David S. Wilson

The applicant sought an income replacement benefit (IRB) following a motor vehicle accident, claiming he was substantially unable to perform the essential tasks of his pre-accident employment as a warehouse manager.

The respondent denied the benefit.

The Tribunal found that the applicant's injuries from the minor collision had resolved within a few months and that his ongoing pain was attributable to a pre-existing degenerative back condition rather than the accident.

The Tribunal concluded the applicant failed to prove a substantial inability to perform his employment tasks and dismissed the application for the IRB, along with claims for an award and interest.

The applicant requested a reconsideration of a Tribunal decision that denied ongoing income replacement benefits, an award under Regulation 664, interest, and costs.

The applicant argued the adjudicator made errors of law and fact.

The Vice Chair dismissed the request, finding no error of law in the adjudicator's conclusion that the Tribunal lacked jurisdiction to award ongoing benefits when entitlement and quantum were not in dispute.

The Vice Chair also found no error of fact regarding the award claim or the denial of costs, noting that the adjudicator's weighing of evidence and exercise of discretion were appropriate.

The applicant sought ongoing income replacement benefits, housekeeping benefits, and a catastrophic impairment designation following a 2007 motor vehicle accident.

The arbitrator dismissed all of the applicant's claims, finding her to be an unreliable and evasive witness whose testimony was contradicted by surveillance video, medical records, and her own prior statements.

Because the applicant's subjective reports were deemed not credible, the medical evidence relying on those reports was also rejected.

The applicant was ordered to pay $40,000 in arbitration expenses to the insurer.

The applicant requested a reconsideration of a Licence Appeal Tribunal decision regarding her entitlement to attendant care benefits following a motor vehicle accident.

The applicant argued the adjudicator made significant errors of fact and law regarding the amounts payable for feeding, bathroom cleaning, basic supervisory care, and the date interest became payable.

The Tribunal granted the reconsideration in part, finding a significant error of fact was made regarding the calculation of time required for lunch and dinner preparation.

The attendant care benefit for feeding was increased to $845.06 per month.

The remainder of the reconsideration request was denied, as the applicant failed to establish errors of fact or law on the other issues.

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

In a previous decision, the arbitrator found that the insurer unreasonably withheld payments for two occupational therapy treatment plans, entitling the applicant to a special award under s. 282(10) of the Insurance Act.

In this decision on quantum, the arbitrator applied the Persofsky framework and weighed factors including the modest amount of benefits withheld, the lengthy delay, the insurer's failure to respect important SABS obligations, and the mitigating factor of significant SABS interest payable.

The arbitrator ordered the insurer to pay a special award of $26,000.00, representing approximately 60% of the maximum permissible amount, along with the applicant's expenses of $11,105.09.

The applicant sought ongoing income replacement benefits, a special award, interest, and costs following a motor vehicle accident.

The insurer had initially terminated the applicant's income replacement benefits based on Insurer Examinations placing her within the Minor Injury Guideline, but later reinstated them after receiving additional medical records.

The Tribunal held it lacked jurisdiction under section 281 of the Insurance Act to order ongoing benefits after reinstatement.

The Tribunal dismissed the claim for a special award under Regulation 664, finding the adjuster acted properly based on the medical evidence available at the time.

Claims for interest and costs were also dismissed.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, including two occupational therapy treatment plans, which the insurer denied.

After multiple arbitrations and appeals, the sole issue returned for redetermination was whether the applicant was entitled to a special award under s. 282(10) of the Insurance Act.

The arbitrator found that the insurer acted unreasonably by ignoring overwhelming medical evidence supporting the treatment plans, relying on two unreliable and error-ridden reports from its own assessors, and failing to reconsider its position when new information was provided.

The arbitrator concluded that the insurer's conduct was stubborn, immoderate, imprudent, and inflexible, and ordered the insurer to pay a special award, with the quantum to be determined after further submissions.

The insurer sought its expenses following a successful re-hearing of the insured's claims for statutory accident benefits.

The arbitrator found the insurer was entirely successful and entitled to its arbitration expenses.

After adjusting the hearing hours and applying a 1.5:1 ratio for preparation time due to the novelty of the issues and inconsistencies in the insurer's bill of costs, the arbitrator ordered the insured to pay $6,800 inclusive of HST for legal fees and disbursements.

The applicant sought her expenses for a 2016 arbitration hearing.

The insurer argued the request was out of time.

The arbitrator found that under Rule 79.1 of the Dispute Resolution Practice Code, a request for an expense hearing must be made within 30 days of the decision.

Because the applicant did not request the expenses until August 2018, nearly two years after the decision, the motion was dismissed as out of time.

The Applicant was involved in three motor vehicle accidents (2003, 2005, 2006).

In a previous arbitration decision, it was determined that the Applicant was catastrophically impaired as a result of the 2003 accident.

The Applicant sought a determination that he was also catastrophically impaired as a result of the 2005 and/or 2006 accidents, arguing that they materially contributed to his impairment.

The Arbitrator dismissed the claim, applying the reasoning from a recent appeal decision that a person who is already catastrophically impaired for a mental or behavioural disorder cannot become 'more' catastrophically impaired by subsequent accidents.

The Arbitrator also held that the 'but for' test of causation applied, and since the Applicant was already catastrophically impaired from the 2003 accident, the subsequent accidents did not cause the catastrophic impairment.

The applicant was injured in a motor vehicle accident and sought catastrophic impairment benefits.

The insurer requested a neuropsychological insurer's examination (IE) to assess the claim, which the applicant refused to attend, arguing it was not reasonably necessary.

The insurer raised a preliminary issue that the applicant was statute-barred from proceeding with her Licence Appeal Tribunal application under section 55 of the Statutory Accident Benefits Schedule.

The Tribunal found the neuropsychological IE was reasonably necessary to determine catastrophic impairment and ordered that the applicant is statute-barred from proceeding until she attends the examination.

The applicant was involved in three motor vehicle accidents and sought a determination that he was catastrophically impaired as a result of the second and third accidents.

A previous arbitration decision had already found him catastrophically impaired due to a mental or behavioural disorder arising from the first accident.

The arbitrator applied the 'but for' test of causation and found that the subsequent accidents did not make the applicant more catastrophically impaired, as he had already crossed the threshold for enhanced benefits.

The claim for catastrophic impairment arising from the later accidents was dismissed.

The applicant sought his expenses for a variation proceeding regarding statutory accident benefits.

The respondent insurer argued for reductions in both legal fees and disbursements, and a further reduction based on divided success.

The Director's Delegate reduced the claimed preparation time to reflect a 3.5:1 ratio to hearing time and reduced several disbursements, but declined to make a further reduction for divided success, noting a hearing was required regardless.

The insurer was ordered to pay $37,582.77 in expenses.

Following the resolution of insurance coverage issues and the dismissal of the action against the uninsured motorist carrier, the plaintiffs sought costs thrown away on a substantial indemnity basis.

The plaintiffs argued the tortfeasor's insurer denied coverage for tactical reasons, necessitating a separate action.

The court rejected this argument, finding the insurer's denial of coverage due to lack of cooperation from its insured was reasonable.

The court awarded the plaintiffs partial indemnity costs of $3,500 plus $500 in disbursements for the extra discovery steps required, payable in the cause.

The insurer was entirely successful on its appeal of an arbitration decision regarding statutory accident benefits.

The Director's Delegate had previously directed the insurer to claim a rounded figure for appeal expenses, explicitly excluding transcript costs.

The insurer claimed $3,000 for expenses but subsequently added a claim for disbursements of $7,309.19, which included $7,133.95 for transcripts.

Due to this overreach, the Director's Delegate reduced the amount awarded, ordering the respondent to pay $1,500 inclusive of fees, disbursements, and HST.

This appeal addressed the scope of expert disclosure required from a defendant at the discovery stage, specifically concerning foundational documents like letters of instruction, after a Rule 53.03 compliant expert report has been served but before a decision to call the expert at trial has been made.

The Master had ordered disclosure, finding an implied waiver of litigation privilege.

The Superior Court allowed the appeal, holding that serving a Rule 53.03 report does not automatically waive litigation privilege over foundational documents at the discovery stage, distinguishing cases where experts are confirmed to testify at trial.

The court emphasized that privilege continues unless there is a reasonable suspicion of improper influence or specific rules mandate disclosure.

The applicant sought to vary a previous arbitration order to increase his attendant care benefits to cover 24/7 care, alleging a material change in circumstances due to worsening mental and physical health following a 2003 motor vehicle accident.

The Director's Delegate found that while the applicant's mental and behavioural disorders had worsened, constituting a material change, he was far less disabled than he presented.

Relying on surveillance evidence and the respondent's occupational therapist, the Delegate concluded that 24/7 care was not reasonable or necessary, as the applicant did not pose a danger to himself or others and demonstrated independent functionality.

The Delegate increased the attendant care benefits to $1,445.75 per month to account for increased emotional support and cuing needs, but dismissed the claim for a special award.

The applicant sought to vary a previous arbitration order to increase his attendant care benefits to provide for 24/7 care, alleging a material change in circumstances due to worsening mental and behavioral disorders following a 2003 motor vehicle accident.

The Director's Delegate found a material change in circumstances based on a new anxiety disorder diagnosis and worsening psychological symptoms, but rejected the need for 24/7 care, relying on surveillance evidence and an occupational therapist's assessment showing the applicant was less disabled than claimed.

Attendant care benefits were increased to $1,445.75 per month to account for additional emotional support and cuing.

The claim for a special award was dismissed.

The insurer appealed an arbitrator's decision finding the insured catastrophically impaired and entitled to medical benefits following a 2013 motor vehicle accident.

The insured had significant pre-existing physical and psychological impairments from prior accidents in 2002.

The Director's Delegate allowed the appeal, finding that the arbitrator erred in law by applying a 'material contribution' test for causation instead of the required 'but for' test.

The Delegate noted that the insured was already catastrophically impaired prior to the 2013 accident, meaning the accident could not have caused the catastrophic impairment.

Furthermore, the arbitrator breached principles of fundamental justice by refusing to even consider the insurer's request for an adjournment after the insured served a 90-page medical report just 31 days before the hearing, improperly fettering her discretion based on the impending closure of the tribunal.

The insured's claims were dismissed and costs were awarded to the insurer.

The insured and the insurer both appealed an arbitration decision regarding statutory accident benefits arising from multiple motor vehicle accidents.

The Director's Delegate found that the Arbitrator breached the rules of natural justice by admitting late affidavits from the insurer without allowing the insured to cross-examine the affiant, and by failing to address the insured's submissions on limitation periods.

Furthermore, the Arbitrator's reasons for finding the insured catastrophically impaired were deemed conclusory and inadequate, as they failed to apply the 'but for' causation test or the proper three-stage process under the AMA Guides for assessing psychiatric impairment.

The appeal and cross-appeal were allowed, and the matter was remitted to arbitration for a fresh re-hearing.