Frank A. Benedetto

The insurer appealed an arbitrator's decision allowing the insured to rescind a 2001 settlement of statutory accident benefits and proceed with arbitration in 2013.

The Director's Delegate upheld the arbitrator's finding that the settlement was voidable because the insurer failed to comply with the disclosure requirements of the Settlement Regulation, specifically regarding the commuted value of benefits and maximum potential benefits.

Furthermore, the insured's claim was not statute-barred because the insurer's original refusal of benefits did not adequately inform her of the dispute resolution process, rendering the refusal invalid to trigger the limitation period under the Insurance Act.

The Limitations Act was also found inapplicable to the statutory right of rescission.

The moving parties sought partial summary judgment declaring that a Vespa involved in a motor vehicle accident was insured under the "newly acquired automobile" provision of the Standard Automobile Policy (OAP 1).

The court examined whether the insured satisfied the preconditions of s. 2.2.1, including whether the insurer insured all automobiles owned by the insured and whether any additional premium was paid.

The evidence showed the insured owned other automobiles, including a vehicle insured abroad and two motorcycles, that were not insured by the insurer.

The court held these vehicles fell within the statutory definition of "automobile", meaning the insured did not meet the requirement that all owned automobiles be insured by the same insurer.

As a result, the Vespa was not insured under the OAP provision and the statutory bar in s. 267.6(1) of the Insurance Act prevented the insured from pursuing damages against the other driver.

The appellant insurer appealed an arbitrator's preliminary order requiring the production of reserve information, surveillance reports, and investigative reports.

On appeal, the respondent sought to introduce fresh evidence consisting of two letters that were not before the arbitrator.

The Director's Delegate applied the Palmer test and refused leave to file the fresh evidence, finding that the letters could have been adduced at the motion with due diligence and were not determinative of the issues.

The respondent was injured in a motor vehicle accident and commenced a court action for accident benefits within the limitation period.

Years later, she commenced an arbitration at the Financial Services Commission of Ontario (FSCO) for catastrophic impairment benefits.

The FSCO director's delegate ruled that under s. 281.1(1) of the Insurance Act, a claimant must choose a forum within the two-year limitation period and cannot switch forums after it expires.

The Divisional Court found this decision unreasonable.

The Court of Appeal allowed the insurer's appeal, holding that the delegate's interpretation was reasonable and did not place the respondent in an impossible position, as she could still pursue her catastrophic impairment claim within the existing court action.

Two first party insurers paid statutory accident benefits to their insureds and made requests for loss transfer from second party insurers.

The second party insurers refused to pay, and the first party insurers initiated arbitration proceedings.

The second party insurers argued the claims were barred by the Limitations Act, 2002.

The Court of Appeal held that the two-year limitation period for loss transfer claims begins to run the day after the first party insurer makes a demand for loss transfer, not from the date the second party insurer definitively refuses to indemnify.

The appeals by the first party insurers were dismissed.

The applicant was injured in a motor vehicle accident and commenced a court action for accident benefits within the limitation period.

She later applied for arbitration regarding catastrophic impairment.

The priority insurer successfully moved to have the issues heard together in arbitration, but then argued the income replacement benefits claim was time-barred from being added to the arbitration.

The arbitrator ruled the claim was not time-barred, but the director's delegate reversed this decision.

On judicial review, the Divisional Court held that commencing a proceeding within two years of the refusal to pay fully satisfies the limitation requirement, even if the claim is subsequently added to a later proceeding.

The application for judicial review was granted.

The applicant applied for statutory accident benefits following a motor vehicle accident.

The insurer denied benefits, and the applicant applied for arbitration at the Financial Services Commission of Ontario.

The insurer brought a preliminary motion to dismiss the arbitration on the basis that the applicant had an ongoing civil action in the Superior Court of Justice involving substantially the same issues.

The arbitrator applied the principles from King and Royal Insurance Company of Canada, finding that the civil action was broader in scope, there was no impediment to the court dealing with the accident benefits claims, and permitting the arbitration to proceed would unduly duplicate proceedings.

The application for arbitration was dismissed.

The insurer brought a pre-hearing motion seeking a stay of the arbitration until the insured attended three requested medical assessments under section 42 of the Statutory Accident Benefits Schedule.

The insured had refused to attend the assessments, which were requested approximately two months prior to the scheduled arbitration hearing.

The arbitrator found that the assessments were not authorized by section 42, as they were requested long after the issue of post-104-week income replacement benefits had crystallized.

The arbitrator concluded that the assessments were sought to buttress the insurer's case rather than to determine entitlement, and that the late request would cause prejudice to the insured.

The motion for a stay was dismissed.

The insurer sought a stay of arbitration under section 50(b) of the Statutory Accident Benefits Schedule until the applicant attended a psychiatric examination under section 42.

The applicant argued the examination was unreasonable because the insurer had already terminated her income replacement benefits based on physical assessments and had acted in bad faith.

The arbitrator found that the applicant had placed her psychological condition in issue by submitting a psychologist's report indicating she was disabled due to psychological impairments.

The arbitrator held that the requested examination was reasonably required and ordered the applicant to attend the assessment before proceeding to arbitration on her income replacement benefits claim.

Following a preliminary issue hearing where the applicant was precluded from proceeding to arbitration due to late notice of his intention to apply for statutory accident benefits, the insurer sought its arbitration expenses.

The arbitrator found that the applicant's conduct, including failing to attend the hearing and delaying the insurer's ability to assess his medical requirements, constituted an abuse of process.

The insurer was awarded its reasonable expenses of $1,473.90.

The applicant, who was a minor at the time, filed an Application for Arbitration for statutory accident benefits.

The insurer raised a preliminary issue arguing the application was a nullity because the applicant lacked capacity to contract for legal services and failed to appoint a litigation guardian under the Dispute Resolution Practice Code.

The arbitrator held that the retainer and application were voidable, not void ab initio, as they were for the applicant's benefit.

The failure to appoint a litigation guardian was a procedural defect that did not invalidate the proceeding.

The applicant was granted time to ratify the application upon reaching the age of majority.

The applicant was injured in a motor vehicle accident but did not notify his insurer of his intention to claim statutory accident benefits until nine months later.

The insurer refused to pay for medical expenses on the basis of late notice.

The applicant argued he had an innate fear of medical professionals and hoped his injuries would subside.

The arbitrator found the applicant's explanation lacked credibility due to inconsistencies in the evidence and his failure to attend the hearing.

The arbitrator concluded the applicant did not have a reasonable explanation for the delay and is precluded from proceeding to arbitration.

The respondent's counsel filed an application for arbitration without knowing his client had died a few days earlier.

The insurer argued the application was a nullity.

The arbitrator allowed the application to proceed, relying on the doctrine of relation back and Rule 9.03(3) of the Rules of Civil Procedure.

On appeal, the Director of Arbitrations held that neither the doctrine of relation back nor the Rules of Civil Procedure applied to the arbitration.

However, the Director concluded that the Dispute Resolution Practice Code provided sufficient authority to correct the defect and allowed the arbitration to proceed, provided the estate trustee confirmed his involvement.

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

After the insurer terminated benefits, an application for arbitration was filed on his behalf.

However, the applicant had died prior to the application being issued, and an estate trustee had not yet been appointed.

The insurer argued the application was a nullity.

The arbitrator held that the doctrine of relation back applied to contractual claims for insurance benefits, allowing the subsequently appointed estate trustee to validate the application.

Alternatively, Rule 9.03 of the Rules of Civil Procedure applied to save the proceeding.

The preliminary issue was resolved in favour of the estate, allowing the arbitration to proceed.

The insurer sought to appeal an interim arbitration order requiring it to produce notes and memoranda concerning its decision to deny occupational therapy benefits.

The insured had claimed a special award for unreasonable withholding of benefits.

The Director's Delegate denied leave to appeal, noting that appeals from interim orders are generally prohibited under Rule 46.2 of the Dispute Resolution Practice Code to avoid delay and minimize costs.

The Delegate found no clear error or compelling reason to intrude on the arbitration process, as the production order was limited in scope and relevant to the specific claim.