Dr. E. McKinnon

The applicant insurer sought judicial review of a Director's Delegate decision upholding an arbitrator's award for private school tuition and a special award for unreasonably withholding benefits under the Statutory Accident Benefits Schedule.

The Divisional Court found the Delegate's broad interpretation of 'incurred' and 'undertaken' under s. 15 of SABS was reasonable.

The court also upheld the finding that the insurer unreasonably denied benefits by relying on flawed expert reports and ignoring the insured's future needs.

The court fixed the quantum of the special award at $20,000.

The appellant insurer appealed an arbitrator's decision granting a special award to the respondent for unreasonably withholding payments for rehabilitation support worker services and private school tuition.

The Director's Delegate confirmed the appeal decision, finding that there was an adequate evidentiary foundation to support the arbitrator's finding that the insurer acted unreasonably.

The insurer had failed to consider new information, including a DVD with statements from the respondent's rehabilitation team, and relied on overlapping and preliminary assessments to deny benefits.

The insurer appealed an arbitrator's decision awarding the insured, a minor who sustained a catastrophic brain injury, private school tuition as a rehabilitation benefit and a $28,000 special award for unreasonably withholding benefits.

The Director's Delegate upheld the tuition award, finding no error in the arbitrator's conclusion that the expense was reasonable, necessary, and 'incurred' under the Schedule despite not being paid upfront.

The Delegate also upheld the entitlement to a special award, noting the insurer unreasonably relied on preliminary and flawed expert reports to deny benefits.

However, the Delegate set aside the quantum of the special award and remitted it to arbitration, finding the arbitrator failed to provide sufficient reasons explaining how the $28,000 figure was calculated.