David S. Wilson

The applicant sought arbitration expenses following a successful claim for statutory accident benefits.

The insurer argued for a reduction in the hourly rate and the number of hours claimed, and objected to full reimbursement of expert reports because they were also being used in an ongoing tort proceeding.

The arbitrator allowed the maximum hourly rate of $150, reduced the claimed hours using a broad approach rather than a line-by-line analysis, and allowed 50% of the cost of the expert reports.

The applicant was awarded a total of $30,001.31 in arbitration expenses.

The applicant sought expenses following an arbitration for statutory accident benefits where he was substantially successful on the issue of income replacement benefits.

The applicant claimed $74,682.46 in expenses, including $52,723.13 for legal fees.

The insurer disputed the amount claimed for legal fees, arguing for a lower amount.

The arbitrator applied a 3:1 ratio of preparation time to hearing time, finding the applicant's claimed hours excessive.

The arbitrator awarded the applicant $40,623.08 in total expenses, inclusive of disbursements and GST.

The applicant sought post-104 week income replacement benefits following a motor vehicle accident.

During the pre-hearing, the applicant requested an order compelling the insurer to produce any additional surveillance evidence no later than 15 days after receiving it, in addition to the insurer's agreement to produce all surveillance 90 days before the hearing.

The arbitrator found that the request for the 15-day production order was moot because the 90-day deadline before the scheduled hearing had already passed by the time the motion was decided.

The motion for the further order was dismissed.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario, which upheld two arbitrators' refusals to order independent medical examinations of the respondent claimant.

The arbitrators had denied the insurer's requests primarily due to the insurer's delay in seeking the examinations until the eve of or during the arbitration hearings.

The Divisional Court applied the reasonableness standard of review and dismissed the application, finding that the Director's Delegate reasonably concluded the arbitrators had properly exercised their discretion to refuse the examinations in the interests of fairness and preventing delay.

The insurer appealed an arbitrator's decision denying its request for an order requiring the insured to attend insurer examinations (IEs) with a psychiatrist, oncologist, and physiatrist.

The Director's Delegate confirmed the arbitrator's decision, finding no error in the conclusion that the insurer failed to provide sufficient evidence that the IEs were reasonably necessary.

The appeal was dismissed.

The applicant was injured in a motor vehicle accident and sought ongoing income replacement benefits (IRBs) after the insurer terminated them.

The insurer argued the applicant was unemployed at the time of the accident and exaggerated his symptoms.

The arbitrator found the applicant was employed through a temporary placement agency at the time of the accident and that his pre-accident health issues did not prevent him from working.

Relying on objective medical evidence of a torn shoulder tendon, the arbitrator rejected the insurer's expert opinions that the applicant was magnifying his symptoms.

The arbitrator concluded the applicant was substantially unable to perform the essential tasks of his employment and awarded IRBs up to the date he reported limitations from unrelated health conditions.

The parties settled the applicant's claims for statutory accident benefits prior to the arbitration hearing.

The applicant sought $15,710.81 in legal fees and disbursements.

The insurer agreed the applicant was entitled to expenses but disputed the amount, arguing the hours claimed were excessive and certain expert reports were not reasonably required.

The arbitrator found the preparation time and correspondence hours reasonable, and accepted that the disputed expert reports were reasonably required.

The arbitrator fixed costs and disbursements at $12,000 inclusive of GST.

The insurer appealed an arbitrator's decision refusing its request for an adjournment to conduct insurer examinations under section 42 of the Statutory Accident Benefits Schedule.

The Director's Delegate held that while arbitrators have the jurisdiction under the Statutory Powers Procedure Act to adjourn a hearing and stay proceedings where an insured unreasonably refuses to attend an insurer examination, the arbitrator in this case properly exercised his discretion in refusing the adjournment.

The arbitrator found the request was made too late and the insurer already knew the case it had to meet.

The appeal was dismissed.

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

The parties settled all issues except for expenses.

The insurer argued that its expenses from a preliminary issue hearing should be deducted from the applicant's expenses.

The arbitrator found that the release signed by the parties unambiguously required the insurer to pay the applicant's reasonable expenses.

The arbitrator awarded the applicant $35,430.00 for the arbitration expenses and an additional $150.00 for the expense hearing.

The insurer appealed an arbitrator's decision awarding the insured 8.3 weeks of non-earner benefits, arguing the arbitrator erred in finding the insurer had conceded entitlement.

The insurer relied on a transcript of the hearing to prove no concession was made.

However, the stenographer who produced the transcript had not been sworn in by the arbitrator as required by section 22(3) of the Insurance Act.

The Director's Delegate held that an unsworn transcript does not form part of the official appeal record and cannot take precedence over the arbitrator's express findings of fact.

The appeal was dismissed.

The applicant was injured in a motor vehicle accident and subsequently signed a settlement agreement with the insurer for additional statutory accident benefits.

The applicant later sought to rescind the settlement, arguing the settlement documents did not comply with the Settlement Regulation.

The arbitrator held that the insurer bears the onus of proving compliance with the Settlement Regulation, rejecting the application of the presumption of regularity to private insurance settlements.

The arbitrator found that the settlement documents failed to provide the required commuted values and maximum monetary limits for various benefits, thereby failing to achieve even minimal compliance.

The applicant was therefore entitled to rescind the settlement and pursue her claim for additional benefits.

The applicant was injured in a motor vehicle accident and received benefits until February 2008.

The insurer requested the applicant attend a neurological examination under section 42 of the Statutory Accident Benefits Schedule prior to the arbitration hearing.

The applicant refused, arguing the insurer's previous physiatry examination was sufficient, the notice was improperly given by the insurer's lawyer, and the notice lacked a required fax cover page.

The arbitrator found that the physiatry examination was not a substitute for a neurological assessment, the lawyer was authorized to give notice, and the lack of a fax cover page was an inconsequential procedural defect since receipt was acknowledged.

The arbitrator concluded the request was reasonable because the applicant's neurological condition was a central issue and the insurer had not yet obtained a neurological opinion to assess its risk.

The applicant sought payment for a chiropractic treatment plan following two motor vehicle accidents in 2001.

The insurer refused to fund the treatment.

The arbitrator found that the applicant had a history of chronic pain and psychological factors, including somatization, which prevented her from benefiting from physical therapies.

Relying on the opinion of a pain medicine and psychiatry specialist retained by the applicant's own lawyer, the arbitrator concluded that no specific treatment could help the applicant's condition.

The application for arbitration was dismissed.

The applicant claimed accident benefits following a rear-end collision.

The insurer denied the claim, alleging the accident was staged and citing suspicious factors including the parties' shared ethnic background.

At arbitration, both parties presented accident reconstruction experts whose evidence the arbitrator rejected as unreliable.

However, based on the consistent testimony of the applicant and his passenger, supported by physical evidence such as paint transfer and airbag deployment, the arbitrator found the accident did occur.

The applicant's claim for a special award under s. 282(10) of the Insurance Act was dismissed; although the arbitrator condemned the insurer's consideration of race as a suspicious factor, he found the insurer had principally and reasonably relied on its expert's opinion to deny the claim.

The insurer brought a motion for disclosure of information and documents in a statutory accident benefits dispute.

The insurer sought the addresses of the applicant's attendant care and housekeeping service providers, Defence Medical Reports from a related tort action, and details of the tort settlement.

The arbitrator ordered the applicant to provide the names and addresses of the service providers, finding it necessary for the insurer to prepare its defence.

However, the arbitrator denied the requests for the Defence Medical Reports and tort settlement details, as the insurer failed to provide sufficient evidence to justify production and the settlement details were not relevant to the issues in dispute.

The appellant was injured in a 1993 motor vehicle accident and sought rehabilitation and attendant care benefits.

The arbitrator dismissed the claims, finding the appellant failed to establish that the accident materially contributed to her physical, cognitive, and psychological conditions, largely due to a lack of pre-accident medical records and reliable evidence.

On appeal, the appellant argued the arbitrator erred by admitting insurer medical reports without cross-examination and by misapplying the burden of proof.

The Director's Delegate dismissed the appeal, holding that the failure to cross-examine does not compel acceptance of an expert's report and that the burden of proving causation remained on the appellant.

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

In a pre-hearing dispute, the applicant requested that the insurer produce and pay for the clinical notes and records of doctors who performed medical examinations on the insurer's behalf.

The insurer agreed to produce the records but objected to paying for them.

The arbitrator ordered the insurer to pay for the production of the records, noting the consumer protection perspective of the Schedule, subject to the insurer's right to claim its expenses at the conclusion of the arbitration hearing.

The Appellant insurer brought a motion to stay an arbitration order that awarded the Respondent non-earner benefits, pending its appeal of that order.

The Director's Delegate reviewed the criteria for granting a stay, noting that stays of arbitration orders are exceptional under the Insurance Act.

Considering the long history of the matter, the Appellant's failure to comply with the order before seeking a stay, the lack of alleged hardship to the Appellant, and questions regarding the official status of the unsworn hearing transcripts relied upon, the Delegate found no basis to exercise discretion to grant a stay.

The motion was dismissed.

The applicant sought her expenses for an arbitration proceeding after successfully claiming ongoing income replacement benefits.

The insurer disputed the number of hours billed by the applicant's lawyer, particularly the bulk billing of 23.6 hours for 118 pieces of correspondence.

The arbitrator allowed half of the bulk-billed hours due to a lack of supporting evidence, but found the remaining hours reasonable.

Certain disbursements for medical records not produced in the arbitration were also deducted.

The arbitrator ordered the insurer to pay $11,514.50 for the applicant's legal fees, disbursements, and GST.

The insurer brought a motion for an order compelling the applicant to attend Insurer's Examinations with a psychiatrist, oncologist, and physiatrist under section 42 of the Statutory Accident Benefits Schedule.

The arbitrator dismissed the motion, finding no jurisdiction to order an insured to attend an examination.

Furthermore, the arbitrator held that the insurer's notice failed to provide sufficient particulars about the nature of the proposed examinations, depriving the applicant of the ability to give informed consent.