Eric Grossman

The applicant and respondent insurers were engaged in a priority dispute regarding statutory accident benefits.

Following the death of the original arbitrator, the parties could not agree on a substitute.

The applicant brought an application under the Arbitration Act, 1991 to appoint a new arbitrator.

The court appointed the applicant's proposed choice, the Honourable Douglas Cunningham, finding that the dispute involved novel legal arguments and issues of deflection, making an arbitrator with extensive judicial experience preferable to one with specialized insurance adjusting experience.

The plaintiff insurer brought a summary judgment motion seeking repayment of over $100,000 in income replacement benefits (IRBs) paid to the defendant insured.

The overpayments occurred because the insured received retroactive long-term disability and Canada Pension Plan benefits that should have been deducted from the IRBs.

The court found that the insurer failed to provide proper statutory notice for most of the overpayments, limiting its recovery to a 12-month period.

The court also held that while it had jurisdiction to order repayment of the overpayments, it lacked jurisdiction to vary the existing Financial Services Commission of Ontario (FSCO) consent order governing the ongoing IRB payments.

The insurer was awarded $11,150 without costs.

The appellant insurer appealed an arbitral award determining it was the priority insurer required to pay statutory accident benefits to a claimant.

The arbitrator found the claimant was principally dependent on her mother and stepfather, triggering coverage under the mother's policy.

The appellant argued the arbitrator erred in calculating the claimant's means and needs, specifically regarding earning capacity, the value of housekeeping services, and the use of government statistics versus individualized assessments.

The Superior Court of Justice dismissed the appeal, finding the arbitrator made no reviewable errors and correctly applied the dependency test.