David S. Wilson

The parties sought a determination of legal expenses following an appeal and cross-appeal regarding statutory accident benefits.

The insurer's appeals were dismissed, and the insured's cross-appeals were also dismissed.

The Director's Delegate awarded the insured his legal expenses for the insurer's appeals, fixed at $7,514.52, but declined to award any costs for the cross-appeals, noting that the insurer was uniformly unsuccessful in its appeals and the insured did not seek costs for the cross-appeals.

Following a successful arbitration regarding statutory accident benefits, the applicant sought his legal expenses.

The insurer did not dispute entitlement or the hourly rate but challenged the number of hours claimed for preparation and correspondence.

The arbitrator found the claimed hours reasonable, noting the complexity of the case, the insurer's late concessions, and the insurer's failure to disclose its own counsel's docketed hours.

The insurer was ordered to pay the applicant's expenses in the amount of $42,456.87.

The Applicant sought legal expenses following an arbitration hearing regarding statutory accident benefits where he was partially successful.

The Insurer argued each party should bear their own costs due to divided success and an Offer to Settle served shortly before the hearing.

The Arbitrator found the Applicant was entitled to his reasonable legal expenses up to the day before the hearing, 80% of his expenses for the hearing itself, and his post-hearing expenses, as he achieved a significant degree of success and beat the Insurer's Offer to Settle.

The Applicant was awarded $32,044.84 in total legal expenses and disbursements.

The applicant sought statutory accident benefits following a motor vehicle accident.

The parties settled the substantive issues prior to the arbitration hearing, agreeing that the applicant was entitled to reasonable legal expenses.

The arbitrator assessed the applicant's legal expenses, reducing the claimed hours based on a global assessment approach, and fixed the total assessable legal expenses at $16,464.61.

The applicant sought statutory accident benefits following two motor vehicle accidents.

In a preliminary hearing, the arbitrator determined three issues: whether the insurer could dispute a Catastrophic Impairment Designated Assessment Centre (CAT DAC) report after seemingly accepting it on an OCF-9 form, whether the insurer could rely on surveillance evidence despite late production of investigator notes, and whether the insurer could rely on certain medical reports served late.

The arbitrator held that, following the Court of Appeal's decision in Liberty Mutual, the insurer was entitled to dispute the CAT DAC findings at arbitration.

The arbitrator also allowed the surveillance evidence and medical reports, finding no substantial prejudice to the applicant.

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

The parties disputed whether long term disability benefits received by the applicant were deductible from his income replacement benefits, and whether he should be classified as employed or self-employed for calculating his income replacement benefits.

The arbitrator found that the long term disability benefits were deductible under section 7(1)1.i of the Schedule, as they were weekly payments for loss of income under an income continuation plan.

The arbitrator also determined that the applicant, who worked as a mortgage agent in addition to his employment at Canada Post, operated as a sole proprietorship and should be treated as self-employed for the purpose of calculating his income replacement benefits.

The applicant was injured in a motor vehicle accident and sought a catastrophic impairment designation under the Statutory Accident Benefits Schedule.

The insurer sought production of the applicant's long-term disability file, property damage documentation, motor vehicle accident report, and employment file.

The applicant consented to producing the long-term disability file.

The arbitrator denied the insurer's request for the remaining documents, finding that they were not relevant to determining whether the applicant met the test for catastrophic impairment due to a mental or behavioural disorder.

The insurer appealed arbitration decisions that dismissed its motions to compel the insured to attend insurer examinations and ordered it to pay a special award for unreasonably delaying benefits.

The insured cross-appealed the denial of a special award for other periods of delay.

The Director's Delegate dismissed both appeals.

The Delegate found that the arbitrators did not err in law in refusing the insurer examinations, as the insurer had delayed its requests until after the arbitration process was well underway.

Furthermore, the insurer's concession of entitlement during the hearing precluded a finding that it was denied a fair hearing.

The Delegate upheld the special award, finding no basis to interfere with the arbitrator's assessment of the insurer's unreasonable conduct, and agreed that the insurer's delay while seeking a stay of an interim order was not unreasonable.

Following the settlement of a statutory accident benefits dispute, the parties were unable to agree on the quantum of expenses payable by the insurer.

The applicants sought $32,034.60 in fees and disbursements.

The insurer disputed the time claimed by a second lawyer retained for the hearing, the time claimed for correspondence, and the fees charged for expert reports.

The arbitrator found that retaining alternate counsel due to a scheduling conflict was reasonable and did not result in significant duplication of time.

The arbitrator also found the correspondence time and expert report fees to be reasonable, noting that the FSCO Professional Services Guideline rates do not strictly apply to medical-legal reports prepared for arbitration.

The applicants were awarded their full claimed expenses of $32,034.60.

The applicant was injured in a motor vehicle accident and sought ongoing income replacement benefits after the 104-week mark.

The insurer had reinstated benefits prior to the pre-hearing but did not concede entitlement.

The arbitrator found that the applicant suffered a complete inability to engage in any suitable employment due to chronic pain, reduced endurance, and inability to sit, stand, or keyboard for significant periods.

The applicant was awarded ongoing income replacement benefits and her arbitration expenses.

Following an arbitration decision awarding the applicant income replacement benefits, the arbitrator considered claims for pre-judgment interest and a special award.

The arbitrator found the applicant entitled to interest at 2% per month compounded monthly on the overdue benefits.

Regarding the special award, the arbitrator determined there was jurisdiction to consider delays in payments made prior to the arbitration hearing.

A special award of $625 was ordered for an initial unreasonable delay in 2004, but claims for special awards for subsequent periods were dismissed as the insurer's actions were not found to be unreasonable.

The insurer brought an application to vary a consent order that required it to pay ongoing income replacement benefits to the insured.

The insurer argued that the change in the test for entitlement to income replacement benefits at the 104-week mark constituted a material change in circumstances justifying a variation of the order.

The arbitrator dismissed the application, finding that the change in the test for entitlement, in isolation, did not constitute a material change in circumstances, especially since the insurer had consented to the order shortly before the 104-week mark without insisting on a time limit and later conceded that the insured met the post-104-week test.

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

Following a consent order requiring the insurer to pay ongoing benefits, the insurer unilaterally terminated the benefits based on new medical information, arguing the test for entitlement had changed at the 104-week mark.

The arbitrator found that the insurer acted unreasonably by terminating benefits in contravention of the consent order and section 287 of the Insurance Act, which requires an insurer to continue payments until a variation order is obtained.

The arbitrator ordered the insurer to pay a special award of $6,000 for unreasonably withholding payments.

The applicant sought expenses following his complete success in defending against the insurer's application to vary or revoke an arbitration order regarding income replacement benefits.

The arbitrator found the applicant was entitled to expenses based on his degree of success.

The arbitrator allowed the claimed counsel fee of $150 per hour for 79.7 hours, noting the duplicated preparation time due to an adjournment requested by the insurer and the late narrowing of issues.

However, the arbitrator disallowed the cost of three medical reports obtained before the insurer filed its application, finding they were not incurred in furtherance of the application.

Total expenses of $24,314.82 were awarded to the applicant.

The insurer brought a motion to stay the arbitration proceeding until the applicant attended an insurer medical examination (IME).

The insurer argued that procedural fairness required the stay because the applicant had recently served several medical reports.

The arbitrator dismissed the motion, finding that the insurer had not made early arrangements for the IME and had changed its defence strategy shortly before the hearing.

Furthermore, the arbitrator held that there is no inherent or statutory jurisdiction to order an insured to attend an IME or to stay a proceeding for failure to attend, as the insurer's only right to an examination is under section 42 of the Statutory Accident Benefits Schedule, which provides its own remedies for non-compliance.

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

The insurer did not dispute entitlement but challenged the quantum, specifically the hourly rate, number of hours, and certain disbursements.

The arbitrator found the claimed hourly rate of $150 and the 124.2 hours of counsel time to be reasonable.

The arbitrator allowed most disbursements but reduced an expert report fee to the $1,500 maximum permitted by the Dispute Resolution Practice Code.

The applicant was awarded $33,737.73 in expenses.

The applicant brought a motion for interim statutory accident benefits, which was denied.

The insurer subsequently sought its expenses for the motion.

The arbitrator found that the insurer was completely successful on the motion and awarded expenses in the amount of $2,449.68, payable by the applicant in any event of the cause.

However, enforcement of the order was delayed until the final determination of the applicant's main arbitration proceeding.

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

The parties entered into Minutes of Settlement to resolve the arbitration proceeding.

Subsequently, the applicant attempted to reopen discussions regarding a special award, arguing it was not explicitly included in the settlement.

The insurer maintained that the Minutes resolved the entire arbitration.

The arbitrator found that the Minutes were clear and unambiguous, and that the parties intended to settle all issues pending in the arbitration proceeding, including the claim for a special award.

The arbitrator ordered that all issues in the arbitration proceeding had been settled.

The insurer appealed an arbitration decision awarding the respondent ongoing caregiver benefits beyond the 104-week mark.

The insurer argued the arbitrator erred in law by misinterpreting the 'substantially all' requirement of the 'complete inability to carry on a normal life' test under section 2(4) of the Statutory Accident Benefits Schedule.

The Director's Delegate dismissed the appeal, finding that the arbitrator correctly understood and applied the test to the facts, concluding that the respondent's physical and psychological impairments prevented her from engaging in virtually all of her pre-accident activities.

The applicant was completely successful on a preliminary motion regarding post-104 week examinations.

The arbitrator assessed the applicant's expenses under s. 282(11) of the Insurance Act and s. 12 of O. Reg. 664.

Finding the applicant's claim for 10.4 hours of legal work reasonable, the arbitrator awarded expenses of $1,653.60 inclusive of GST.