Grant R. Dow

Following a successful arbitration for statutory accident benefits, the applicant sought her expenses.

The insurer challenged the entitlement and quantum, arguing the applicant unnecessarily prolonged the proceeding through lengthy cross-examinations and objected to fees for outside counsel, pre-arbitration mediation, and GST on reports.

The arbitrator found the applicant's cross-examinations were effective and necessary, allowed the use of outside counsel at the requested rate, and confirmed GST is payable on expert reports.

The arbitrator awarded the applicant $39,058.98 in expenses.

The plaintiff was injured in a motor vehicle accident in Ohio and subsequently received Statutory Accident Benefits in Ontario.

The plaintiff brought an action in Ontario against the defendants for damages.

The defendants appealed a motion judge's decision that the substantive law of Ohio applied, arguing that the Insurance Act modified the common law choice of law rule and that the plaintiff's receipt of Ontario benefits precluded an Ohio tort claim.

The Court of Appeal dismissed the appeal, holding that the Insurance Act does not alter the common law rule favouring the law of the place where the tort occurred, and the receipt of benefits does not affect the choice of law analysis.

The applicant sought to reopen an arbitration hearing after the conclusion of evidence and submissions, but prior to the issuance of the decision, to present fresh evidence and submissions based on the recent Supreme Court of Canada decision in Smith v. Cooperators.

The arbitrator dismissed the motion, finding that the applicant failed to demonstrate exceptional or extraordinary circumstances justifying the reopening of the hearing.

The arbitrator noted that the new issue could have been raised earlier and that reopening the hearing would cause prejudice, delay, and extra expense.

The plaintiff appealed a jury verdict dismissing her action arising from a school fight involving her son.

The jury found the defendant acted in self-defence, the fight was consensual, and the plaintiff suffered no damages.

The plaintiff argued the trial judge erred by asking the jury to clarify a potentially inconsistent answer regarding apportionment of fault instead of declaring a mistrial.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's procedure, which successfully removed any ambiguity.

The court also upheld the jury's factual findings, the trial judge's evidentiary rulings regarding Young Offenders Act transcripts, and the costs award.

The applicant was injured in a motor vehicle accident and sought payment for medical benefits and assessment costs from his insurer, related to treatments at a clinic.

The insurer disputed the amounts billed, arguing they were excessive and did not reflect the actual treatments provided.

The arbitrator found the applicant's evidence unreliable and noted the clinic's failure to produce key documents.

The arbitrator largely accepted the insurer's position on the appropriate fees for the services rendered, awarding a reduced amount for massage therapy, adhesive pads, and one reassessment, while denying the costs of an in-home assessment and other reports.

Both parties' claims for arbitration expenses were dismissed.

The insurer moved to stay the applicant's arbitration hearing on the basis that she refused to attend the insurer's health care and vocational examinations.

The examinations were scheduled shortly before the hearing, and the resulting reports would not have been served within the 30-day disclosure period required by the Dispute Resolution Practice Code.

The arbitrator found that the late delivery of the reports would prejudice the applicant's ability to prepare for the hearing.

The insurer's request for the examinations was deemed unreasonable, and the motion to stay the arbitration was dismissed.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them at the 104-week mark, asserting she could return to work in alternative occupations.

The applicant brought a motion for interim benefits pending the full arbitration hearing.

The arbitrator reviewed the standard for interim benefits, noting it requires establishing a prima facie case and urgency.

The arbitrator found that the applicant's entitlement raised difficult questions of law regarding the "complete inability" test that should be determined at a full hearing.

Furthermore, the applicant failed to establish sufficient urgency, as the hearing was scheduled to begin in three months.

The motion for interim benefits was dismissed.

The appellant appealed a trial judgment, arguing the trial was unfair due to the participation of counsel for a settling defendant under a Mary Carter agreement, and that there was no negligence in leaving a trailer parked on the roadway.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's handling of the extra counsel and upholding the finding of negligence based on the foreseeable danger of accumulated sand and gravel near the parked trailer.

The Insurer requested the dismissal of the arbitration proceeding because the Applicant failed to meet undertakings.

The Applicant, having retained a new representative just days before the hearing, requested an adjournment.

The Arbitrator declined to dismiss the proceeding, finding it too drastic a remedy, but granted the adjournment peremptory to the Applicant.

The Arbitrator awarded the Insurer $1,000 in costs thrown away due to the late adjournment request and the Applicant's failure to comply with productions, and imposed strict timelines for future productions and expert reports.

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

The insurer refused payment, and the applicant filed an application for arbitration within the two-year limitation period.

However, the application was filed on an outdated form.

The Commission mistakenly notified the applicant's former counsel of the defect instead of his current counsel, causing a delay in filing the corrected form until after the limitation period expired.

The arbitrator held that the initial filing within the limitation period was sufficient to start the process, and the defect in form did not invalidate the proceeding.

The applicant was permitted to proceed to arbitration.

Following an arbitration decision regarding statutory accident benefits where the applicant was only successful in recovering $585 for an occupational therapy assessment, both parties sought their expenses of the proceeding.

The arbitrator considered the criteria under Rule 73.2 of the Dispute Resolution Practice Code.

Although the insurer had made an offer to settle that exceeded the applicant's recovery, the offer required a full and final release of all claims, which the arbitrator found to be a significant impediment to awarding expenses against the insured person.

Taking into account systemic considerations designed to facilitate access to speedy adjudication, the arbitrator ordered that each party bear its own expenses.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits, including caregiver benefits, housekeeping expenses, and the cost of an occupational therapy assessment.

The insurer denied the claims.

At arbitration, the arbitrator found that the applicant did not meet the "substantial inability" test for caregiver or housekeeping benefits, as she had returned to work and caregiving shortly after the accident with only minor residual complaints.

However, the arbitrator ordered the insurer to pay for the occupational therapy assessment, finding it was a reasonable expense and not subject to the conflict of interest disclosure provisions of section 38 of the Schedule.

The applicant's claim for a special award was dismissed.

The applicant was injured in a motor vehicle accident and received statutory accident benefits until the insurer terminated them in March 1992.

The insurer brought a preliminary issue motion arguing the applicant's March 1995 application for arbitration was barred by the two-year limitation period under s. 281(5) of the Insurance Act.

The arbitrator found the insurer had provided clear, unequivocal written notice of its refusal to pay further benefits by September 1992.

As the application was filed more than two years after this refusal, it was statute-barred.

The arbitrator declined to order the applicant to refund the insurer's $2,000 assessment fee, finding the applicant was confused by the process rather than acting frivolously.

The applicant was injured in a motor vehicle accident and received weekly statutory accident benefits from the insurer as a homemaker under section 13 of the Schedule.

The insurer terminated benefits on the basis that the applicant was fit to resume her household duties.

The arbitrator found that the applicant was primarily a homemaker at the time of the accident, but concluded based on medical records, functional abilities evaluations, and surveillance that she no longer suffered a substantial inability to perform her essential daily tasks.

The application for ongoing weekly benefits and a special award was dismissed, though the applicant was awarded her arbitration expenses.