David Gillespie

The applicant, who was struck by a vehicle at age six, sought non-earner benefits (NEBs) upon turning 16.

The insurer paid NEBs for seven months before terminating them following an insurer's examination.

The Licence Appeal Tribunal found that the applicant failed to prove he suffered a complete inability to carry on a normal life, as he successfully completed school, played competitive sports, and worked as a general labourer.

The application for NEBs and interest was dismissed.

Following a trial where the plaintiffs were unsuccessful in their will challenge, the court determined the issue of costs.

The court awarded costs to two non-party lawyers who testified at trial, payable out of the estate.

Applying the 'loser pays' principle, the court ordered the plaintiffs to pay the successful defendant's costs on a partial indemnity basis up to the date of a reasonable settlement offer, and on a substantial indemnity basis thereafter.

However, the court ordered $36,000 of the plaintiffs' discovery costs to be paid out of the estate, which was deducted from the costs payable to the defendant.

A municipality brought a motion for summary judgment seeking dismissal of a negligence claim arising from a motor vehicle accident allegedly caused by a curb stone that had moved from a grassy boulevard onto a roadway.

The dispute centered on which municipality had jurisdiction over the portion of the boulevard from which the curb stone originated.

Evidence including a survey established that the relevant land fell within the jurisdiction of another municipality that was responsible for roadway maintenance under the Municipal Act.

The court held that the moving municipality had no legal responsibility for the hazard and therefore owed no duty in respect of the curb stone.

Summary judgment was granted dismissing the action against the moving municipality.

The insurer, Aviva Canada Inc., sought expenses following an arbitration hearing where it was entirely successful on all substantive issues regarding the calculation of the applicant's pre-accident earning capacity and loss of earning capacity benefits.

The applicant also sought expenses, arguing that the arbitration involved a novel issue.

The arbitrator found that the issues were neither complex nor novel, as the law regarding the calculation of pre-accident earning capacity was well established.

Applying the criteria under the Expense Regulation, the arbitrator awarded the insurer $6,000.00 in expenses, based on a pragmatic approach and a ratio of two hours of preparation time to one hour of hearing time.

The appellant appealed an arbitration decision regarding the calculation of his loss of earning capacity benefits (LECB) and the denial of a special award following a motor vehicle accident.

The Director's Delegate found that the Arbitrator made no errors of law in calculating the pre-accident earning capacity by averaging the appellant's sporadic work history, nor in her assessment of the residual earning capacity based on the REC DAC reports.

The appeal was dismissed, as the issues raised primarily concerned the weighing of evidence rather than questions of law, and the Arbitrator properly applied the test for a special award.

The appellant sought to introduce fresh evidence on an appeal regarding his pre-accident and residual earning capacity following a motor vehicle accident.

The Director's Delegate applied the Palmer criteria and refused leave to file the fresh evidence, finding that the medical assessment was not relevant to the issues before the arbitrator and the union letter could have been adduced at the original hearing.

The request to file fresh evidence was dismissed.

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

A dispute arose regarding the calculation of his pre-accident earning capacity (PEC) and residual earning capacity (REC) for the purpose of determining his loss of earning capacity benefit (LECB).

The arbitrator determined the PEC based on the insurer's accountant's calculation of the best 52 weeks of income in the 156 weeks prior to the accident.

The REC was determined based on two REC DAC assessments, finding the applicant capable of working as a mechanical assembler and later as a warehouseman.

The arbitrator ordered the insurer to pay the calculated LECB amounts and interest on any outstanding benefits, but denied the applicant's claim for a special award.

The applicant was injured in a motor vehicle accident and received statutory accident benefits.

A dispute arose regarding the application of indexation provisions under section 79 of the Statutory Accident Benefits Schedule to the calculation of her loss of earning capacity (LEC) benefit.

The arbitrator determined that, unlike income replacement benefits, the indexation of the net weekly income used to determine the LEC is not limited by section 79(2).

Therefore, the applicant's net weekly income used to determine her pre-accident earning capacity is to be indexed every year starting January 1, 1995.

The insurer appealed an arbitrator's decision awarding the insured approximately $60,000 for the purchase of a new home to accommodate her accident-related mobility needs, along with a $25,000 special award for unreasonably withholding benefits.

The Director's Delegate dismissed the appeal, finding that the arbitrator did not err in concluding the insurer unreasonably withheld benefits by relying on its initial denial and failing to reconsider its position in light of subsequent medical and engineering reports.

The special award was upheld.

Following the dismissal of both the insurer's appeal and the insured's cross-appeal regarding statutory accident benefits, the parties disputed entitlement to appeal expenses.

The Director's Delegate ordered the insurer to pay the insured's appeal expenses, finding that the insured was successful on the main issue of entitlement to income replacement benefits.

The insurer was ordered to pay $7,500 in appeal expenses, representing a reasonable global assessment of the legal fees incurred to respond to the fact-based appeal.

The deceased was killed in a motor vehicle accident.

At the time, she was separated from her husband but not divorced, and they had executed a separation agreement releasing all claims.

Her dependent daughters claimed a supplementary death benefit under the SABS, which the insurer denied on the basis that the separated husband remained a 'spouse' entitled to the primary benefit.

The arbitrator awarded the benefit to the daughters and ordered a special award against the insurer.

On appeal, the Director's Delegate confirmed the death benefit award, finding the separation agreement precluded the husband's claim, but revoked the special award because the insurer's position was based on a reasonable interpretation of a novel legal issue.

The applicants sought a determination of expenses, interest, and a special award following a successful claim for statutory accident benefits (death benefits) against the insurer.

The arbitrator fixed the interest owing at $14,173.50 and the special award at $39,173.50 as of April 10, 2006.

The arbitrator held that statutory interest under section 46 of the Schedule continues to accrue post-arbitration until paid, as it is a contractual right rather than post-judgment interest under the Courts of Justice Act.

The applicants were also awarded $9,628.43 in expenses, with the arbitrator approving their counsel's hourly rate of $150 due to his experience and success in obtaining a maximum special award.

The applicant sustained severe mobility impairments following a motor vehicle accident and sought $60,291.10 from her insurer for the costs of moving from her multi-level home to a single-level bungalow.

The insurer denied the claim, arguing that the applicant could still ambulate and later asserting that she failed to submit a formal treatment plan before incurring the expense.

The arbitrator found that the move was a reasonable and necessary accommodation under section 15(5)(i) of the Statutory Accident Benefits Schedule.

The arbitrator also held that the insurer was estopped from relying on the procedural defence regarding the treatment plan due to its conduct.

A special award of $25,000 was granted against the insurer for unreasonably withholding benefits.

The applicants, dependent daughters of the deceased, claimed the full death benefit under the Statutory Accident Benefits Schedule.

The insurer paid a portion to the deceased's separated spouse, despite a separation agreement releasing all spousal claims.

The arbitrator found that the separated spouse had waived his right to the benefit, entitling the daughters to the remaining amount.

The arbitrator also ordered the insurer to pay a maximum 50% special award, finding that the insurer acted unreasonably and in bad faith by ignoring binding case law and failing to properly investigate the claim.

Following an arbitration where the applicant was largely successful in claiming statutory accident benefits, the parties could not agree on expenses.

The arbitrator determined that the applicant was entitled to her expenses.

The arbitrator assessed the legal fees, reducing the requested hourly rate from $150 to $120 due to the representative's failure to properly organize documentary evidence, which prolonged the proceedings.

The arbitrator also reduced the preparation time ratio from 4:1 to 2:1.

Total expenses of $29,704.60, inclusive of fees, disbursements, and GST, were awarded to the applicant.

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

The parties disputed the conversion of IRBs to loss of earning capacity benefits (LECBs) and the calculation of interest on overdue benefits.

The matter was remitted to the arbitrator to determine the date the parties agreed to convert IRBs to LECBs.

The arbitrator found that the parties agreed to the conversion on June 12, 1996, when the applicant signed an acknowledgement.

The insurer was ordered to pay interest on the LECBs as of June 10, 1996, to the extent of any deficiency between the benefits paid and the benefits ultimately found owing.

The applicant was injured in a motor vehicle accident in 1994 and received statutory accident benefits.

She returned to work but her condition deteriorated, forcing her to stop working in November 2000.

The insurer denied her claims for reinstated income replacement benefits and supplementary medical expenses.

The arbitrator found that the applicant's impairments were caused by the accident and that she suffered a substantial inability to perform the essential tasks of her pre-accident employment as of November 2000.

The arbitrator awarded income replacement benefits, medical expenses for chiropractic and massage therapy, and a $10,000 special award against the insurer for unreasonably withholding payments.

The insurer appealed an arbitration decision regarding the calculation of the insured's income replacement and loss of earning capacity benefits following a motor vehicle accident.

The Director's Delegate upheld the Arbitrator's findings that the employer's pension contributions were not taxable for the purpose of calculating pre-accident income, and that the tax rate on deductible long-term disability benefits should be based on the insured's total post-accident income.

However, the Director's Delegate allowed the appeal in part, finding that post-accident employee benefits paid by the employer constituted an income continuation plan and were therefore deductible collateral benefits.

The issue of interest on overdue benefits was remitted to the Arbitrator to determine the exact date the benefits were converted.

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

Following an initial arbitration decision that determined the applicant's residual earning capacity was zero, the parties disagreed on the calculation of amounts owing.

The arbitrator held that the insurer must pay interest on the loss of earning capacity benefits from the two-year mark, as the benefits were overdue.

Furthermore, the tax paid on the applicant's long-term disability benefits must be calculated based on his total post-accident income for the purpose of collateral benefit deductions.

The arbitrator also found that employer pension contributions are not taxable when calculating net weekly income, and that post-accident employee benefits are not deductible collateral benefits.

The applicant was injured in a motorcycle accident and received income replacement benefits (IRBs) which were later commuted to loss of earning capacity benefits (LECBs).

The parties disputed the calculation of his pre-accident income, the deductibility of his disability pension, and his residual earning capacity (REC).

The arbitrator held that statutory employee benefits and vacation pay were excluded from gross income, but the normal employer pension cost was included.

The insurer was not entitled to use the section 82 income tables as it failed to prove a proper election.

The applicant's disability pension was found not to be a deductible collateral benefit.

Finally, the arbitrator determined the applicant's REC to be zero, rejecting the DAC's recommendation of Service Advisor and the insurer's alternative of Production Clerk, as neither was medically, personally, or vocationally suitable given the applicant's permanent upper extremity limitations.