David S. Wilson

The insurer appealed an arbitration order requiring it to pay income replacement benefits pending the resolution of a dispute.

After a Designated Assessment Centre (DAC) concluded the insured met the disability test, the insurer continued paying benefits but later restarted the stoppage process based on new insurer examinations.

The Director of Arbitrations dismissed the appeal, holding that under section 37(5) of the SABS-1996, once a DAC concludes benefits are payable, the insurer must continue paying them and can only challenge ongoing entitlement through the dispute resolution process, rather than unilaterally restarting the stoppage process.

The insured person was injured in a motor vehicle accident and initially elected to receive caregiver benefits.

She later attempted to re-elect income replacement benefits, which the insurer refused on the basis that elections are irrevocable.

The Arbitrator found the initial election invalid because the insurer failed to provide sufficient information about the implications of the choice, specifically that the higher benefit might not be the longer-lasting one.

On appeal, the Director's Delegate upheld the Arbitrator's decision, finding that the insurer did not meet its obligations under s. 32(2)(d) of the SABS-1996.

The Delegate also held that s. 36 allows an insured person to re-elect benefits, subject to statutory time limits and the requirement to provide a reasonable explanation for any delay.

The applicant, who was injured in a motor vehicle accident, applied for statutory accident benefits from the insurer.

During a pre-hearing discussion, the applicant sought to add several issues to the arbitration hearing, including claims for medical and rehabilitation expenses and a special award.

The arbitrator ordered the insurer to respond to seven additional issues previously identified and ordered the applicant to provide particulars for the special award claim.

The arbitrator declined to add two newly raised issues to the hearing because they had not yet been mediated, doing so without prejudice to the applicant's right to mediate them.

The insurer applied to vary an earlier order that awarded the applicant interim income replacement and housekeeping benefits, arguing the benefits should terminate at the 104-week mark.

The applicant opposed the variation and brought a motion for continued interim income replacement benefits.

The arbitrator found that the change in the disability test after 104 weeks constituted a material change in circumstances, justifying a variation of the original order to terminate benefits as of January 9, 2004.

However, based on the applicant's demonstrated financial need and strong medical evidence of ongoing physical and psychological disability, the arbitrator issued a fresh order granting continued interim income replacement benefits pending the final arbitration hearing.

The appellant insurer appealed an arbitration order regarding income replacement benefits, a special award, and arbitration expenses.

The appeal was partially allowed.

Both parties subsequently claimed their appeal expenses.

The Director of Arbitrations held that the new expense criteria under O. Reg. 275/03, which came into effect after the appeal was heard but before the decision was released, applied retrospectively because expense provisions are procedural.

Applying the new criteria, the Director ordered the parties to bear their own appeal expenses due to the mixed outcome of the appeal.

The appellant appealed an order dismissing his claim for lack of jurisdiction.

The Court of Appeal dismissed the appeal, finding that the appellant's claim had no real and substantial connection with Ontario, as the only connection was the appellant's current residence in the province.

The Court further noted that the Saskatchewan Court of Queen's Bench was the convenient forum to litigate the claim.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them after 104 weeks.

The applicant sought arbitration, claiming a complete inability to engage in any employment for which she was reasonably suited.

The arbitrator reviewed the applicant's education, training, and work history, noting she primarily worked part-time.

Relying on the consensus of the applicant's own medical experts that she could return to part-time sedentary work, the arbitrator found she did not meet the test for complete inability to work.

The application for income replacement benefits and a special award was dismissed.

The insurer brought a motion to order further productions, add new issues (specifically defences under sections 32 and 33 of the Statutory Accident Benefits Schedule), adjourn the arbitration, and hold a preliminary issue hearing.

The arbitrator dismissed the motion, finding that the insurer had unreasonably delayed in raising these defences despite being aware of them early in the process.

Applying the doctrine of laches, the arbitrator held that adding the issues on the eve of the hearing would cause prejudice to the insured that could not be compensated by costs or an adjournment.

The insurer was ordered to pay $650 in fixed expenses to the insured.

The applicant sought interim housekeeping and income replacement benefits pending arbitration of his claim arising from a motor vehicle accident.

The arbitrator applied the three-part test for interim mandatory orders, requiring the applicant to establish a strong prima facie case, irreparable harm, and that the balance of convenience favoured granting the relief.

The arbitrator found the applicant failed to establish it was more probable than not he would succeed at the hearing, failed to demonstrate irreparable harm given the availability of an earlier hearing date, and found the balance of convenience favoured the insurer.

The motion for interim benefits was dismissed.

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

The insurer terminated these benefits based on a Disability Designated Assessment Centre (DAC) report.

The applicant argued the DAC assessment was flawed and did not comply with the guidelines, seeking reinstatement of benefits.

The arbitrator found that the DAC assessment substantially complied with the guidelines and that the termination was valid under section 37 of the Schedule.

The arbitrator also held that the insurer was entitled to conduct further reasonably necessary medical examinations under section 42 to determine entitlement to post-104 week benefits.

The insurer appealed an arbitration decision ordering it to pay income replacement benefits beyond the 104-week mark, a maximum special award, and arbitration expenses.

The Director of Arbitrations upheld the ongoing entitlement to income replacement benefits, finding that the evidence supported the conclusion that the insured suffered a complete inability to engage in suitable employment.

However, the special award was reduced to $5,000 because the insurer's initial reliance on its experts was not unreasonable, and the arbitration expenses were slightly reduced to exclude pre-mediation legal work.

The insurer brought a motion to stay the arbitration proceedings and prohibit the insured from receiving income replacement benefits until he attended independent medical examinations (neurology, physiatry, and psychology).

The arbitrator dismissed the motion, finding that the requested examinations were not reasonably necessary at this stage to adjust the claim, but rather appeared to be sought for the tactical purpose of marshalling evidence for the upcoming arbitration.

The insurer had prior notice of the insured's neurological concerns but failed to follow up in a timely manner.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them.

The applicant brought a motion for interim benefits pending the resolution of the dispute.

The insurer ultimately did not oppose the order for interim benefits but sought a ruling on whether an interim benefits order is available where an insurer is already paying the benefits, relying on a previous decision.

The arbitrator ordered the insurer to pay interim income replacement benefits, finding that the insurer failed to comply with the Schedule when terminating the benefits, and distinguished the previous decision relied upon by the insurer.

The claim for a special award was dismissed on consent.

The applicant was injured in a motor vehicle accident and sought interim income replacement and housekeeping and home maintenance benefits after the insurer terminated them.

The arbitrator found that the applicant established financial need, having exhausted his savings and borrowed money to meet living expenses.

The arbitrator also found that the applicant established a prima facie case for entitlement to the benefits based on medical evidence of his inability to perform his pre-accident job as a janitor and his housekeeping duties.

The motion for interim benefits was granted.

The applicant sought interim weekly income replacement benefits (IRBs) and housekeeping benefits following two motor vehicle accidents.

The insurer had terminated benefits based on an insurer's medical examination which concluded the applicant could return to work.

The arbitrator found that the insurer's medical assessment improperly ignored the applicant's pain and relied on flawed heart rate testing to conclude a lack of effort.

Finding that the applicant established a very probable case for ongoing entitlement, the arbitrator ordered the insurer to pay interim IRBs of $400 per week for a 17-week period.

The claim for interim housekeeping benefits was dismissed for lack of evidence.

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

The insurer terminated and later reinstated the benefits with arrears.

A dispute arose over whether the insurer could set-off a deductible lump sum payment of collateral benefits against the benefit arrears, or if it had to recover the deduction through 20 per cent reductions in the reinstated benefits.

The arbitrator held that the insurer was entitled to set-off the deduction against the benefit arrears, as this prevented over-compensation and aligned with the purpose of the Schedule.

The insurer was also ordered to pay the applicant's hearing expenses.

The applicant sought interim income replacement benefits after the insurer terminated them despite a positive disability Designated Assessment Centre (DAC) report.

The arbitrator held that an insurer is not bound by a pre-104 week positive DAC assessment for post-104 week benefits, as the test for entitlement changes significantly at that threshold.

However, the arbitrator ruled that a mere change in the insured's medical condition does not allow an insurer to bypass the dispute resolution process and terminate benefits contrary to a positive DAC, unless the change is as significant and material as the passage of the 104-week mark.

Allstate appealed an Arbitrator's order that included the insured's accrued vacation pay in her pre-accident income for calculating income replacement benefits (IRBs) and established her ongoing entitlement to IRBs.

The Director's Delegate allowed the appeal, finding that the Arbitrator erred in law on both issues.

First, the Arbitrator lacked jurisdiction to make an entitlement order without a full hearing on the merits, as the insurer had only agreed to reinstate benefits without waiving its right to contest entitlement later.

Second, accrued vacation pay is deferred income and should not be included in pre-accident income unless it was actually paid or available to the insured prior to the accident.

The applicant was injured in a motor vehicle accident and elected to receive caregiver benefits.

She later sought to change her election to claim income replacement benefits.

In a prior preliminary decision, the arbitrator found her election invalid.

On appeal, the Director's Delegate directed the arbitrator to decide the alternative issue: assuming the election was valid, was the applicant entitled to change it as of right.

The arbitrator held that an insured person is not entitled to change a valid election as of right.

Any such change must be determined on the basis of relative prejudice, consumer protection, and legislative purposes.

The insurer brought a motion to adjourn an upcoming arbitration hearing until the insured attended three insurer medical examinations (IMEs) to assess her entitlement to income replacement benefits.

The arbitrator denied the adjournment, finding that the insurer failed to provide adequate notice of the consequences of non-attendance and failed to specify the qualifications of the practitioners.

Furthermore, the insurer had multiple prior opportunities over a year and a half to request the IMEs but failed to do so in a timely manner.

The prejudice to the insured caused by further delay outweighed any prejudice to the insurer, which was of its own making.