firm’s conduct contravened principles governing conflicts of interest and the protection of confidential information between insurer and insured relationships.

The firm was removed as solicitors of record for the insurer in the tort action.

The appellant appealed an order of the Superior Court of Justice, Family Court, arguing that the motion judge misapprehended the Minutes of Settlement.

The Court of Appeal dismissed the appeal, finding no such misapprehension, and awarded costs of $5,000 to the respondent.

The applicant was injured in a motor vehicle accident and received income replacement benefits (IRBs) from the insurer.

The insurer terminated the IRBs and the applicant requested a Designated Assessment Centre (DAC) assessment.

The insurer argued the applicant failed to provide an updated Disability Certificate, and thus the two-year limitation period to apply for mediation had expired.

The Arbitrator found that the applicant had already provided a valid Disability Certificate covering the termination date, and was not required to provide a new one.

Because the insurer failed to arrange the DAC, there was no valid termination of benefits, and the limitation period did not preclude the applicant from proceeding to arbitration.

The insured's vehicle was damaged when her daughter, experiencing an acute psychotic episode, drove it across three lanes of traffic and into a tree.

The insurer denied coverage, arguing the daughter's actions were intentional.

The trial judge found the loss was 'accidental' as the daughter lacked conscious control of the vehicle.

The Divisional Court dismissed the insurer's appeal, upholding the trial judge's finding and further noting that the innocent insured owner was entitled to coverage regardless, as the event was unexpected from her perspective.

The insured, holding a G1 novice driver's licence, was injured in a motor vehicle accident while driving without an accompanying fully licensed driver, in violation of his licence conditions.

The insurer denied income replacement benefits, relying on the exclusion in s. 30(1)(b) of the SABS-1996 for driving 'without a valid driver's licence'.

The Director of Arbitrations allowed the insured's appeal, holding that the exclusion must be strictly construed and read in conjunction with the definition of 'valid driver's licence' in the Highway Traffic Act regulations.

Because the insured's licence was not expired, cancelled, or suspended, he had a valid driver's licence, and the exclusion did not apply despite his breach of the G1 conditions.

Following a decision denying the applicant's claim for income replacement benefits, the insurer sought an award of its arbitration expenses, alleging the applicant caused delays and called unnecessary witnesses.

The arbitrator found no evidence of intentional obstruction or neglect by the applicant, noting the insurer raised its successful exclusion defence only a month before the hearing.

The arbitrator concluded that the applicant acted in good faith and ordered each party to bear its own costs.

The applicant was injured in a motor vehicle accident while driving with a G1 novice licence without an accompanying fully licenced driver, in violation of his licence conditions.

He applied for income replacement benefits.

The insurer denied the claim under s. 30(1)(b) of the Statutory Accident Benefits Schedule, arguing he was driving without a valid driver's licence.

The arbitrator held that breaching the novice licence restriction constituted driving without a valid licence within the meaning of the exclusion.

The arbitrator also found that the insurer did not waive its right to assert the exclusion despite initially paying benefits, as there was no intentional relinquishment of the right.

The arbitration was dismissed.