Cary N. Schneider

The applicant insurer sought judicial review of a Director's Delegate decision which held that the respondent insured was entitled to interest at 2% per month on overdue statutory accident benefits.

The insured's accident occurred after the New Regulation (O. Reg. 34/10) came into effect, but her policy was issued before that date.

The Divisional Court found the Delegate's decision unreasonable, holding that the clear wording of the New Regulation applied to all accidents occurring on or after September 1, 2010, rebutting any presumption against interference with vested rights.

The application for judicial review was granted and the Delegate's decision was quashed.

The appellant was injured in a motor vehicle accident and initially received income replacement benefits (IRBs).

After returning to work and ceasing to qualify for IRBs, he claimed non-earner benefits (NEBs).

The arbitrator held that the appellant was precluded from claiming NEBs because he had effectively elected to receive IRBs and had failed to give timely notice of his NEB claim.

On appeal, the Director's Delegate reversed the decision, finding that the appellant was never required to make an election under section 35 of the Statutory Accident Benefits Schedule because he never qualified for both benefits simultaneously.

Furthermore, the initial application for benefits constituted notice for all possible weekly benefits, meaning the appellant was not barred from renewing his NEB claim.

The applicant was injured in a motor vehicle accident when she was 13 years old.

She applied for non-earner benefits upon turning 16, but the insurer failed to commence payments or schedule insurer examinations until 20 months later.

When the insurer finally scheduled the examinations, the applicant refused to attend, citing the unilateral scheduling and misleading notices.

The arbitrator found that the insurer's notices were inaccurate and failed to comply with the Schedule, and that the applicant provided a reasonable explanation for non-attendance.

The insurer was ordered to pay the withheld non-earner benefits with interest.

However, the applicant's claim for a special award was dismissed as both parties contributed to the delay.

The applicant sought statutory accident benefits for a digital motion x-ray exam, assessments, and transportation expenses following a motor vehicle accident.

The adjudicator found that the applicant failed to provide sufficient objective medical evidence to prove the digital x-ray and assessments were reasonable and necessary, relying instead on the respondent's insurer examinations which found no accident-related abnormalities.

The claim for transportation expenses was denied because the applicant failed to submit a required treatment plan.

The application was dismissed, and the respondent's request for costs was denied as there was no evidence of unreasonable or bad faith conduct by the applicant.

The applicant claimed statutory accident benefits and subsequently withdrew his application after failing to meet production timelines set in a case conference order.

The respondent brought a motion for costs, arguing the applicant's conduct was unreasonable, frivolous, vexatious, or in bad faith.

The Licence Appeal Tribunal dismissed the motion, finding that the applicant made substantial efforts to comply with the orders and that the respondent could have consented to an adjournment request instead of opposing the withdrawal.

The Tribunal held that a withdrawal alone is rarely sufficient for a costs award.

The respondent insurer brought a motion to preclude the applicant from proceeding with her application for statutory accident benefits, arguing she failed to attend scheduled insurer's examinations.

The applicant argued the notice of examination failed to set out the medical reasons for the examination as required by section 44(5)(a) of the Schedule.

The Tribunal found that the notice did not provide medical reasons, rendering it invalid.

Consequently, the applicant was not non-compliant and was not precluded from proceeding with her application.

The respondent's request for costs was denied.

The applicant was injured in a motor vehicle accident and received income replacement benefits (IRBs) for nine months until he returned to work.

Approximately 23 months after the accident, and 1.5 years after returning to work, he applied for non-earner benefits (NEBs).

The insurer denied the claim.

At a preliminary issue hearing, the arbitrator held that the applicant's claim for NEBs was barred.

The applicant had effectively elected to receive IRBs, making that election final under section 35(3) of the Statutory Accident Benefits Schedule, despite never formally filing an election form.

Furthermore, the applicant failed to provide timely notice of his intention to apply for NEBs under section 32, prejudicing the insurer.

The applicant sought payment for various medical and assessment benefits following a motor vehicle accident.

The respondent insurer denied the benefits on the basis that the applicant's injuries were predominantly minor and subject to the $3,500 limit under the Minor Injury Guideline (MIG).

The Tribunal found that the applicant's injuries were soft tissue in nature and fell within the MIG.

The Tribunal preferred the evidence of the insurer's examiners over the applicant's assessors, noting the former reviewed comprehensive medical records.

Furthermore, the applicant failed to provide compelling evidence of a pre-existing medical condition that would warrant an exception to the MIG cap.

The application was dismissed.

The insurer brought a motion to stay the arbitration proceedings until the insured attended in-person insurer examinations regarding catastrophic impairment.

The insured had delayed providing his responding medical reports for three years and then refused to attend further insurer examinations, arguing they were intrusive and unnecessary.

The arbitrator found that the insurer's request was reasonable and necessary given the passage of time and the overarching principle of procedural fairness.

The arbitration was stayed until the insured attends the examinations.

The applicant failed to attend his scheduled arbitration hearing.

His counsel brought a motion to be removed from the record due to a breakdown in the solicitor-client relationship and an inability to contact the applicant, which was granted.

The insurer requested that the application for arbitration be dismissed with costs.

The arbitrator dismissed the application due to the applicant's failure to attend and meet his onus of proof, and awarded $2,500 in expenses to the insurer.

The appellant was injured in a motor vehicle accident on October 29, 2010, and claimed statutory accident benefits under a transitional policy.

The arbitrator held that interest on overdue benefits was payable at the reduced rate of 1% per month under the New Regulation.

On appeal, the Director's Delegate found that the arbitrator erred in law by failing to apply the specific transition provisions in the Old and New Regulations, which preserved the 2% per month interest rate for amounts determined under the Old Regulation.

The appeal was allowed, and the appellant was awarded interest at 2% per month, compounded monthly.

The applicant sought expenses following a successful arbitration for statutory accident benefits.

The arbitrator found the applicant's claimed fees of $77,340 and disbursements of $51,911.72 to be grossly excessive.

Applying a 3:1 ratio of preparation to hearing time and reducing the hearing time for unnecessary procedural indulgences, the arbitrator awarded $21,696 for fees.

Disbursements were reduced to $18,070.72 to comply with fixed maximums and reasonableness.

The insurer was awarded $800 for the costs of the expense hearing due to the applicant's fanciful bill of costs.

The net amount payable to the applicant was fixed at $38,966.72.

The defendants moved for summary judgment, arguing the plaintiff's action was statute-barred under the Limitations Act, 2002, as it was commenced after the two-year limitation period.

The core issue was the discoverability date of the plaintiff's injuries, specifically when she knew or ought to have known her injuries constituted "permanent serious impairment" under the Insurance Act.

The court found that the plaintiff's chronic pain and psychological conditions were diagnosed by May 9, 2008, at which point she ought to have known she had a cause of action.

As the action was commenced on September 27, 2010, it was beyond the two-year limitation period.

The motion for summary judgment was granted, and the action dismissed.

The plaintiff was involved in a motor vehicle accident and commenced an action against one driver.

He later amended his claim to add a second driver as a defendant, and the first driver crossclaimed against the second driver.

The second driver successfully moved for summary judgment dismissing the plaintiff's claim as statute-barred, but the motion judge refused to dismiss the crossclaim.

On appeal, the Court of Appeal allowed the plaintiff's appeal, finding the motion judge erred by conflating a lack of due diligence with the actual date of discoverability under the Limitations Act, 2002.

The Court dismissed the second driver's cross-appeal regarding the crossclaim, upholding the motion judge's finding on when the claim for contribution and indemnity was reasonably discoverable.

The appellant appealed an arbitrator's decision dismissing her claim for attendant care benefits and a special award.

The arbitrator had found that the appellant did not clearly communicate her impecuniosity to the insurer, and therefore the insurer did not unreasonably withhold benefits under subsection 3(8) of the Statutory Accident Benefits Schedule.

The Director's Delegate rescinded the decision, holding that subsection 3(8) does not require an insured to communicate their financial inability to pay as a pre-requisite to deeming an expense incurred.

The matter was remitted to a different arbitrator for a new hearing.

The applicant was injured in a rear-end motor vehicle collision and sought statutory accident benefits from his insurer.

The insurer terminated income replacement, attendant care, and housekeeping benefits, arguing the applicant was no longer disabled and had not sustained a catastrophic impairment.

The arbitrator found that while the applicant's physical injuries were largely resolved or pre-existing, the accident triggered a mental disorder (Adjustment Disorder/Major Depressive Disorder) that caused a marked impairment in the sphere of adaptation.

Consequently, the applicant was deemed catastrophically impaired.

The arbitrator ordered the insurer to pay ongoing income replacement benefits, finding the applicant met both the eligibility and disability tests.

The arbitrator also awarded ongoing housekeeping benefits at $90 per week and specific attendant care benefits, but dismissed the claims for assessment costs and a special award.

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

The arbitrator found that the insurer was completely successful and that the applicant's conduct, including failing to comply with disclosure requirements and giving inconsistent histories to medical providers, unnecessarily prolonged the hearing.

The arbitrator awarded the insurer its expenses but reduced the requested hourly rate for counsel from $150.00 to $117.85, as the higher rate is only available to insured persons under the Dispute Resolution Practice Code.

The insurer was awarded $8,555.86 in fees, inclusive of HST, with no award for disbursements.

The applicant was injured in a motor vehicle accident and sought housekeeping and caregiving benefits from her insurer.

She moved to California shortly after the accident and gave inconsistent medical histories to various health care providers, attributing her injuries to a yoga incident or moving boxes rather than the car accident.

The arbitrator found the applicant lacked credibility and failed to prove on a balance of probabilities that she suffered any disability related to caregiving or housekeeping as a result of the motor vehicle accident.

The claims were dismissed.

The insurer brought a motion to adjourn the arbitration hearing until the applicant attended insurer examinations by a physiatrist and a cardiologist.

The insurer sought these examinations to assess the applicant's entitlement to post-104 week income replacement benefits, particularly after learning the applicant suffered a heart attack.

The arbitrator dismissed the motion, finding the request for a physiatric examination unreasonable as there is no presumptive right to an examination at the 104-week mark.

The request for a cardiological examination was also denied due to the insurer's delay in requesting it, creating a presumption that it was primarily for obtaining evidence for the hearing rather than adjusting the claim.

The prejudice to the applicant in adjourning the hearing outweighed the potential prejudice to the insurer.

The applicant sought statutory accident benefits, claiming she was a passenger in a vehicle involved in a collision.

The insurer denied the claim, asserting she was not in the vehicle.

At the preliminary issue hearing, the applicant failed to appear.

The arbitrator accepted the evidence of the other driver and passenger, as well as the responding police officer, who all testified that there were only three people in the vehicle, none of whom was the applicant.

The application was dismissed.

The arbitrator awarded the insurer $2,668.33 in expenses and ordered the applicant to pay a $3,000 penalty for commencing a frivolous and vexatious arbitration based on a misrepresentation.