Ian D. Kirby

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

The arbitrator applied the criteria under section 12(2) of Ontario Regulation 664, noting the Applicant's success and the insurer's conduct in prolonging the proceeding.

The arbitrator awarded the Applicant $45,595.50 in legal fees, inclusive of HST, after deducting hours claimed for an unsuccessful motion and travel time.

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

The insurer took the position that the accident was staged and sought repayment of benefits already paid.

The applicant failed to attend the scheduled arbitration hearing.

Pursuant to Rule 37.7 of the Dispute Resolution Practice Code, the arbitrator proceeded in her absence and dismissed her claims for failing to establish entitlement.

The preliminary issue of whether the accident was staged was bifurcated and deferred to a future hearing to be coordinated with related applications.

The applicant sought statutory accident benefits following a motor vehicle accident.

The insurer alleged the accident was staged and sought repayment of benefits paid.

The substantive claims and preliminary issues were bifurcated.

The applicant failed to attend the hearing for the substantive claims.

Pursuant to Rule 37.7 of the Dispute Resolution Practice Code, the arbitrator proceeded in her absence and dismissed her claims for failing to establish entitlement.

The arbitrator declined to hear the insurer's preliminary issues regarding the staged accident at this hearing, as no notice had been provided to the applicant and related matters were pending.

The preliminary issues were deferred to be scheduled with the related matters.

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

The insurer denied the claims, alleging the accident was staged, and sought repayment of benefits already paid.

The substantive claims and preliminary issues were bifurcated.

The applicant failed to attend the hearing for the substantive claims.

Pursuant to Rule 37.7 of the Dispute Resolution Practice Code, the arbitrator proceeded in the applicant's absence and dismissed the claims for failure to establish entitlement.

The arbitrator declined to determine the preliminary issues regarding the staged accident, directing that they be scheduled for a later hearing alongside related applications to avoid inconsistent results.

The Appellant insurer appealed an Arbitrator's decision ordering it to pay $995 for an MRI and interest on overdue benefits at 2% per month under the Old Regulation.

The Director's Delegate allowed the appeal regarding the MRI, finding that the Arbitrator erred in law by not applying the 'reasonably available' test under subsection 60(2) of the Old Regulation, as OHIP had paid for the MRI within five weeks.

However, the Delegate dismissed the appeal regarding interest, finding that the insured had a vested contractual right to the 2% interest rate under the Old Regulation, and the transitional provisions in the New Regulation did not clearly rebut the presumption against interference with vested rights.

Following a finding that the insurer unreasonably withheld income replacement and housekeeping benefits, the arbitrator determined the quantum of a special award under s. 282(10) of the Insurance Act.

The insurer had terminated benefits despite its own assessors concluding the applicant was unable to work and required housekeeping assistance.

The arbitrator fixed the special award at $58,000, representing approximately 20% of the withheld payments inclusive of interest, to punish the insurer's blameworthy conduct and deter future similar actions.

The applicant insurer appealed an arbitrator’s decision interpreting the phrase “gross vehicle weight” in Ontario Regulation 664 under the Insurance Act for purposes of the statutory accident benefits loss transfer scheme.

The arbitrator held that “gross vehicle weight” referred to the manufacturer’s capacity weight of the vehicle rather than its actual weight at the time of the accident.

The court reviewed the interpretation on a correctness standard and examined statutory context and prior authority, including Royal Insurance Co. v. Wawanesa Mutual Insurance Co. The court concluded that the term refers to the actual combined weight of the vehicle and load rather than the vehicle’s rated capacity.

The arbitrator erred in law by failing to follow binding authority and by adopting the capacity-weight approach.

Following dismissal of a summary judgment motion brought by a co-defendant seeking to dismiss the plaintiffs’ claim and a cross-claim, the court addressed costs between the co-defendants.

The responding insurer sought partial-indemnity costs exceeding $13,000 after successfully opposing the motion, arguing the matter involved moderate complexity and significant financial exposure under the Insurance Act.

The moving defendant argued the costs were excessive and should either be reduced or made payable in the cause, particularly given the prematurity of the summary judgment motion and issues surrounding the insurer’s standing.

The court held that the insurer was entitled to costs as the successful party but reduced the amount claimed, finding the requested sum excessive in the circumstances.

Costs were fixed at $6,750 payable by the moving defendant.

The defendant vehicle owner sought leave to appeal the dismissal of its summary judgment motion.

The owner argued that the driver's criminal conviction for operating a motor vehicle without consent precluded re-litigating the issue of consent, making the claims an abuse of process.

The Divisional Court dismissed the motion for leave to appeal, agreeing with the motion judge that the insurer had led evidence to the contrary raising a genuine issue for trial, and that a full appreciation of the evidence required a trial.

The applicant's representative brought a motion to withdraw as counsel of record prior to the arbitration hearing, citing a breakdown in the solicitor-client relationship and ethical reasons.

The applicant opposed the motion, arguing prejudice and delay.

Applying the principles from R. v. Cunningham, the arbitrator granted the motion to withdraw, finding that the request was made far enough in advance of the rescheduled hearing and that counsel should not be forced to continue representing the applicant given the ethical reasons and irreconcilable differences.

The withdrawal was made conditional on the representative continuing to make the applicant's file available for review at her office.

Following an assessment hearing relating to costs, the court considered written submissions from the parties regarding entitlement to costs of the assessment proceeding itself.

The moving party argued that costs should be awarded because participation in the hearing was necessary to quantify the costs previously awarded.

The responding party argued that the amounts claimed had been substantially reduced during the assessment.

The court concluded that success was divided and that it was appropriate for each party to bear its own costs.

The appellant insurer sought a stay of an arbitrator's order pending appeal.

The arbitrator had ordered the insurer to pay $995 for an MRI and to pay interest on overdue benefits at 2% per month.

The respondent did not oppose the stay regarding the MRI payment, which was granted.

However, the respondent opposed the stay of the interest order, citing severe financial hardship.

The Director's Delegate found that while the appeal raised a novel question of law regarding the interest rate, the insurer claimed no hardship, whereas the respondent provided unchallenged evidence of significant financial distress.

The request to stay the interest award was therefore dismissed.

The plaintiff was injured when she was dragged by a car and then struck when the driver reversed.

The driver's insurer denied coverage, arguing the driver's actions were intentional and thus excluded under s. 118 of the Insurance Act.

The motion judge granted summary judgment, finding the insurer had a duty to defend and indemnify the driver and his parents, and awarded full indemnity costs to the insureds.

The Court of Appeal dismissed the insurer's appeal, holding there was no genuine issue requiring a trial regarding the driver's intent, as the evidence showed the harm was not intentional.

The court also upheld the duty to defend and the costs awards.

Following a successful trial in an accident benefits dispute, the parties were unable to agree on the quantum of trial costs after the Court of Appeal permitted submissions on the issue.

The plaintiff sought nearly $297,000 in legal fees plus significant disbursements, including expert accounts with high compound interest.

The court held that the interest component of the damages under the Statutory Accident Benefits Schedule did not justify treating the litigation as a $500,000 case for costs purposes.

The hourly rates claimed by plaintiff’s counsel were reduced and significant reductions were made to the claimed fees and certain disbursements.

The court fixed partial indemnity fees at $170,000 plus GST and disallowed interest claimed on expert disbursements.

The defendant dealership moved for summary judgment to dismiss the plaintiffs' personal injury claim and the co-defendant insurer's cross-claim, arguing that the driver's prior criminal conviction for taking the vehicle without consent conclusively established a lack of consent.

The co-defendant insurer opposed the motion.

The court dismissed the motion, finding that the criminal conviction did not have preclusive effect because the driver faced little jeopardy and there was no robust examination of the facts.

The court also held that the insurer had standing to oppose the motion and maintain its cross-claim despite not yet having indemnified the plaintiffs, in order to avoid a multiplicity of proceedings.

Following the dismissal of a motion seeking leave to appeal an earlier order to the Divisional Court, the successful defendant sought costs.

The defendant claimed $4,470.10 on a partial indemnity basis, including fees and disbursements, while the plaintiff proposed an award of $2,000.

Applying the relevant factors under the Rules governing costs, the court found that the docketed hours appeared somewhat excessive and noted that certain claimed disbursements, including a car rental, were inappropriate.

The court exercised its discretion to fix costs in a reduced lump sum amount.

The appellant was entirely unsuccessful in her appeal of arbitration orders that dismissed her claims for accident benefits.

The respondent insurer subsequently sought its appeal expenses.

The Director's Delegate found that the respondent was entitled to its expenses, noting the appellant's lack of success, the absence of novel issues, and the appellant's conduct in prolonging the proceeding and failing to comply with orders.

The respondent was awarded $2,100.95 in appeal expenses.

The applicant, a self-employed plumber, was injured in a motor vehicle accident and sought statutory accident benefits.

The insurer terminated income replacement and housekeeping benefits and denied various medical benefits.

The arbitrator found that the applicant suffered a complete inability to engage in suitable employment due to his injuries, which aggravated pre-existing conditions, and awarded ongoing income replacement benefits.

The arbitrator also awarded the claimed medical benefits, housekeeping benefits, the cost of an MRI, and interest at 2% per month.

A special award was granted against the insurer for unreasonably withholding payments, with the amount to be determined.

Following the dismissal of an appeal regarding a special award, the respondent sought legal expenses.

The appellant conceded the quantum of expenses but argued it had overpaid the special award by mistake and sought to set off the expenses against the overpayment.

The Director's Delegate held there was no jurisdiction to address the appellant's own payment error, as appeals are limited to errors of law by the Arbitrator.

The respondent was awarded his reasonable legal expenses of the appeal fixed at $3,559.50.

The appellant was injured in a motor vehicle accident and successfully arbitrated a claim for statutory accident benefits against the respondent insurer.

The arbitrator's decision left the issue of legal expenses to be resolved by the parties or through an expense hearing.

The appellant delayed requesting an expense hearing for 31 months.

The arbitrator subsequently denied the appellant's request for expenses due to the inordinate delay, refusing to extend the 30-day time limit under Rule 79.1 of the Dispute Resolution Practice Code.

On appeal, the Director's Delegate upheld the arbitrator's decision, finding that the delay was not a mere technical breach and that the arbitrator properly exercised her discretion in prioritizing the principle of finality and the timely resolution of disputes.