Ian D. Kirby

The applicant sought to recover expenses following an arbitration decision that awarded her partial housekeeping benefits.

The insurer also sought its expenses.

The arbitrator reviewed the amended Expense Regulation, which removed the broad discretion to consider access to the dispute resolution system and mandated a results-based approach.

Finding that both parties enjoyed some measure of success but neither achieved their ultimate objective, the arbitrator concluded that each party should bear its own expenses.

The applicant's pre-hearing offer to settle was disregarded because subsequent settlements and withdrawals of other claims vitiated the original offer.

Following the dismissal of the applicant's arbitration for statutory accident benefits, the insurer sought costs against the applicant's representative personally under section 282(11.2) of the Insurance Act.

The insurer alleged that it paid the representative $342 for documents that were never provided.

The representative did not respond to the costs submissions.

The arbitrator accepted the uncontradicted allegations, found that the representative caused the insurer to incur expenses without reasonable cause, and ordered the representative to personally pay $342 to the insurer.

The applicants claimed to have been injured in a motor vehicle accident and applied for statutory accident benefits.

The insurer denied the benefits, alleging that the applicants wilfully misrepresented material facts by claiming they were involved in an accident that did not occur as described.

Relying on expert evidence in accident reconstruction, the arbitrator found that the physical damage to the vehicles was inconsistent with the applicants' accounts.

The arbitrator concluded that the applicants deliberately misrepresented material facts and were therefore precluded from receiving accident benefits under section 48 of the Schedule.

The applicants' claims for income replacement and medical benefits were dismissed, and they were ordered to pay the insurer's arbitration expenses.

Following an arbitration decision where the applicant recovered approximately $1,000, the insurer sought its expenses.

The insurer had made a settlement offer of $7,500 four months prior to the hearing, which the applicant rejected.

The arbitrator considered the criteria under Ontario Regulation 664 and ordered the applicant to pay half of the insurer's expenses, noting the importance of encouraging settlement.

The arbitrator also ruled that court reporter's fees are not an allowable disbursement under the tariff.

Following the dismissal of the applicant's claims for income replacement benefits and a special award, both parties sought their arbitration expenses under subsection 282(11) of the Insurance Act.

The arbitrator applied the criteria under Regulation 664 and the Dispute Resolution Practice Code, finding that the insurer was entirely successful, had made a formal offer to settle that was more generous than the outcome, and that the applicant's conduct caused unreasonable delay.

The applicant's claim for expenses was dismissed, and the applicant was ordered to pay $1,000 towards the insurer's legal fees and disbursements.

The applicant was injured in a rear-end motor vehicle accident and sought housekeeping and home maintenance benefits beyond the insurer's termination date of June 2, 2003.

The arbitrator found that the medical evidence, including the insurer's own multi-disciplinary assessment, supported that the accident materially contributed to a chronic pain condition limiting her ability to perform housekeeping.

However, the arbitrator drew an adverse inference from the applicant's failure to provide evidence regarding the outcome of a recommended 10-week psychotherapy treatment plan, concluding her entitlement ended on September 15, 2003.

Benefits were awarded at a rate of $30 per week based on in-home assessments, rather than the maximum $100 per week claimed.

The applicant sought arbitration for various statutory accident benefits following a motor vehicle accident.

Neither the applicant nor his representative appeared at the hearing.

The arbitrator dismissed the application for arbitration due to the absence of evidence.

The insurer sought expenses, including the assessment fee, but the arbitrator noted the statutory authority to award the assessment fee had been repealed.

The arbitrator ordered the applicant to pay $1,500 in expenses.

The issue of whether the applicant's representative should personally pay $342 in disbursements was deferred to allow the representative an opportunity to make written submissions as required by the Insurance Act.

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

The insurer denied the claim, alleging the accident was staged and the damage was caused by a blunt object.

The arbitrator found that while an incident involving the two vehicles did occur, the applicant failed to prove he suffered a compensable impairment arising from the accident.

Furthermore, the arbitrator found that the applicant made wilful false statements regarding his medical history and prior accidents, thereby forfeiting his right to recover indemnity under section 233(1)(c) of the Insurance Act.

The application for benefits was dismissed.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them.

The applicant claimed ongoing disability due to a knee injury (a torn ACL) and sought further benefits, interest, and a special award.

The arbitrator found that the applicant's knee pain was not disabling and that the ACL injury was not caused by the accident, relying on medical evidence that the applicant could work without surgery.

The claim for ongoing benefits was dismissed.

However, the arbitrator awarded interest on late payments made prior to termination and a small amount for a four-day deficiency in the notice of termination.

The claim for a special award was dismissed as the insurer's conduct was not unreasonable.

The applicant claimed she was injured in a minor motor vehicle accident and sought income replacement benefits and housekeeping expenses from her insurer.

The insurer denied the claims, arguing the collision was too minor to cause the alleged injuries and questioning the applicant's credibility.

The arbitrator found the applicant's evidence unreliable, noting numerous inconsistencies and implausible explanations regarding the accident and her injuries.

The arbitrator concluded the applicant did not suffer a substantial inability to perform her employment tasks or housekeeping duties as a result of the accident.

All claims for benefits and a special award were dismissed.

The insurer appealed an arbitration decision awarding $35,000 in death benefits to the mother of a man killed in a motor vehicle accident.

The insurer argued the arbitrator erred in finding the mother was principally dependent on her son for financial support, specifically challenging the weight given to a decision of an Ethiopian communal court and the sufficiency of the evidence.

The Director's Delegate dismissed the appeal, finding that the arbitrator applied the correct legal principles and made no error of law in weighing the available evidence, which included statutory declarations and bank records.

The insurer appealed an arbitration order requiring it to pay interest on medical and rehabilitation expenses and a $1,000 special award.

The Director's Delegate held that interest under s. 46(2) of the SABS-1996 is not payable on expenses incurred after a negative Designated Assessment Centre (DAC) report until an adjudicator determines the benefits are owing, as the amounts are not 'overdue' prior to that determination.

The appeal was allowed in part, adjusting the interest payable and reducing the special award to $500 to comply with the statutory maximum under s. 282(10) of the Insurance Act.

The insurer appealed an arbitration order requiring it to pay interest on chiropractic and exercise expenses awarded to the insured.

The central issue was whether interest under s. 46(2) of the SABS-1996 is payable on medical expenses that a Designated Assessment Centre (DAC) had previously deemed not reasonable and necessary, but which an arbitrator later awarded.

The Director's Delegate held that because the DAC report was negative, the insurer had no obligation to pay the expenses prior to the arbitrator's decision.

Consequently, the benefits were not 'overdue' within the meaning of the Schedule prior to adjudication, and no interest was payable for that period.

The appeal was allowed and the order for interest was rescinded.

The insurer appealed an arbitration order regarding the calculation of income replacement benefits (IRBs), interest, and a special award under the SABS-1994.

The Director's Delegate held that the 75% deduction rate for post-accident income under s. 10(4) applies only to a single 26-week period, reversing the arbitrator's application of the lower rate to multiple jobs.

The Delegate upheld the finding that a lump sum lay-off payment was termination pay excluded from income under s. 87.

The Delegate reversed the interest award, finding interest was only payable from 14 days after the insured requested mediation, due to his four-year delay in seeking reinstatement of benefits.

Finally, the Delegate upheld a 15% special award, finding the insurer unreasonably relied on a deficient ergonomist report to terminate benefits.

The applicant sought to withdraw her Application for Arbitration after conceding she failed to attend an insurer's medical examination, which precluded her from proceeding under section 50 of the Statutory Accident Benefits Schedule.

The insurer consented to the withdrawal but sought a $3,000 award under subsection 282(11.2) of the Insurance Act, arguing the application was frivolous, vexatious, or an abuse of process.

The arbitrator permitted the withdrawal and declined to make the award, finding the applicant did not know the insurer was relying on the section 50 defence until the pre-hearing discussion.

Each party was ordered to bear its own expenses.

The applicant was injured in a motor vehicle accident and sought income replacement benefits, claiming the accident aggravated pre-existing neck, back, and shoulder injuries from a prior accident.

The insurer denied the claim, arguing the applicant's disability stemmed entirely from his pre-existing conditions.

The arbitrator dismissed the claim, finding that the applicant's pre-existing conditions were the principal cause for him leaving his pre-accident job weeks before the subject accident.

The arbitrator concluded that the subject accident did not appreciably change or worsen the applicant's pre-existing disabilities.

The applicant sought expenses following an arbitration decision where he achieved partial success in his claims for statutory accident benefits.

The insurer also claimed its expenses, relying on two written offers to settle that exceeded the applicant's recovery.

The arbitrator awarded the applicant 50% of his allowable arbitration expenses, considering his partial success, the insurer's conduct in delaying pre-hearing discussions, and the statutory objective of speedy dispute resolution.

The insurer's claim for expenses was denied, as the arbitrator declined to follow a strict results-based approach based solely on the offers to settle.

The applicant's total allowable expenses were assessed at $13,010, resulting in an award of $6,505.

The appellant insurer appealed a trial decision awarding the respondent insured a substantial loss of earning capacity benefit (LECB) and interest on overdue payments.

The respondent, a university student who suffered cognitive deficits and depression following a motor vehicle accident, cross-appealed the trial judge's decision to lock in her pre-accident earning capacity.

The Court of Appeal dismissed the insurer's appeal, finding the trial judge correctly concluded the respondent's residual earning capacity was zero due to her psychological makeup, and correctly awarded interest from the date benefits were overdue.

The Court allowed the cross-appeal, holding that the pre-accident earning capacity must be adjusted as the insured ages pursuant to the statutory formula.

The applicant sought an income replacement benefit following a motor vehicle accident, claiming he was employed at an auto body shop and paid in cash.

The arbitrator dismissed the claim, finding the applicant lacked credibility and failed to provide objective, verifiable evidence of his employment or his alleged substantial disability.

The arbitrator noted significant discrepancies regarding when the applicant began working, how he was paid, and his earnings.

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

Given the frivolous nature of the proceeding and the applicant's lack of credibility, the arbitrator ordered the applicant to pay the insurer's reasonable arbitration expenses.

The applicant was injured in a motor vehicle accident and sought income replacement benefits and medical benefits after the insurer terminated them.

The arbitrator found that the applicant was entitled to income replacement benefits for a limited period from July 22, 2000, to October 4, 2000, based on his family doctor's evidence of ongoing improvement.

However, relying on surveillance evidence and a Med Rehab DAC assessment, the arbitrator concluded the applicant was substantially able to perform his pre-accident employment as a welder after October 4, 2000.

The arbitrator also awarded $1,522 for chiropractic treatments but denied the claim for physiotherapy and massage treatments, finding them not reasonable and necessary.