Dwain Carlton Burns

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

During a preliminary issue hearing, the applicant exhibited signs of mental difficulty, prompting the arbitrator to direct a hearing on his mental capacity to proceed.

The applicant brought a motion for interim expenses to retain counsel and undergo a capacity assessment.

The arbitrator granted the motion, awarding 5 hours of legal fees and up to $1,500 for a capacity assessment, finding that the applicant's mental difficulty constituted an extraordinary situation warranting interim expenses to ensure a fair hearing.

Each party was ordered to bear its own expenses for the motion.

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

In a previous decision, the insurer successfully defended the claim for income replacement benefits, while the applicant recovered a small amount for a functional capacity evaluation.

On the issue of expenses, the arbitrator found that both parties unnecessarily prolonged the hearing.

The applicant failed to produce hospital records on a timely basis, and the insurer's counsel conducted lengthy and unhelpful cross-examinations regarding the applicant's pre-existing psychiatric illness.

Consequently, the arbitrator ordered that each party bear their own expenses of the arbitration proceeding.

The appellant appealed a jury verdict finding her 90 per cent liable for a motor vehicle accident.

The jury concluded that the appellant was not paying attention and collided with the rear of the respondent's vehicle.

The Court of Appeal dismissed the appeal, holding that there was an evidentiary basis for the jury's findings and the verdict was not so plainly unreasonable and unjust that no reasonable jury could have reached it.

The insurer appealed an arbitrator's decision finding that the claimant suffered a catastrophic impairment under the Statutory Accident Benefits Schedule following a motor vehicle accident.

The arbitrator relied on Glasgow Coma Scale (GCS) scores of 9 or less taken within the first hour of the accident.

The insurer argued the scores were confounded by intubation, seizures, and facial injuries, and were not taken within a 'reasonable period of time'.

The Director's Delegate dismissed the appeal, finding no palpable and overriding error in the arbitrator's factual findings that the early scores validly reflected brain impairment and were taken within a reasonable time.

The applicant sought a variation or revocation of an earlier arbitration decision, arguing that the arbitrator mistakenly recorded the date the insurer terminated income replacement benefits as February 1, 2001, instead of February 1, 2002.

The arbitrator acknowledged the error but found it did not affect the substantive conclusion that the applicant's accident-related disability ended on August 28, 2001, after which any disability was due to a pre-existing psychiatric illness.

Because the insurer had already paid benefits beyond August 28, 2001, the original order requiring payment of benefits was revoked and the application for income replacement benefits was dismissed.

Each party was ordered to bear their own expenses for the variation application.

The defendants appealed a condition imposed by a motions judge on an order compelling the plaintiff to attend defence medical examinations.

The plaintiff, injured in a motor vehicle accident, had previously been examined by experts retained by the statutory accident benefits insurer.

The motions judge upheld the order for tort medical examinations but added a condition prohibiting the defendants from calling the accident benefits experts at trial.

The Divisional Court allowed the appeal and struck the condition, finding that the motions judge erred by interfering with the Master's discretion without finding an error in principle, and by preempting the trial judge's statutory discretion regarding the number of expert witnesses.

Liberty Mutual appealed an arbitration order requiring it to pay a loss of earning capacity benefit based on a pre-accident earning capacity of $31,000 and a residual earning capacity of zero.

The Director's Delegate upheld the finding of zero residual earning capacity, noting it was supported by evidence that the claimant could not work reliably or consistently.

However, the Delegate allowed the appeal regarding pre-accident earning capacity, finding the Arbitrator erred in law by failing to consider the credibility of the claimant's undocumented assertion that she was about to open a third gas station.

The issue of pre-accident earning capacity was remitted to the Arbitrator.

The appellants appealed a Master's order granting summary judgment in favour of the respondent defendants in a multi-vehicle accident case.

The Master had dismissed the claims against the respondents, finding no genuine issue for trial regarding their liability.

The Divisional Court allowed the appeal, holding that conflicting evidence regarding the number of impacts and the sequence of collisions raised genuine issues for trial that should not be resolved on a summary judgment motion.

The applicant was injured in a serious motor vehicle accident and received income replacement benefits (IRBs).

The insurer terminated IRBs after the applicant attempted a return to work but had to stop due to severe headaches and vomiting.

The insurer later reinstated benefits and paid arrears on the eve of the arbitration hearing.

The arbitrator found that the insurer unreasonably withheld benefits by ignoring the overwhelming medical evidence from treating practitioners and selectively reading its own experts' reports.

The arbitrator awarded a special award of $25,000, inclusive of compound interest, under s. 282(10) of the Insurance Act.

During an arbitration hearing for a special award under the Insurance Act, the applicant sought production of the insurer's adjusters' notes.

The insurer produced the notes but redacted certain entries, claiming solicitor-client privilege.

The applicant argued that solicitor-client privilege does not exist in a first-party claim until benefits are terminated, and that any privilege was implicitly waived by the insurer's reliance on its state of mind.

The arbitrator held that solicitor-client privilege can apply to communications with in-house counsel prior to the termination of benefits.

The arbitrator found that most of the redacted entries were protected by solicitor-client privilege and that the insurer had not implicitly waived the privilege merely because the applicant claimed a special award.

However, the arbitrator ordered the production of one entry authored by a claims person and a portion of another entry unrelated to reserves.