Ian D. Kirby

The appellant appealed an arbitrator's decision dismissing her claims for statutory accident benefits and awarding expenses to the insurer following a rear-end collision.

The arbitrator had found that the appellant suffered a mild whiplash injury from which she recovered, and that her ongoing physical and psychological issues were attributable to pre-existing conditions rather than the accident.

On appeal, the Director's Delegate dismissed the appeal, finding that the arbitrator's conclusions on causation were factual determinations supported by the medical evidence.

The Delegate also rejected the appellant's procedural arguments, including claims of bias and the refusal to order the insurer to pay for transcripts from a previous arbitration, concluding that the arbitrator properly controlled the hearing and afforded the appellant a reasonable opportunity to present her case.

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

The insurer denied claims for physiotherapy, caregiving, housekeeping, and back cream.

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

The insurer argued the claims were statute-barred.

The arbitrator found that the Right to Dispute forms sent for the physiotherapy, caregiving, and housekeeping claims met the requirements for a valid refusal under Smith v. Co-operators, triggering the limitation period.

Therefore, those claims were statute-barred.

However, the arbitrator found that a valid refusal was not issued for the back cream claim, so it was not statute-barred and could proceed to arbitration.

The insurer appealed an Arbitrator's decision awarding the insured a special award for unreasonably withholding income replacement benefits.

The insurer argued it reasonably relied on its own medical experts who opined the insured did not meet the post-104-week disability test.

The Director's Delegate dismissed the appeal, finding no error of law in the Arbitrator's conclusion that the insurer failed to consider all available information, including contradictory reports from its own vocational expert and the insured's treatment providers.

The Delegate also upheld the quantum of the special award, noting that while expressed as a percentage, it was readily convertible to a lump sum of approximately $7,700, which was not disproportionate to the insurer's conduct.

The applicant sought reimbursement for disbursements, primarily medical reports, incurred in respect of an interim benefits motion.

The insurer objected to paying for reports prepared before benefits were terminated, arguing they were not dispute resolution expenses.

The arbitrator held that pre-termination reports could be recovered if they were 'in furtherance' of the proceeding and 'necessary and useful' to the arbitrator.

Only the report explicitly relied upon in the interim benefits decision was allowed, resulting in an award of $7,251.99 plus HST.

The insurer applied to vary an arbitrator's final decision that denied the insured's entitlement to ongoing income replacement benefits (IRBs) but failed to order the repayment of interim IRBs paid prior to the final decision.

The Director's Delegate found that the failure to address the repayment issue, which had been explicitly argued at the hearing, constituted an error in the order under section 284(3) of the Insurance Act.

The order was varied to require the insured to repay $15,840 in interim IRBs to the insurer.

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

The insurer argued the claim was barred by Rule 79.1 of the Dispute Resolution Practice Code, as the applicant waited 2.5 years to request an expense hearing instead of the required 30 days.

The arbitrator found the applicant's explanation for the delay uncompelling and declined to extend the time limit under Rule 81.

The applicant was denied his expenses of $29,008.12 due to the delay.

The arbitrator also declined to address an alleged error in the insurer's interest calculation, finding no authority to do so in an expense hearing.

The applicant was catastrophically injured in a motor vehicle accident shortly after graduating high school.

At the time of the accident, she was working part-time serving meals at a senior's residence.

The insurer paid an income replacement benefit, but the applicant claimed entitlement to the higher non-earner benefit under s. 12(1)(3)(ii) of the Schedule, arguing she had completed her education less than a year prior and her employment did not reflect her education and training.

The arbitrator found that the applicant had 'completed her education' upon receiving her high school diploma, despite speculative plans to attend college.

The arbitrator also found that her menial, part-time job did not reflect her high school education and training.

The applicant was awarded the non-earner benefit with interest.

The claim for a special award was dismissed as the insurer's initial denial was not unreasonable given the ambiguity in the law.

Following a final arbitration decision that found the applicant was not entitled to income replacement benefits, the parties sought a determination on expenses.

The arbitrator awarded the insurer its expenses for the main arbitration proceeding, as it was the successful party.

However, the applicant was awarded her expenses for her successful interim benefits motion.

The arbitrator also held that she lacked jurisdiction to order the applicant to repay the interim benefits received, because the final arbitration decision was silent on the issue and the insurer had not brought an application to vary that decision.

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

Following an interim order for income replacement benefits, the insurer paid the arrears but argued that no special award was payable because no benefits were 'outstanding' when the matter was finally resolved.

The arbitrator held that because the interim payments were subject to a repayment condition until the final settlement, the benefits remained 'outstanding' within the meaning of the previous order and the Insurance Act.

The insurer's position was rejected, and the special award remained payable.

The applicant insurer sought judicial review of a FSCO Director's Delegate's decision.

The respondent was injured in an accident and subsequently filed an amended tax return reporting previously unreported income.

The Director's Delegate held that under s. 64.1(2) of the Statutory Accident Benefits Schedule, the respondent was entitled to have his income replacement benefits adjusted to reflect the higher income reported in the amended return.

The Divisional Court dismissed the application, finding the standard of review was reasonableness and that the Director's Delegate's interpretation of s. 64.1(2) was both reasonable and correct.

The insurer, Allstate, sought its expenses after successfully defending an appeal brought by the insured regarding statutory accident benefits.

The Director's Delegate found that Allstate was entirely successful on the appeal and that the appeal did not raise any novel issues of general importance, but rather turned on specific facts.

The Delegate rejected the insured's arguments that the hours claimed by Allstate's counsel for reporting to the client and preparing for the hearing were disproportionate.

Allstate was awarded its legal fees and disbursements fixed at $2,164.38.

The parties sought expenses following an arbitration regarding statutory accident benefits.

In a preliminary issue hearing, the applicant successfully defended against the insurer's allegation of misrepresentation.

However, in the main hearing, the applicant's claims for additional benefits were dismissed and she was ordered to repay certain benefits.

The arbitrator found that the parties incurred roughly the same expenses for both parts of the hearing.

Given the divided success—the applicant succeeding on the preliminary issue and the insurer succeeding on the main hearing—the arbitrator ordered that each party bear their own expenses.

The applicant was injured in a motor vehicle accident in December 2005 and received income replacement benefits (IRBs) until August 2008.

She sought IRBs beyond the 104-week mark, requiring her to prove a complete inability to engage in any employment for which she was reasonably suited, caused by the accident.

The applicant advanced several theories of causation, including spinal injuries, exacerbation of pre-existing fibromyalgia, and a psychological disorder.

The arbitrator rejected all theories, finding that the applicant likely only sustained minor soft tissue injuries in the accident, that the cause of fibromyalgia is unknown making exacerbation unprovable, and that the psychological diagnoses lacked adequate foundation.

The application for ongoing IRBs and a special award was dismissed.

The applicant, a self-employed locksmith, was injured in a motor vehicle accident in 2000 and received income replacement benefits (IRBs) until the insurer terminated them in 2006.

The applicant sought post-104 week IRBs, arguing he suffered a complete inability to engage in any employment for which he was reasonably suited.

The arbitrator found the applicant credible and accepted that his chronic pain syndrome prevented him from working an eight-hour day on a full-time basis.

The insurer's experts failed to consider whether the applicant could sustain full-time hours in a structured employment setting.

The arbitrator also dismissed the insurer's request to set off alleged past overpayments against future IRBs, as the insurer had not followed the statutory notice and repayment scheme under section 47 of the Schedule.

The applicant was awarded IRBs of $185.00 per week from March 2006 onward.

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

He initially failed to report income earned from a numbered company on his tax return, but later filed an amended return and was reassessed by the CCRA.

The arbitrator excluded this income from the benefit calculation under s. 64.1(1) of the SABS-1996.

On appeal, the Director's Delegate held that s. 64.1(2) permits the inclusion of income that is subsequently reported by the insured, reversing the arbitrator's decision.

The applicant, who sustained a catastrophic impairment in a motor vehicle accident, sought payment for home accessibility reports prepared by Adapt-Able Design Group.

The insurer argued the reports were a rehabilitation benefit payable under section 15 of the Statutory Accident Benefits Schedule, which would erode the applicant's $1 million limit.

The applicant argued the reports were assessment expenses payable under section 24.

The arbitrator found that the reports were necessary to allow the applicant access to the benefit and assess the quantum, and were therefore properly compensated under section 24.

The insurer was also found to be estopped from arguing otherwise due to its prior approval of the assessment applications.

The appellant appealed an arbitrator's decision dismissing her claims for income replacement, rehabilitation, attendant care, and housekeeping benefits following a motor vehicle accident.

The Director's Delegate found that the arbitrator's conclusions were based on findings of fact and credibility, particularly regarding unverified business income and the lack of medical evidence supporting ongoing care needs.

The arbitrator also correctly determined that funding for a university degree was not a reasonable and necessary rehabilitation expense, as the appellant's own occupational therapist testified she was already capable of working in her desired field.

The appeal was dismissed as it raised no errors of law.

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

A preliminary issue hearing was held to determine whether the applicant was self-employed or an employee of his incorporated locksmith business at the time of the accident, and whether the insurer was estopped from raising the issue.

The arbitrator found that the insurer was not estopped, as the issue of employment status was never fully resolved and the applicant himself had previously claimed to be self-employed.

Applying a functional approach, the arbitrator concluded that the applicant was self-employed, as he continued to act as the controlling mind of the business, worked irregular hours, and treated the business as a self-employed individual despite its incorporation.

The applicant sought post-104 week income replacement benefits following a motor vehicle accident.

During the pre-hearing, the applicant requested an order compelling the insurer to produce any additional surveillance evidence no later than 15 days after receiving it, in addition to the insurer's agreement to produce all surveillance 90 days before the hearing.

The arbitrator found that the request for the 15-day production order was moot because the 90-day deadline before the scheduled hearing had already passed by the time the motion was decided.

The motion for the further order was dismissed.

The applicant was injured in multiple motor vehicle accidents, most notably in September 1996.

She claimed the cost of psychological treatment, which the insurer denied, arguing the need for treatment arose from subsequent accidents or life events.

The arbitrator found that the applicant's need for psychological treatment largely stemmed from the September 1996 accident and that the treatment was reasonable and necessary.

The arbitrator also found that the insurer unreasonably withheld and delayed payment of the benefits, failing to comply with its obligation to pay pending resolution of the dispute and failing to arrange a timely assessment.

The applicant was awarded the cost of the treatment, interest, and a special award of $5,000.