Ian D. Kirby

The applicant was injured in a motor vehicle accident and sought statutory accident benefits for caregiving and housekeeping expenses.

The insurer terminated these benefits based on in-home assessments and independent medical examinations indicating the applicant was not substantially disabled.

The applicant submitted invoices for services allegedly provided by her sister and a neighbour.

The arbitrator found the invoices to be unreliable and fabricated, noting they contradicted the applicant's own statements to assessors and the testimony of the service providers.

The application for benefits and a special award was dismissed, and the insurer was awarded its expenses of the arbitration proceeding.

Following a finding that the insurer unreasonably withheld funeral and death benefits, the arbitrator determined the quantum of the special award.

Applying the Persofsky framework, the arbitrator found the insurer's conduct egregious, noting its wilful blindness, inflexible attitude, and adversarial approach.

The insurer ignored reliable evidence, including a police report, and failed to reassess the claim as new information became available.

The arbitrator awarded $10,000 to the estate for the withheld funeral benefits and $40,000 to the applicant for the withheld death benefits, emphasizing the need for deterrence.

The applicant, a 62-year-old homemaker with a history of pre-existing depression and anxiety, was injured in a pedestrian knockdown.

She sought statutory accident benefits, including non-earner benefits, attendant care, housekeeping, prescription medication, and costs of examinations.

The arbitrator found that the accident significantly exacerbated her psychological condition, profoundly compromising her ability to engage in rewarding pre-accident activities such as babysitting, reading, and taking long walks.

Applying a qualitative approach to the non-earner benefit test, the arbitrator concluded she suffered a complete inability to carry on a normal life and awarded ongoing non-earner benefits and prescription medication costs.

Claims for attendant care and housekeeping were dismissed due to insufficient evidence.

The cost of a neurological assessment was allowed, but an orthopaedic assessment was denied as it did not address accident benefits.

A claim for a special award was also dismissed.

The applicant sought production of the insurer's adjuster's log notes generated between the settlement of his first set of accident benefits claims and his second application for arbitration.

The insurer claimed litigation privilege over the entire file.

The arbitrator held that the insurer bears the burden of proving privilege and that litigation was not reasonably contemplated immediately after the first settlement.

The arbitrator ordered production of the log notes generated up to the date of the second application for mediation, finding that the adjustment phase continued until that point.

The applicant sought death and funeral benefits after her 87-year-old husband fell backwards on a street, suffered a severe closed head injury, and died days later.

The insurer denied the claim, arguing there was insufficient evidence that its insured's van caused the fall.

The arbitrator found on a balance of probabilities that the van made contact with the deceased, causing him to fall and sustain the fatal injury.

The arbitrator awarded $25,000 in death benefits and $6,000 in funeral benefits, plus interest.

Furthermore, the arbitrator found the insurer unreasonably withheld benefits by failing to properly investigate, ignoring supportive evidence, and allowing a tort supervisor to influence the accident benefits decision, thereby justifying a special award under s. 282(10) of the Insurance Act.

Following an arbitration where the applicant's claims for statutory accident benefits were dismissed, the insurer sought its expenses.

The arbitrator found that the insurer was predominantly successful and that the self-represented applicant's conduct unnecessarily prolonged the hearing.

The arbitrator awarded the insurer its reasonable expenses, including legal fees and disbursements, totaling $15,344.05.

The applicant was severely injured in a motor vehicle accident and sought a catastrophic impairment assessment.

After a previous assessment was found non-compliant, the arbitrator ordered a new assessment.

The parties disputed the location of the new assessment, with the applicant preferring Hamilton and the insurer preferring Mississauga.

The arbitrator ordered the assessment to take place in Hamilton, as it was closer to the applicant's residence in Thunder Bay, consistent with the general guideline for choosing designated assessment centres.

The Applicant was injured in a motor vehicle accident and received income replacement benefits until the Insurer terminated them based on a DAC assessment.

The Insurer argued the Applicant's arbitration was statute-barred because she failed to apply for mediation within two years of the refusal.

The Arbitrator found that the Insurer's notice of refusal only mentioned mediation and failed to explain the entire dispute resolution process, as required by the Supreme Court in Smith v. Co-operators.

Consequently, the notice was deficient, the limitation period was not triggered, and the Applicant was permitted to proceed with her arbitration.

The insurer brought a motion for the production of the applicant's complete, unedited clinical notes and records from her family doctor.

The applicant had produced redacted records, arguing that the deleted portions contained private and confidential information irrelevant to her motor vehicle accident claim.

The applicant requested that the pre-hearing arbitrator review the unedited records to determine relevance.

The arbitrator declined to review the records, finding that the hearing arbitrator would be in a better position to assess their probative value.

Applying the principle that a plaintiff's pre- and post-accident medical condition is relevant when damages for personal injuries are sought, the arbitrator ordered the applicant to produce the complete, unedited records from 1995 to date.

The issue of expenses was deferred to the hearing arbitrator.

The applicant was severely injured in a motor vehicle accident and applied for a determination of catastrophic impairment.

The insurer arranged for a Designated Assessment Centre (DAC) assessment, which concluded the applicant was not catastrophically impaired based primarily on a paper review.

The applicant sought a further assessment, arguing the DAC process was flawed.

The Arbitrator found that the DAC failed to follow mandatory guidelines, specifically by not including a psychiatrist on the assessment team for mental and behavioural disorders and by failing to conduct a full in-person clinical assessment before rendering a negative finding.

The Arbitrator ordered the insurer to arrange a new, properly conducted CAT DAC assessment.

Following an arbitration decision awarding the applicant non-earner benefits for approximately 50 weeks, both parties sought their expenses of the hearing.

The insurer had made an offer to settle six days before the hearing, which was slightly better than the arbitration outcome.

The arbitrator found that the parties had mixed success and that the offer to settle should be given no weight because it was delivered only three business days before the hearing, giving the applicant insufficient time to consider it.

The arbitrator ordered that the parties bear their own expenses.

The parties applied for variation of an appeal order concerning the interaction of collateral benefits rules in the SABS-1994 and long-term care fees under the Nursing Homes Act.

The Minister of Health and Long-term Care refused the insured's application for a reduction in long-term care fees, stating that the auto insurer should be the first payer.

The Director's Delegate found that the Minister's decision constituted a material change in circumstances.

Because the fee reduction was refused, it was not 'reasonably available' under another plan or law within the meaning of s. 75(13) of the SABS-1994.

The insurer's application for variation was denied, and the insured's cross-application was granted, ordering the insurer to pay the long-term care fees at the unreduced rate.

The insurer sought an assessment of its arbitration expenses following a decision that dismissed the applicant's claim for statutory accident benefits and awarded the insurer its reasonable expenses.

The applicant did not pay the itemized Bill of Costs and failed to appear or provide written submissions for the assessment hearing, despite receiving proper notice.

The arbitrator reviewed the insurer's Bill of Costs and found the claimed legal fees and disbursements to be reasonable in relation to the length and complexity of the arbitration.

The applicant was ordered to pay the insurer $7,005.56, inclusive of GST.

Counsel for the applicant brought a motion to withdraw as counsel of record for an assessment of expenses proceeding following an arbitration decision.

Counsel submitted that there had been a breakdown in the solicitor-client relationship and that he had lost contact with the applicant.

The insurer did not object to the motion.

The arbitrator found that the solicitor-client relationship had broken down and granted the motion, permitting counsel to withdraw without terms.

The applicant, who was 17 years old and expelled from school at the time, suffered a serious brain injury in a motor vehicle accident.

He applied for a non-earner benefit, which the insurer disputed.

The arbitrator found that the applicant suffered a complete inability to carry on a normal life immediately following the accident, as his participation in activities was tempered by the effects of medication and his injuries.

However, by September 2002, the applicant had ceased taking the medication, resumed his pre-accident social life, and demonstrated independence, returning to a trajectory consistent with his pre-accident potential.

The arbitrator awarded the non-earner benefit for the period from September 18, 2001, to August 31, 2002, along with interest on overdue payments.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits, including loss of earning capacity benefits (LECBs).

The parties agreed on the applicant's pre-accident earning capacity (PEC) but disputed how to calculate his residual earning capacity (REC).

The specific issue was whether the applicant's voluntary overtime earnings at his post-accident employment should be included in the calculation of his REC.

The arbitrator held that overtime earnings are not relevant in the calculation of REC, as the legislative scheme for LECBs is intended to provide security and stability based on full-time employment income, exclusive of fluctuating overtime earnings.

The appellant and his representative failed to appear at an arbitration hearing for statutory accident benefits.

The arbitrator dismissed the application and ordered the appellant to pay the insurer's arbitration expenses.

The arbitrator also ordered the appellant's representative to personally repay the insurer for funds advanced for third-party document production that were never produced.

On appeal, the Director's Delegate dismissed the appeal, finding the explanations for the failure to appear unconvincing and confirming the arbitrator's orders, including the personal costs order against the representative.

Following an arbitration decision where the applicants' claims for statutory accident benefits were dismissed due to misrepresentation, the insurer requested an expenses hearing.

Neither applicant appeared at the hearing.

The arbitrator found the insurer's claimed expenses of $10,223.42 to be reasonable, given the multiple proceedings, late withdrawal of claims, and the applicants' misrepresentation.

Each applicant was ordered to pay 50% of the insurer's expenses, amounting to $5,111.71 each.

The applicant failed to attend the scheduled arbitration hearing, and his counsel sought an adjournment and to be removed from the record.

The arbitrator adjourned the hearing to allow counsel to bring a proper motion.

On the return date, neither the applicant nor his counsel attended.

The arbitrator dismissed the arbitration as an abuse of process.

Finding that the applicant's counsel failed to honour undertakings, failed to properly remove himself from the record, and abandoned his client, the arbitrator ordered counsel to personally pay the insurer's expenses of $4,205.61 pursuant to section 282(11.2) of the Insurance Act.

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

The insurer denied the claim, alleging the accident was staged and fraudulent.

In the substantive arbitration, the arbitrator found that an accident did occur, rejecting the insurer's fraud allegations, but dismissed the applicant's claim for benefits due to a failure to prove a compensable impairment and obfuscation of his health record.

In this subsequent decision on expenses, the arbitrator held that neither party was entitled to their general expenses.

However, because the insurer raised serious, unproven allegations of fraud that unnecessarily prolonged the hearing, the insurer was ordered to reimburse the applicant for the cost of his expert report commissioned to rebut the staged accident theory.