David S. Wilson

Following the dismissal of an appeal regarding a special award, the respondent sought legal expenses.

The appellant conceded the quantum of expenses but argued it had overpaid the special award by mistake and sought to set off the expenses against the overpayment.

The Director's Delegate held there was no jurisdiction to address the appellant's own payment error, as appeals are limited to errors of law by the Arbitrator.

The respondent was awarded his reasonable legal expenses of the appeal fixed at $3,559.50.

The insurer appealed a pre-hearing arbitrator's decision refusing its request for an order compelling the insured to attend further insurer examinations (IEs) and precluding the introduction of IE reports and surveillance evidence.

The Director's Delegate dismissed the appeal, finding that while the arbitrator erred in stating that the sole right an insurer has to conduct IEs is to adjust the file, the arbitrator made a factual finding that there was no evidence the request reflected any further need based on adjusting the file.

The Delegate also noted procedural deficiencies in the insurer's notices, which were sent under the wrong regulation.

The Delegate declined to interfere with the evidentiary rulings, noting that the hearing arbitrator is not bound by the pre-hearing arbitrator's decisions.

The insurer brought a motion seeking an order to compel the insured to attend a section 44 insurer's examination, to stay the arbitration hearing, and to suspend interim income replacement benefits.

The insurer argued that the passage of the 104-week mark constituted a change in circumstances giving it a prima facie right to an assessment.

The Arbitrator dismissed the motion, finding that the insurer had ample notice of the post-104 week claim but unreasonably delayed its request for an examination until the eve of the resumed arbitration hearing, which prejudiced the insured.

The applicant insurer brought a variation application to suspend ongoing income replacement benefits, which was previously rejected as an unnecessary multiplicity of proceedings.

The respondent insured subsequently sought her legal expenses for the variation application.

The Director's Delegate found that the respondent was completely successful and that the variation application was unnecessary.

The applicant was ordered to pay the respondent's legal expenses fixed at $1,254.30.

The appellant insurer sought to appeal an arbitrator's preliminary order denying an adjournment of the arbitration hearing following the death of its expert witness.

The appellant subsequently requested to stay or adjourn the appeal, or alternatively to withdraw it.

The Director's Delegate refused the stay, finding it would run counter to the goal of cost-effective and efficient dispute resolution.

The Delegate permitted the appellant to withdraw the appeal without prejudice, on the condition that it pay the respondent's legal expenses of $881.40.

If not withdrawn within seven days, the appeal would be rejected on the same terms.

The applicant sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario, which upheld an arbitrator's dismissal of her claim for statutory accident benefits.

The arbitrator found the applicant failed to prove her conditions were caused by a 1993 motor vehicle accident.

The Divisional Court dismissed the application, finding that the arbitrator did not ignore evidence and reasonably drew adverse inferences from the applicant's failure to call witnesses regarding her pre-accident health.

The applicant sought an interim order for income replacement and housekeeping benefits, arguing the insurer breached sections 37(1)(a) and 37(9) of the Statutory Accident Benefits Schedule when terminating her benefits.

The arbitrator held that a procedural breach of section 37(1)(a) alone, without evidence of a prima facie case, compelling need, or urgency, does not entitle an insured to an interim order for benefits.

The arbitrator also found that any breach of section 37(9) was irrelevant as the termination was based on a different medical report.

The motion for interim benefits was dismissed.

The insurer applied to vary a preliminary appeal order that had made an arbitrator's entitlement orders interim pending a full hearing.

The insurer sought to suspend income replacement benefits due to the insured's refusal to attend insurer medical examinations, and requested various other procedural orders.

The Director's Delegate rejected the variation application, finding that the issues raised were properly within the purview of the arbitrator at the upcoming hearing, and that accepting the application would lead to a multiplicity of proceedings without producing a quick, just, and least expensive resolution.

The insurer applied to vary an arbitrator's final decision that denied the insured's entitlement to ongoing income replacement benefits (IRBs) but failed to order the repayment of interim IRBs paid prior to the final decision.

The Director's Delegate found that the failure to address the repayment issue, which had been explicitly argued at the hearing, constituted an error in the order under section 284(3) of the Insurance Act.

The order was varied to require the insured to repay $15,840 in interim IRBs to the insurer.

The insurer applied to vary or revoke a 2007 order to pay income replacement benefits, but sought to withdraw the application during the hearing, claiming its psychological expert changed his opinion.

The arbitrator allowed the withdrawal but imposed a term precluding the insurer from filing further applications regarding the 2007 order until it substantiated the expert's change of opinion.

The arbitrator also assessed the insured's expenses, awarding $18,204.83 for legal fees and disbursements, including reduced amounts for several expert reports that were deemed inefficient or of limited value.

The applicant insurer sought to vary an ongoing weekly income replacement benefits order due to the respondent's receipt of collateral benefits.

After a decision on the deductibility of those benefits, both parties sought their legal expenses for the variation application.

The Director's Delegate ordered that each party bear their own legal expenses, finding that while the insurer was successful on the deductibility issue, it had unnecessarily divided its case between the Commission and the courts, and the novel issues raised militated in favour of the insured person.

The insurer applied to vary or revoke an order granting the insured ongoing income replacement benefits.

During the hearing, the insurer sought to withdraw its application after its psychological expert changed his opinion to support the insured's disability claim.

The insured opposed the withdrawal, seeking instead a dismissal with terms requiring the production of clinical notes and an addendum from the expert.

The arbitrator deferred ruling on the dismissal and expenses, but ordered the insurer to produce a written statement from its expert explaining the change in opinion, while allowing the parties to make further written submissions.

The applicants sought expenses following the resolution of an interim benefits motion regarding a motor vehicle accident claim.

The parties had agreed on interim benefits but could not agree on expenses.

The arbitrator reviewed the applicants' Bill of Costs, allowing 30 hours of counsel time at $150 per hour after deducting duplicative and premature claims.

Disbursements for reports were allowed up to the maximum under the Expense Regulation, and photocopying was permitted, while parking was disallowed.

The applicants were jointly awarded $19,846.22 in expenses, inclusive of HST.

The appellant appealed an Arbitrator's award of arbitration expenses.

The appellant argued the Arbitrator erred by applying a low ratio of preparation to hearing time for legal fees and by reducing the cost of expert reports by 50% because they were also used in a tort proceeding.

The Director's Delegate dismissed the appeal regarding legal fees, finding the actual ratio applied was generous and within the Arbitrator's discretion.

However, the appeal regarding expert reports was allowed, as the legislation does not permit reducing expenses based on potential recovery in another proceeding.

The appellant was awarded the full amount claimed for expert reports and disbursements.

The insurer applied to vary a previous arbitration order regarding the payment of weekly income replacement benefits, arguing that the insured's receipt of reinstated long-term disability benefits and Canada Pension Plan disability benefits constituted a material change in circumstances.

The Director's Delegate found that both the long-term disability benefits and the CPP benefits were deductible from the income replacement benefits as they constituted payments under an income continuation benefit plan.

However, because the insurer had also commenced a civil action seeking repayment of past benefits, the Delegate stayed the variation proceeding pending the court's determination of the correct quantum and repayment issues to avoid a multiplicity of proceedings and inconsistent results.

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

The insurer terminated these benefits at the 104-week mark based on a multidisciplinary assessment suggesting the applicant could perform alternative employment.

The applicant sought a special award, arguing the termination was unreasonable.

The arbitrator found that the insurer failed to critically assess the expert reports, which contained significant inconsistencies and ignored the applicant's pre-accident income and limited education.

The insurer's reliance on a flawed assessment process and failure to consider credible evidence to the contrary constituted an unreasonable withholding of benefits.

A special award of 40% of the withheld benefits was ordered.

The appellant appealed an Arbitrator's decision denying a special award under s. 282(10) of the Insurance Act.

The insurer had denied accident benefits based on an engineering report and suspicions of a staged accident, partly due to the common ethnicity of the individuals involved.

The Director's Delegate found that the Arbitrator erred in law by failing to provide adequate reasons for concluding that the insurer reasonably relied on the engineering report, especially after the expert's testimony undermined the report's conclusions.

The appeal was allowed and the issue of the special award was returned to arbitration.

The insurer raised preliminary issues arguing that the insured's claims for a catastrophic impairment determination and post-104 week housekeeping benefits were barred by limitation periods, res judicata, and failure to bring claims in a timely fashion.

The Arbitrator held that there was no limitations defence for the catastrophic impairment claim, as no claim had been previously submitted and denied.

The catastrophic impairment claim was also not barred by res judicata from prior arbitration orders.

However, the claim for post-104 week housekeeping benefits was barred by res judicata, as it should have been raised during the final arbitration hearing before Arbitrator Rogers.

The Arbitrator also found no section 50 defence regarding timely notice.

The defendants brought a motion for leave to appeal an order requiring a defendant to disclose the material information contained in a statement he gave to his insurer following a motor vehicle accident.

The statement itself was protected by litigation privilege.

The motion judge found that the order compelling disclosure conflicted with other Ontario decisions regarding whether the contents of a privileged statement must be disclosed on discovery.

Leave to appeal was granted as it was desirable for the Divisional Court to clarify when the contents of such statements are subject to disclosure.

The insurer brought a motion seeking an order to compel the insured person to attend psychiatry, physiatry, and neurology assessments, and to adjourn the ongoing arbitration hearing pending her attendance.

The insurer had not served a proper Notice of Examination under section 65 of the Statutory Accident Benefits Schedule prior to the motion.

The arbitrator dismissed the motion, finding no jurisdiction to order attendance without proper Notice.

Furthermore, the arbitrator noted that the insurer did not intend to rely on the assessment reports in the current arbitration, and that the insurer's delay in requesting the assessments was unreasonable.