David S. Wilson

Following a decision awarding the applicant attendant care benefits, the parties sought a determination on the accrual date for interest and the quantum of arbitration expenses.

The Arbitrator held that interest on the attendant care benefits accrued from 10 business days after the applicant delivered an Assessment of Attendant Care Needs, rejecting the argument that the insurer's prior knowledge of the need triggered an earlier accrual date.

The Arbitrator awarded the applicant $73,515.94 in arbitration expenses, applying deductions for issues on which the applicant was unsuccessful and for certain unrecoverable disbursements.

The parties were ordered to bear their own expenses for the costs hearing.

The appellant appealed an arbitrator's decision denying her a special award under s. 282(10) of the Insurance Act, despite finding she was entitled to two treatment plans.

The Director's Delegate found that the arbitrator's reasons for denying the special award were conclusory and failed to address the live issues and key arguments raised by the appellant.

The appeal was allowed, the denial of the special award was rescinded, and the issue was remitted for redetermination before a different arbitrator.

The appellant successfully appealed an arbitrator's variation order that had allowed the insurer to deduct Canada Pension Plan disability benefits from his income replacement benefits.

The appellant sought his expenses for both the variation and the appeal.

The insurer argued that no expenses should be allowed because the appellant's representative failed to provide submissions during the variation proceeding, which prolonged the matter.

The Director's Delegate found that while the appellant should have provided submissions, the appeal raised novel issues and most expenses would have been incurred regardless.

The Director's Delegate awarded the appellant $5,500 in global expenses, inclusive of disbursements and HST.

The plaintiff's employment was terminated, which immediately ended his long-term disability (LTD) coverage under the employer's group policy.

Two months later, he became totally disabled in a motor vehicle accident.

The employer inadvertently continued paying LTD premiums, and the insurer initially denied the claim based on lack of total disability and late filing, while reserving the right to investigate eligibility.

The plaintiff argued the insurer waived the termination date of the policy.

The court dismissed the action, finding no waiver because the insurer lacked full knowledge of the termination and did not unequivocally intend to relinquish its right to rely on the policy's termination clause.

In an insurance action arising from a denied long-term disability claim, the defendant moved during trial to amend its statement of defence to add express reliance on a termination clause in the group policy.

The court held that Rule 26.01 requires leave to amend at any stage unless the responding party would suffer prejudice not compensable by costs or an adjournment.

Although the timing of the motion was criticized, the court found any prejudice could be addressed through procedural accommodations, including a short adjournment, further discovery, or recalling witnesses.

The amendment was therefore permitted.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, claiming he sustained a catastrophic impairment due to a mental disorder.

The insurer argued the mental disorder was genetically based and not caused by the accident.

The Arbitrator found that the accident caused the applicant's mental disorders, which resulted in a marked impairment of his ability to function, meeting the definition of catastrophic impairment.

The applicant was awarded attendant care benefits at a reduced rate, as he did not require round-the-clock care.

Claims for Botox injections and a special award were dismissed.

The applicant was injured in a motor vehicle accident on October 29, 2010, and claimed statutory accident benefits.

The insurer reinstated her Income Replacement Benefits shortly before the arbitration hearing but disputed the need for an ongoing order and the applicable interest rate on overdue payments.

The arbitrator ordered ongoing IRBs at $400 per week.

On the issue of interest, the arbitrator held that because the accident occurred after September 1, 2010, the New Schedule applied, limiting the interest rate on overdue payments to 1 percent per month, despite the applicant holding a transitional policy.

The original arbitrator commenced a hearing but did not complete it.

A pre-hearing discussion was held to determine how to proceed.

The parties agreed that the hearing should be recommenced de novo.

The new arbitrator ordered that the hearing be reheard from the beginning, that the new arbitrator not be given a copy of the transcript of the incomplete hearing, and that the insurer not be permitted to use or introduce any part of the transcript in the rehearing.

The applicant sought expenses following a successful appeal on a preliminary limitations issue in a statutory accident benefits dispute.

The insurer requested a delay of the expense determination pending its application for judicial review to the Divisional Court.

The arbitrator declined to delay the expense hearing, noting that under the Insurance Act, an application for judicial review does not automatically stay the decision.

Finding that the applicant was successful and her claimed expenses were reasonable and proportional, the arbitrator awarded the applicant $4,858.95 in fixed expenses.

The insurer brought an application to vary a 2007 order that required it to pay the insured $263.51 per week in income replacement benefits.

The insurer argued that the insured's receipt of CPP Disability Benefits constituted a material change in circumstances and that the benefits should be deducted from the income replacement benefits.

The insured consented to the variation, provided it was effective from the date she was served with the application.

The arbitrator found a material change in circumstances and varied the order on consent, reducing the weekly income replacement benefits to $130.35 effective October 2, 2013.

The appellant was successful on an appeal that rescinded an arbitrator's dismissal of her application for arbitration.

The appellant sought her legal expenses for the appeal.

The respondent requested that the expense decision be held down pending a motion to the Divisional Court for a stay of the appeal order.

The Director's Delegate declined to hold down the decision, finding it more efficient for all orders to be before the Divisional Court.

The Delegate awarded the appellant her appeal expenses, fixed at $3,487.44, noting her success on the appeal and the novelty of the issues raised.

The insurer brought an application to vary an arbitration order to permit the deduction of Canada Pension Plan (CPP) disability benefits received by the insured from the income replacement benefits to which he was entitled.

The insured had begun receiving CPP disability benefits part-way through the original arbitration hearing but failed to disclose this to the insurer or the arbitrator.

The arbitrator found that the undisclosed receipt of CPP disability benefits constituted evidence that was not available on the arbitration but had since become available.

The application was granted, and the previous order was varied to allow the insurer to deduct the CPP disability benefits previously received by the insured.

The parties settled all issues in the arbitration, and the Arbitrator previously issued an order staying the arbitration with specific terms for dismissal.

The applicant brought a motion arguing that the Arbitrator's written reasons contained an additional term reserving discretion to schedule new hearing dates within 12 months.

The Arbitrator dismissed the motion, finding that any term or reservation of discretion must be found in the formal order, not just the reasons, and that the previous order only reserved discretion in the specific event that the insurer terminated income replacement benefits.

The applicant insurance company sought judicial review of a Financial Services Commission of Ontario (FSCO) decision regarding the applicable interest rate on overdue Statutory Accident Benefits.

The central issue was the interpretation of transitional provisions between the old and new Statutory Accident Benefits Schedules for amounts becoming overdue after September 1, 2010.

The Divisional Court determined the standard of review was reasonableness, as the Tribunal was interpreting its home statute.

The Court dismissed the application, finding the Tribunal reasonably concluded that the 2% interest rate under the old regulation continued to apply to amounts that became overdue after September 1, 2010.

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

The insurer terminated housekeeping and income replacement benefits.

The arbitrator held that the appellant was precluded from proceeding to arbitration due to the expiration of the limitation period.

On appeal, the Director's Delegate found that the arbitrator erred in law by failing to give reasons for the housekeeping limitation order.

Furthermore, the Delegate held that the insurer could not rely on the limitation period for the income replacement benefits because it failed to comply with the mandatory statutory termination process, specifically by not providing the required medical examination reports to the appellant and her health practitioner.

The arbitrator's decision was rescinded, and the issues were returned to arbitration.

The applicant was injured in a motor vehicle accident and applied for arbitration of her claims for statutory accident benefits.

The parties settled the claims on the eve of the hearing, with the insurer agreeing to pay the applicant's arbitration expenses.

The parties could not agree on the amount, leading to this hearing.

The arbitrator reduced the claimed legal fees, finding 50 hours reasonable instead of the claimed 62.625 hours, and deducted a small amount for parking and mileage from the disbursements.

The applicant was awarded $18,385.66 in fees and disbursements.

Following a partial settlement of the applicant's claims for statutory accident benefits, the parties could not agree on the quantum of expenses payable by the insurer.

The arbitrator assessed the applicant's legal fees and disbursements, reducing the claimed hours and applying a 40% reduction to account for work related to unsettled issues.

The arbitrator awarded $14,140.18 in expenses but allowed the insurer to set off $1,000 previously ordered against the applicant for a late disclosure adjournment, resulting in a net award of $13,140.18.

The Appellant appealed an arbitrator's expense decision following a statutory accident benefits arbitration.

The arbitrator had awarded the Appellant reduced legal fees based on a 1:1 preparation-to-hearing ratio due to his modest success, and had also significantly reduced the Appellant's claimed disbursements without giving the Appellant an opportunity to respond to the arbitrator's specific concerns.

The Director's Delegate upheld the reduction in legal fees as a valid exercise of discretion.

However, the Delegate found that the arbitrator's process for determining disbursements denied the Appellant procedural fairness, as the Appellant was not given a chance to provide supporting documentation or submissions addressing the arbitrator's concerns.

The disbursement portion of the order was rescinded and remitted for a new hearing.

Costs decision following litigation between the applicant and multiple respondents in a commercial dispute.

The court considered the discretionary factors under Rule 57 of the Rules of Civil Procedure, including proportionality, complexity, and the reasonable expectations of the unsuccessful party.

Although the matter was not factually or legally complex, it was important to the litigants.

The court found that one respondent had been more successful than the applicant.

Costs were fixed at $30,000 inclusive of taxes and disbursements, payable partly immediately and partly upon the sale of property.

The Applicant sought expenses following a successful arbitration regarding statutory accident benefits.

The arbitrator applied the criteria under section 12(2) of Ontario Regulation 664, noting the Applicant's success and the insurer's conduct in prolonging the proceeding.

The arbitrator awarded the Applicant $45,595.50 in legal fees, inclusive of HST, after deducting hours claimed for an unsuccessful motion and travel time.