Grant R. Dow

The defendant brought a motion seeking to transfer the venue of a personal injury action from Barrie to Sudbury following a motorcycle accident that occurred in Sudbury.

The moving party argued that most lay witnesses and the plaintiff resided in the Sudbury area, while the plaintiff resisted the transfer citing potential delay, expert witnesses located in Toronto, and counsel’s office in Barrie.

Applying Rule 13.1.02(2)(b) of the Rules of Civil Procedure and the applicable Practice Direction, the court conducted a holistic assessment of factors including location of events, witnesses, convenience, costs, and availability of court resources.

While several factors favoured Sudbury, the court held that the moving party failed to demonstrate that Sudbury was “significantly better” than the plaintiff’s chosen venue.

The court emphasized the plaintiff’s right under the Rules to select the trial venue and declined to interfere with that choice.

Following a jury verdict in a pedestrian–motor vehicle accident action, the court was asked to determine the quantum and apportionment of the successful plaintiff’s costs.

The uninsured driver was found 70 per cent liable, a commercial host 5 per cent liable, and the plaintiff 25 per cent contributorily negligent.

The plaintiff’s insurer defended the action under uninsured and underinsured coverage.

The court exercised its discretion under s. 131 of the Courts of Justice Act and rule 57.01 of the Rules of Civil Procedure to fix costs at $635,500 on a partial indemnity basis and ordered that the costs be borne equally by the commercial host and the insurer.

The court held that strict apportionment based on liability percentages was inappropriate in the circumstances and that fairness justified an equal allocation.

The insurer, having successfully appealed an arbitrator's decision finding a binding settlement, sought its appeal expenses.

The parties agreed the insurer was entitled to expenses but disputed the quantum and the applicable tax rate.

The Director's Delegate awarded the insurer $3,000 in legal expenses, inclusive of disbursements and taxes, noting the amount was close to the historic norm for successful insurers and that a global assessment rendered the GST versus HST issue moot.

The appellant was injured in a motor vehicle accident and applied for non-earner benefits.

The insurer denied the claim based on orthopaedic and neurological independent medical examinations, but failed to provide the neurological report with its denial notice.

The arbitrator held that the failure to provide the report did not invalidate the denial and that the appellant's claim was statute-barred by the two-year limitation period.

On appeal, the Director's Delegate found that the insurer's failure to provide the medical report upon which it relied meant the denial lacked sufficient reasons to permit the insured to decide whether to challenge it.

The limitation period did not commence until the report was finally provided, meaning the appellant's application for mediation was timely.

The applicant was injured in a motor vehicle accident and applied for a non-earner benefit, which the insurer denied.

The applicant applied for mediation more than two years after the denial.

The insurer raised a preliminary issue that the application was time-barred under s. 281(5) of the Insurance Act and s. 51(1) of the Schedule.

The applicant argued the denial was invalid because the insurer failed to provide the medical assessment report and failed to comply with the refusal provisions under s. 37.

The arbitrator found that the insurer's refusal was clear and unequivocal, meeting the legal test, despite the procedural failures.

The applicant was therefore precluded from proceeding to arbitration due to the expired limitation period.

The applicant sought an order requiring the insurer to produce its complete file created after the date she filed her Application for Mediation.

The insurer opposed, arguing the file was protected by litigation privilege and irrelevant as claims handling was complete.

The arbitrator dismissed the motion, finding the applicant failed to establish the relevance of post-mediation documents and upholding the Commission's general presumption that documents created after an Application for Mediation are prepared for the dominant purpose of litigation.

The insurer appealed an arbitrator's decision finding that the parties had reached a binding settlement of $17,000 for non-earner benefits following mediation.

The Director's Delegate allowed the appeal and rescinded the arbitrator's order, finding that the arbitrator erred in law by reversing the onus of proof, ignoring post-mediation conduct, and concluding there was a meeting of the minds despite a discrepancy in the settlement amount discussed by the parties.

The matter of arbitration expenses was remitted for reconsideration.

Following an arbitration decision where the applicant achieved divided success regarding statutory accident benefits, both parties sought their expenses.

The arbitrator reviewed the criteria under section 12 of Ontario Regulation 664, noting that the 'degree of success' was the only relevant factor.

Finding that both parties succeeded and failed in roughly equivalent measures, the arbitrator ordered each party to bear their own expenses.

The representative for the insured appealed an arbitration order requiring him to personally pay the insurer's expenses.

The appeal was dismissed.

The insurer sought its appeal expenses of $3,918.77 against the representative personally.

The representative argued the expenses should be limited to Small Claims Court levels.

The Director's Delegate rejected this argument, finding that arbitration expenses are governed by the Dispute Resolution Practice Code and the expense regulation, not Small Claims Court rules.

The Director's Delegate ordered the representative to personally pay the insurer's appeal expenses fixed at $3,300.

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

The insurer issued a notice of stoppage, prompting the appellant to request a designated assessment centre (DAC) evaluation.

The insurer was required to continue paying benefits pending the DAC report.

After a negative DAC report, the insurer issued a final notice stopping benefits.

The arbitrator initially ruled that the two-year limitation period began with the first notice of stoppage.

On appeal, the Director's Delegate held that the limitation period did not begin to run until the insurer provided notice after the negative DAC report, as the insurer was statutorily required to continue payments in the interim.

The appeal was allowed, and the appellant was permitted to proceed to arbitration.

The applicant sought non-earner benefits following a motor vehicle accident.

During mediation, the insurer offered $17,000 for a full and final settlement.

The applicant accepted the offer two months after the mediator issued a report indicating the mediation had failed.

The insurer argued the offer had expired by operation of law upon the issuance of the mediator's report.

The arbitrator found that the offer remained open for a reasonable time and was validly accepted, concluding that the parties had entered into a binding settlement under subsection 9.1(1) of the Settlement Regulation.

The insurer was ordered to pay the settlement amount and the applicant's expenses.

The Appellant insurer brought a motion to stay an arbitration order that awarded the Respondent non-earner benefits, pending its appeal of that order.

The Director's Delegate reviewed the criteria for granting a stay, noting that stays of arbitration orders are exceptional under the Insurance Act.

Considering the long history of the matter, the Appellant's failure to comply with the order before seeking a stay, the lack of alleged hardship to the Appellant, and questions regarding the official status of the unsworn hearing transcripts relied upon, the Delegate found no basis to exercise discretion to grant a stay.

The motion was dismissed.

The representative of an insured appealed an arbitrator's decision ordering him to personally pay the insurer's fixed expenses of $1,566 for costs thrown away prior to the withdrawal of the insured's application for arbitration.

The Director's Delegate dismissed the appeal, finding no error in the arbitrator's conclusion that the representative caused expenses to be wasted by unreasonable delay under s. 282(11.2) of the Insurance Act by failing to withdraw the claim when it was apparent that the underlying dispute had been resolved.

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 appellant appealed a jury's damage assessment and several evidentiary and procedural rulings by the trial judge, including the handling of an improper question during cross-examination, the exclusion of employment records, and the denial of a request for an assignment of long-term disability benefits.

The Court of Appeal dismissed the appeal, finding the jury's verdict was not perverse, the trial judge's curative instruction was sufficient, and the employment records were properly excluded.

The court dismissed the ground regarding the assignment of benefits without prejudice to the appellant bringing a further motion on proper material.

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

The insurer issued a notice to stop paying benefits, but continued payments pending a Designated Assessment Centre (DAC) assessment.

The applicant filed for arbitration more than two years after the initial stoppage notice.

The arbitrator held that the two-year limitation period under s. 281(5) of the Insurance Act and s. 51(1) of the Schedule commenced upon the insurer's initial refusal to pay, and was not suspended by the DAC assessment or the continuation of payments.

The application was therefore statute-barred.

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

The insurer paid the treatment provider directly, but the applicant's agent proceeded with an arbitration application.

The insurer sought costs against the agent personally under section 282(11.2) of the Insurance Act for causing expenses to be incurred without reasonable cause.

The arbitrator found that the agent ignored communications regarding the settlement and delayed withdrawing the application, constituting an abuse of process.

The agent was ordered to personally pay the insurer's fixed expenses of $1,566.

The insurer requested four medical and vocational examinations to assess the applicant's entitlement to post-104 week income replacement benefits.

The arbitrator found that the request for a functional abilities evaluation was reasonable, as it would provide relevant evidence about the applicant's physical ability to work.

However, the requests for an orthopaedic examination, a psycho-vocational assessment, and a 2-day situational assessment were dismissed.

The arbitrator held that the psycho-vocational and situational assessments constituted unreasonable invasions of privacy, particularly because the applicant had not put her psychological ability to work in issue, and the situational assessment raised potential civil liberties concerns.

The applicant sought statutory accident benefits for medical treatment following a motor vehicle accident.

The insurer denied the claims, arguing the treatment plan was submitted late and the treatment was not reasonable and necessary.

The arbitrator found that the applicant was precluded from arbitrating the treatment plan because it was submitted beyond the 30-day limit.

In the alternative, the arbitrator relied on insurer examinations and a DAC assessment to conclude the treatment was not reasonable and necessary.

The application was dismissed.

The applicant sought to withdraw his application for arbitration regarding statutory accident benefits after the insurer paid the outstanding treatment provider accounts.

The insurer opposed an unconditional withdrawal, seeking its expenses.

The arbitrator allowed the withdrawal but ordered expenses of $1,566 payable to the insurer, finding that the applicant's representative unreasonably delayed in responding to the insurer's notification of settlement, which unnecessarily prolonged the proceeding.