Ian D. Kirby

The applicant was injured in an ATV accident 27 days after purchasing the vehicle, but only one day after taking physical possession of it.

He applied for an income replacement benefit, which the insurer denied on the basis that he was operating an uninsured vehicle.

The Tribunal held that 'delivery' under the standard automobile policy means constructive possession, which occurred on the date of purchase when the applicant had authority to determine where the ATV would go.

Because the applicant failed to notify the insurer within 14 days of constructive possession, the ATV was uninsured.

The Tribunal further found the applicant did not reasonably believe the ATV was insured, precluding him from receiving benefits under s. 31(1)(a)(i) of the Schedule.

The Applicant sought expenses following a successful arbitration for statutory accident benefits.

The arbitrator awarded $139,851.68 in expenses, applying the Dispute Resolution Practice Code and Expense Regulation to cap certain expert disbursements and applying a 4:1 preparation-to-hearing ratio for legal fees.

The arbitrator also held that he lacked jurisdiction to reopen the hearing to address the calculation of interest, as the previous arbitrator was functus officio after issuing the final order.

The applicant sought arbitration for a catastrophic impairment determination and medical benefits following a motor vehicle accident.

The insurer raised preliminary issues, arguing the applicant failed to attend and submit to a psychiatric insurer examination and that her claims were barred by issue estoppel due to a previous arbitral decision.

The arbitrator found the applicant's behaviour at the examination, while challenging, did not amount to a failure to attend and submit, as the examination was abruptly terminated by the assessor.

The arbitrator also declined to apply issue estoppel, noting catastrophic impairment was not decided in the previous proceeding.

The issue of res judicata for specific medical benefits was deferred to the hearing arbitrator.

The applicant was awarded her expenses for the preliminary hearing.

The Applicant sought non-earner benefits following a 2002 motor vehicle accident.

The Insurer raised a preliminary issue that the claim was statute-barred under the two-year limitation period in s. 281.1(1) of the Insurance Act and s. 51(1) of the Schedule.

The Arbitrator found that the Insurer's Explanation of Benefits did not provide a clear and unequivocal denial of non-earner benefits, nor did it include the required notice of the dispute resolution process as mandated by Smith v. Co-operators.

Consequently, the limitation period was never triggered, and the Applicant was not precluded from proceeding to arbitration.

The appellant, a dentist, was injured in a motor vehicle accident and claimed damages for future income loss, arguing her injuries prevented full-time clinical practice.

The jury awarded significantly less for future income loss than claimed.

The appellant appealed, arguing the award was inconsistent and that the trial judge erred in failing to instruct the jury regarding the propriety of pre-trial communications between her counsel and an expert witness.

The respondents cross-appealed on costs, assignment of collateral benefits, and prejudgment interest.

The Court of Appeal dismissed both the appeal and cross-appeal, finding evidence supported the jury's verdict, counsel had agreed to the jury charge regarding the expert witness, and the trial judge made no errors in her discretionary orders on costs, benefits, and interest.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits from the insurer, claiming he sustained a catastrophic impairment due to severe psychological and physical injuries.

The insurer denied the claims, arguing the applicant was malingering and not significantly disabled.

The arbitrator found the applicant credible and concluded he suffered a catastrophic impairment under s. 2(1.2)(g) of the Schedule, experiencing marked impairment in activities of daily living and concentration, persistence, and pace.

The arbitrator awarded income replacement benefits, attendant care benefits at $6,000 per month, and an occupational therapy treatment plan.

Housekeeping benefits were denied due to insufficient evidence of the pre-accident baseline.

A special award of $5,000 was ordered against the insurer for unreasonably delaying payment for the applicant's psychiatric medications.

The plaintiff, catastrophically injured in a motor vehicle accident, sought statutory accident benefits in the form of retrospective attendant care benefits for a period between 2001 and 2006.

The motion asked the court to determine the date from which interest should accrue if those benefits were ultimately found to be payable.

The insurer argued interest could only begin after it received a Form 1 assessment of attendant care needs, relying on appellate authority interpreting the Statutory Accident Benefits Schedule.

The court held that under the applicable 2001 version of the Schedule, interest begins when the insurer had sufficient information to assess entitlement to the benefit, even absent a formal Form 1.

On the facts, the insurer had early knowledge of the claimant’s catastrophic impairments and attendant care needs.

The insurer sought its expenses following the successful defence of an appeal regarding the appellant's entitlement to non-earner benefits.

The appellant did not respond to the insurer's bill of expenses.

The Director's Delegate found that the insurer was entirely successful on the appeal and was therefore entitled to its expenses under the Expense Regulation.

The claimed amount of $1,977.17 was found to be reasonable and was awarded in full.

The appellant insurer appealed a trial judge's decision regarding the calculation of interest on retroactive attendant care benefits under the Statutory Accident Benefits Schedule.

The trial judge had ordered interest to run from the date the benefits were incurred, relying on previous case law.

The Divisional Court allowed the appeal, holding that under sections 39 and 46 of the SABS, a payment is not overdue, and interest does not begin to run, until 10 business days have elapsed after the insurer receives a Form 1 assessment of attendant care needs.

The appellant, who was injured in a motor vehicle accident at age 10, appealed an Arbitrator's decision denying him non-earner benefits (NEBs) under the SABS-1996.

The Arbitrator found that the appellant did not suffer a complete inability to carry on a normal life within 104 weeks of the accident, nor when he turned 16.

The appellant argued that the insurer's failure to provide proper notices of refusal procedurally entitled him to benefits.

The Director's Delegate upheld the Arbitrator's decision, confirming that under the Court of Appeal's decision in Stranges, procedural breaches by an insurer do not automatically entitle an insured to benefits without proving substantive entitlement.

The appeal was dismissed.

This was a costs-only decision following settlement of a motor vehicle personal injury action on the morning trial was to commence.

The plaintiff accepted an offer providing for payment of $22,500, prejudgment interest, and partial indemnity costs to the date of the offer, but the parties disputed the amount and scope of recoverable costs.

The court disallowed several disputed disbursements, including counsel travel, the plaintiff's travel advance for a medical-legal assessment, two housekeeping expert reports, and interest on a litigation loan, emphasizing proportionality and the fair-and-reasonable approach under Rule 57.

Partial indemnity fees were fixed at $10,000 plus HST, disbursements at $15,683.64 inclusive of HST, and the defendant received $200 plus HST for the costs hearing, deductible from the plaintiff's award.

The applicant claimed statutory accident benefits following an alleged motor vehicle accident.

The insurer disputed that an accident took place.

The applicant's representative withdrew after losing contact with her for over three years.

The applicant failed to attend the preliminary issue hearing despite being served with notice.

As the applicant did not present any evidence to establish that an accident occurred, her claims for accident benefits were dismissed.

The insurer sought repayment of statutory accident benefits paid to four applicants, alleging the motor vehicle accident was staged.

The applicants failed to attend the hearing.

Relying on uncontroverted accident reconstruction evidence, the arbitrator found the accident did not occur as reported and that the applicants received benefits as a result of wilful misrepresentation.

However, interpreting section 47(1)(a) of the Schedule strictly, the arbitrator held the insurer could only recover benefits paid directly to the insured persons, not those paid to third-party service providers.

Three applicants were ordered to repay the amounts paid directly to them, and all four were ordered to pay the insurer's arbitration expenses.

Following a decision denying the applicant's claims for statutory accident benefits, the parties sought a determination on their entitlement to arbitration expenses.

The arbitrator applied Rule 75.2 of the Dispute Resolution Practice Code, noting that the insurer was entirely successful in the arbitration and had made a more reasonable settlement offer.

The issues raised were not particularly novel.

Consequently, the arbitrator found the insurer entitled to its expenses and ordered the applicant to pay the agreed quantum of $11,974.72.

The applicant insurance company sought judicial review of a Financial Services Commission of Ontario (FSCO) decision regarding the applicable interest rate on overdue Statutory Accident Benefits.

The central issue was the interpretation of transitional provisions between the old and new Statutory Accident Benefits Schedules for amounts becoming overdue after September 1, 2010.

The Divisional Court determined the standard of review was reasonableness, as the Tribunal was interpreting its home statute.

The Court dismissed the application, finding the Tribunal reasonably concluded that the 2% interest rate under the old regulation continued to apply to amounts that became overdue after September 1, 2010.

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

The insurer denied claims for attendant care, caregiver, and housekeeping benefits, arguing the applicant's injuries were minor and her presentation was not credible.

The arbitrator found that the applicant suffered significant psycho-emotional injuries, including chronic pain syndrome and post-traumatic stress disorder, resulting in a catastrophic impairment.

The arbitrator awarded attendant care benefits at the maximum rate of $6,000 per month, caregiver benefits for her younger son, and housekeeping benefits.

A claim for home modifications was denied as the renovations were planned prior to the accident.

The arbitrator also ordered a 10% special award against the insurer for unreasonably withholding payments without adequately assessing the medical evidence.

The defendants brought a Rule 21.01(1)(b) motion to strike a conspiracy claim from a statement of claim alleging fraudulent Statutory Accident Benefits Schedule (SAB) insurance claims.

The plaintiff insurer alleged that the defendants conspired to submit fraudulent invoices for treatment services not rendered and sought damages arising from the payments made.

The court applied the doctrine of merger, holding that where a plaintiff pleads that defendants conspired to commit a fraud and also carried out that fraud, the conspiracy claim merges with the tort of fraud and becomes redundant.

Because the damages alleged were solely attributable to the fraud and not to a stand-alone conspiracy, the conspiracy claim disclosed no independent cause of action.

The conspiracy pleading was struck with leave to amend the claim to clarify that the allegations are grounded in fraud.

The applicants sought statutory accident benefits following a reported motor vehicle collision.

The insurer terminated benefits and sought repayment, alleging the collision did not occur as reported.

At a preliminary issue hearing, the arbitrator weighed competing accident reconstruction expert evidence and the applicants' testimony.

Finding the applicants' evidence credible and the applicant's expert persuasive, the arbitrator concluded on a balance of probabilities that the applicants were involved in an 'accident' as defined in section 2(1) of the Schedule.

The appellant appealed an arbitration decision denying his $29,000 expense claim due to a 31-month delay in requesting an expense hearing.

The Director's Delegate dismissed the appeal and ordered that any request for appeal expenses be made within 60 days.

The respondent, who was entirely successful on the appeal, failed to request an appeal expense hearing within the 60-day timeline, waiting at least seven months.

The Director's Delegate found that the respondent's delay was deliberate and a disregard of an adjudicative order.

Consequently, the Director's Delegate declined to extend the timeline and ordered each party to bear their own legal expenses of the appeal.

The applicant was injured in a motor vehicle accident when he was nine years old.

He applied for non-earner benefits upon turning 16, arguing that his accident-related impairments continuously prevented him from engaging in substantially all of his pre-accident activities, leading him to drop out of school.

The arbitrator found that the applicant's academic and social difficulties were not primarily caused by the accident, but rather by pre-existing learning issues, a more demanding high school curriculum, and non-accident-related back pain.

The application for non-earner benefits, along with claims for a special award and interest, was dismissed.