Ian D. Kirby

The applicant was injured in three motor vehicle accidents and received statutory accident benefits from the insurer.

The insurer terminated weekly income replacement benefits, arguing the applicant was only entitled to a non-earner benefit.

At a preliminary issue hearing, the insurer argued the applicant had an income continuation benefit plan available to him through his former employer.

The arbitrator found that the applicant did not have collateral benefits available to him because he applied for long-term disability benefits outside the limitation period without any tactical intent to hide information.

Furthermore, the eligibility test under the collateral disability policy was stricter than the test under the Statutory Accident Benefits Schedule.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them, relying on an ergonomist's report.

The applicant applied for arbitration, arguing he remained substantially unable to perform the essential tasks of his pre-accident job as a machine operator due to a shoulder injury and a traumatic brain injury.

The arbitrator found the ergonomist's report fundamentally flawed and accepted the evidence of the applicant's experts and an orthopaedic specialist retained by the insurer.

The arbitrator concluded the applicant was entitled to ongoing income replacement benefits, subject to deductions for post-accident earnings, and ordered a 15% special award against the insurer for unreasonably withholding benefits.

The applicants sought their expenses following an arbitration regarding statutory accident benefits.

The arbitrator found that the applicants were entitled to their arbitration expenses because the factual and legal issues raised were complex, novel, and significant, acting as a 'test case' for several other similar arbitrations.

The insurer's offer to settle was not given weight as it was ambiguous and made for tactical advantage rather than genuine settlement.

The insurer appealed an arbitrator's decision awarding the insured his full arbitration expenses.

The insurer had been largely successful at the arbitration and had made a qualifying offer to settle prior to the hearing.

The Director's Delegate found that the arbitrator erred in law by misapprehending the terms of the settlement offer, mistakenly believing it required the insured to give up all future benefits.

In reassessing the expenses, the Director's Delegate noted that while the insurer's offer was serious and the insurer was mostly successful, the insured's case had some merit based on the medical evidence.

The appeal was allowed in part, and the expenses award was varied to entitle the insured to two-thirds of his reasonable arbitration expenses.

The applicant sought to re-open the arbitration hearing to admit new evidence regarding whether medical assessments could be billed to OHIP.

The arbitrator treated the request as a motion.

Applying the Palmer test for the admission of new evidence, the arbitrator found that the applicant failed to meet the due diligence requirement, as the representative conceded the evidence could have been obtained prior to the hearing with greater diligence.

The motion to re-open the hearing was dismissed.

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

The insurer conceded entitlement but disputed the quantum of legal fees and expert disbursements.

The arbitrator assessed the legal fees, allowing the full time claimed by the junior lawyer who had carriage of the file, but reducing the time claimed by the senior lawyer for duplication.

The arbitrator also assessed the disbursements for various medical experts, reducing some hourly rates to the maximum allowed under Schedule F of the Dispute Resolution Practice Code, and reducing the amounts claimed for certain medical assessments and reports.

The total expenses awarded were $18,888.71.

The appeal concerned whether weekly no-fault benefits paid under s. 13 of the pre-1994 Statutory Accident Benefits Schedule were deductible from an award of general damages in a motor vehicle personal injury action.

Applying the no-double-recovery approach from prior appellate authority, the court held that deductibility depends on whether the statutory benefit is akin to the same head of loss as the damages award.

The court concluded that s. 13 benefits are more akin to damages for loss of income than to general damages because they are weekly, age-linked, coordinated with income loss benefits, and directed at those prevented from seeking employment or education.

The appeal was allowed, the Divisional Court order was quashed, and the motions judge's order was restored.

The applicant sustained a cervical spinal cord injury in a motor vehicle accident, resulting in quadriplegia.

He claimed entitlement to an increased maximum monthly attendant care benefit under section 47(6) of the Statutory Accident Benefits Schedule, arguing he also suffered a separate psychological injury (major depressive disorder) requiring additional care.

The arbitrator found that while the applicant did suffer a psychological injury as a result of the accident, the attendant care services required for this psychological impairment overlapped with the 24-hour care already required for his physical injuries.

Therefore, the applicant was not entitled to the higher maximum under section 47(6) and the insurer was obliged to pay the standard catastrophic maximum under section 47(5).

The 80-year-old applicant was injured in a motor vehicle accident and sought payment for rehabilitation treatment at a clinic.

The insurer refused to pay the full cost, disputing the frequency of treatment and the hourly fees charged.

The arbitrator found that the treatment was reasonable and necessary given the applicant's age and medical history, rejecting the insurer's suggestion that she could exercise at home.

However, the arbitrator reduced the hourly rate charged by the clinic to the market rate for kinesiologists, awarding the applicant $3,655.41 plus interest.

The applicants were injured in a motor vehicle accident and sought payment for chiropractic and rehabilitation expenses from their insurer under the Statutory Accident Benefits Schedule.

The insurer refused to pay the full amounts billed by the treatment facilities, arguing the treatments were excessive and the fees unreasonable.

The arbitrator found that the frequency and duration of treatments for the husband were excessive, while the wife's treatments were largely reasonable.

The arbitrator also significantly reduced the hourly rates and block fees charged by the facilities, finding them unsupported by professional guidelines or market rates.

The applicants were awarded partial payment of the claimed expenses plus interest, but their claim for a special award was dismissed.

The applicant was injured in a 1996 motor vehicle accident and received statutory accident benefits until the insurer terminated them.

The applicant was subsequently involved in a second accident in 1997.

The insurer argued the ongoing impairments and need for treatment were caused by the second accident.

The arbitrator found that the 1996 accident materially contributed to the applicant's ongoing physical and psychological impairments, including a herniated disc.

The arbitrator ordered the insurer to pay ongoing income replacement benefits, chiropractic and psychological treatment expenses, and a 25% special award for unreasonably withholding payment for psychological treatment.

The claim for housekeeping expenses was dismissed.

The applicant was injured in two motor vehicle accidents and sought statutory accident benefits from her insurer.

The insurer terminated income replacement benefits based on DAC assessments.

The arbitrator found that the applicant suffered a substantial inability to perform the essential tasks of her employment due to a shoulder injury and a major depressive disorder caused by the accidents.

The arbitrator awarded income replacement benefits for the disputed periods until the applicant was found to be coping and able to return to work.

Claims for massage therapy were allowed, while claims for acupuncture and disability management services were dismissed as unreasonable.

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

The applicant applied for arbitration, seeking ongoing weekly income benefits, transportation expenses, and a special award.

The arbitrator found that the applicant suffered from chronic pain and depression caused by the accident, which continuously prevented him from engaging in any suitable employment.

The arbitrator ordered the insurer to pay ongoing weekly income benefits and transportation expenses.

However, the arbitrator also ordered the applicant to repay an overpayment of income replacement benefits due to his receipt of collateral benefits, and denied the request for a special award.

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

The insurer paid income replacement benefits, but the applicant claimed entitlement to higher education disability benefits (EDBs) because she was a hairstylist apprentice at the time of the accident.

The insurer argued she was employed and thus only entitled to income replacement benefits, and alternatively, that her claim for EDBs was barred by the two-year limitation period.

The arbitrator found that the applicant's apprenticeship constituted full-time enrollment in post-secondary education, qualifying her for EDBs.

The arbitrator also held that the insurer's explanation of assessment did not constitute a clear and unequivocal refusal of benefits, so the limitation period was not triggered and the claim was not statute-barred.

State Farm appealed an arbitrator's decision awarding the respondent weekly income benefits and a special award following a motor vehicle accident.

State Farm argued the arbitrator erred in finding ongoing disability and lacked jurisdiction to order a special award because the disputed medical account was paid prior to the hearing.

The Director's Delegate dismissed the appeal, finding sufficient evidence supported the arbitrator's conclusion on disability.

Furthermore, the Delegate held that an insurer's late payment of benefits does not oust an arbitrator's jurisdiction to make a special award under section 282(10) of the Insurance Act, and that State Farm had unreasonably delayed payment by failing to follow the mandatory process for adjusting medical claims.

The insurers brought a motion to combine or hear together nine separate arbitration proceedings involving eleven applicants who received treatment from affiliated clinics.

The insurers argued the cases shared common issues regarding the reasonableness of the clinics' fees and alleged conflicts of interest.

The arbitrator dismissed the motion, finding that the cases involved distinct factual inquiries into each applicant's injuries and treatment needs, and that combining them would be unmanageable.

Instead, the arbitrator ordered that one case proceed first to provide guidance for the remaining cases, which were adjourned pending that decision.

The applicant claimed death benefits following her husband's fatal car accident.

The dispute centered on whether an ex gratia payment and a sick leave payout received by the deceased upon his retirement, within the 156 weeks preceding the accident, should be included as income for calculating the death benefit.

The arbitrator held that the purely discretionary ex gratia payment was income earned upon retirement and thus included in the calculation.

However, the sick leave payout accrued steadily throughout the deceased's employment and was not included as income within the 156-week period.

The appellant was struck by a car and received weekly benefits for a period.

After 156 weeks, the insurer terminated benefits.

The arbitrator found that while the appellant's psychiatric disorder was caused by the accident, he did not meet the strict post-156 week test of being continuously prevented from engaging in substantially all normal activities.

The appellant appealed, arguing the arbitrator defined his activities too narrowly and ignored the episodic nature of his disability.

The Director's Delegate dismissed the appeal, holding that the arbitrator's factual findings were supported by the evidence and she correctly applied the legal test.

A claim for a special award was also dismissed due to lack of evidence that the insurer withheld medical records.

The Applicant was injured in a motor vehicle accident and received income replacement benefits until he returned to modified work.

After being laid off, he brought a motion for interim benefits, alleging financial need and a breach of the benefits stoppage provisions under section 64 of the Statutory Accident Benefits Schedule.

The arbitrator dismissed the motion, finding that the Applicant's receipt of unemployment insurance benefits negated his claim of financial need.

The arbitrator also found it unclear whether section 64 applied to a consensual return to work, deferring that issue and quantum calculations to the hearing arbitrator.

A subsequent motion to reopen the hearing to admit new evidence was also dismissed.

The applicant, who suffered paraplegia in a motor vehicle accident, applied for statutory accident benefits.

The arbitrator found that the applicant was entitled to weekly income benefits post-156 weeks because her injuries continuously prevented her from engaging in substantially all of her pre-accident activities.

The arbitrator also awarded care benefits of $250 per week, finding that her husband reasonably lost this gross income in caring for her.

Claims for a new wheelchair, shower modifications, and counselling were granted as reasonable and necessary rehabilitation expenses, while claims for a new home, a modified van, and a power scooter were denied.

The applicant's request for a special award was dismissed as the insurer's conduct was not found to be unreasonable.