David Levy

The applicant's solicitors, Mazin Rooz Mazin, brought a motion to be removed as solicitors of record for the applicant in her statutory accident benefits arbitration.

The applicant had failed to attend scheduled pre-hearings and her solicitors were unable to contact her or obtain meaningful instructions despite numerous attempts.

The arbitrator granted the motion, finding that the solicitors had complied with the Dispute Resolution Practice Code requirements for withdrawal.

The applicant applied for arbitration regarding statutory accident benefits following a motor vehicle accident.

The applicant failed to attend two pre-hearing discussions and the scheduled hearing.

The applicant's solicitors brought a motion to be removed from the record due to a breakdown in communication, which was granted.

Due to the applicant's failure to attend and pursue the matter, the application was dismissed as an abuse of process.

The insurer was awarded its expenses of the arbitration fixed at $2,534.86.

In a further decision regarding the calculation of the applicant's Residual Earning Capacity (REC), the arbitrator determined whether compensation for hours not actually worked and shift premiums constituted overtime earnings.

The arbitrator held that both the compensation received for 3.75 hours per week not actually worked and the shift premiums were earnings from full-time employment, not overtime, and must be included in the calculation of the applicant's REC.

The applicant was injured in a motor vehicle accident and submitted an Application for Accident Benefits to the Motor Vehicle Accident Claims Fund without a police report.

The Fund argued it did not receive a completed application and that there was no nexus between it and the applicant.

The arbitrator found that while the application became complete when the Fund eventually received the police report, the applicant's choice to submit the application to the Fund was arbitrary.

Because the applicant failed to establish a sufficient nexus with the Fund, the Fund was not an 'insurer' within the meaning of section 268 of the Insurance Act and was not required to respond to the application.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits from the Motor Vehicle Accident Claims Fund (MVAC Fund).

The applicant later sought to add Wawanesa Mutual Insurance Company as an insurer to the arbitration.

The Arbitrator held that there is no jurisdiction to add Wawanesa as a party, as jurisdiction must be specifically granted or flow by necessary implication.

Section 281(2) of the Insurance Act prohibits arbitration without prior mediation, which had not occurred with Wawanesa, and O. Reg. 283/95 establishes a separate process for priority disputes.

The motion was denied.

The insurer brought a motion to dismiss the applicant's claim for statutory accident benefits on the basis of issue estoppel.

The applicant had previously sued in Small Claims Court for medical benefits, where the judge found that no motor vehicle accident had occurred.

The arbitrator held that the Small Claims Court's finding that no accident occurred was fundamental to the applicant's claim before the Commission.

Applying the doctrine of issue estoppel, the arbitrator dismissed the application for arbitration and ordered the applicant to pay $500 in expenses.

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 Insurer brought a motion for an adjournment and an order compelling the Applicant and third parties to produce various documents.

The Applicant opposed the motion and brought a cross-motion for an adjournment to mediate the issue of catastrophic impairment.

The Arbitrator dismissed the Insurer's motion, finding that the Insurer failed to provide any evidence of the relevance or probative value of the requested documents and failed to follow the rules for third-party productions.

The Arbitrator granted the Applicant's request for an adjournment, noting that the delay was caused by the Insurer's failure to promptly arrange a catastrophic impairment assessment.

The Applicant was awarded the expenses of the motion.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits, including loss of earning capacity benefits (LECBs).

The parties agreed on the applicant's pre-accident earning capacity (PEC) but disputed how to calculate his residual earning capacity (REC).

The specific issue was whether the applicant's voluntary overtime earnings at his post-accident employment should be included in the calculation of his REC.

The arbitrator held that overtime earnings are not relevant in the calculation of REC, as the legislative scheme for LECBs is intended to provide security and stability based on full-time employment income, exclusive of fluctuating overtime earnings.

The insurer brought a procedural motion seeking to compel the applicant to produce two doctors for cross-examination, after the applicant identified them as witnesses at the pre-hearing but later decided to rely only on their reports.

The arbitrator held that the applicant had a duty to inform the insurer of the change in strategy as early as possible to protect the insurer's right to cross-examine.

The hearing was adjourned to allow the doctors to be summoned.

Other procedural issues regarding late delivery of a videotape and failure to provide expert qualifications were rendered moot by the adjournment.

The parties were ordered to bear their own expenses due to the insurer's intentional disregard of the rule regarding videotape delivery.

Following an arbitration hearing where all of the applicant's claims for statutory accident benefits were dismissed, the arbitrator considered the issue of expenses.

The insurer argued that the applicant's conduct prolonged the proceeding and that his claims were unfounded.

The applicant argued that his inaccurate history was due to his medical condition, not deception, and relied on the principle of facilitating access to the dispute resolution system.

The arbitrator found that while the applicant's conduct was unreasonable at times and prolonged the proceeding, it was not so unacceptable as to warrant an award of expenses against him.

Both parties were ordered to bear their own expenses.

The insurer brought a motion to stay the arbitration proceedings because the applicant failed to attend scheduled insurer's medical examinations with a physiatrist and a psychiatrist under section 42 of the Statutory Accident Benefits Schedule.

The arbitrator found that the requested examinations were reasonable and necessary to assess the applicant's ongoing claim for income replacement benefits past the 104-week mark, especially given a newly disclosed potential psychological component.

The applicant failed to provide a reasonable excuse for non-attendance.

The arbitrator ordered that the arbitration be stayed unless the applicant makes herself reasonably available for the examinations.

The insurer brought a preliminary motion seeking to compel the insured to attend psychiatric and neuropsychological assessments under section 42 of the Statutory Accident Benefits Schedule.

The insured opposed the motion, arguing the request was not reasonably necessary and was made too close to the scheduled arbitration hearing.

The arbitrator found that while earlier medical recommendations provided a reasonable basis for the assessments, the insurer's delay of over two years in arranging them was unreasonable and prejudicial to the insured.

The arbitrator also rejected the insurer's argument that a recent psychiatric report raised a new diagnosis warranting fresh assessments.

The motion was dismissed.

The applicant was injured in a 1997 motor vehicle accident and sought statutory accident benefits, including non-earner, medical, attendant care, and housekeeping benefits.

The insurer denied the claims, arguing that the applicant's impairments were entirely attributable to a long history of pre-existing conditions, including a severe 1979 workplace head injury and subsequent accidents.

The arbitrator found that the 1997 accident did not significantly or materially contribute to the applicant's disability, as he was already totally disabled prior to the accident.

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

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them, relying on an ergonomist's report.

The applicant applied for arbitration, arguing he remained substantially unable to perform the essential tasks of his pre-accident job as a machine operator due to a shoulder injury and a traumatic brain injury.

The arbitrator found the ergonomist's report fundamentally flawed and accepted the evidence of the applicant's experts and an orthopaedic specialist retained by the insurer.

The arbitrator concluded the applicant was entitled to ongoing income replacement benefits, subject to deductions for post-accident earnings, and ordered a 15% special award against the insurer for unreasonably withholding benefits.