Ian Kirby

The appellants appealed a motion judge's decision finding that the Crown could not be compelled to answer questions on an examination for discovery in an action brought under the Public Transportation and Highway Improvement Act.

The Divisional Court dismissed the appeal, affirming binding Court of Appeal precedent that the Crown's privilege to refuse discovery can only be taken away by express statutory words.

The court also rejected the argument that the Crown had attorned to the court's jurisdiction for discovery purposes by defending the action and voluntarily participating in some discovery.

The applicant sought to rescind a settlement agreement reached with the respondent insurer regarding statutory accident benefits arising from two 1996 motor vehicle accidents.

The applicant argued the settlement was invalid because the Settlement Disclosure Notice failed to include the commuted value of attendant care benefits, as required by s. 9.1 of Regulation 664.

The Tribunal found that res judicata did not apply from prior proceedings.

However, the Tribunal held the settlement was valid because the applicant had not claimed attendant care benefits at the time of settlement, making it impossible and unnecessary for the insurer to provide a commuted value for a benefit with a quantum of zero.

The application was dismissed.

The applicant requested a reconsideration of a preliminary issue decision that barred her claims for attendant care, housekeeping/home maintenance benefits, and transportation expenses.

The Tribunal found that the applicant was attempting to reargue the issue regarding the full and final release for the attendant care and housekeeping benefits.

For the transportation expenses, although the parties agreed no binding settlement was reached, the Tribunal found the claim was time-barred under s. 56 of the Statutory Accident Benefits Schedule as it was brought more than two years after the denial.

The request for reconsideration was dismissed.

This is an appeal from an arbitration decision concerning a priority dispute between two insurers, Allstate and Intact, regarding statutory accident benefits for Ming Wu Yan.

The central issue was whether Yan was "principally dependent for financial support or care" on her daughter or son-in-law, which would make her an insured person under Allstate's policy.

The court upheld the arbitrator's finding that Yan was principally financially dependent, dismissing Allstate's appeal.

The court affirmed the arbitrator's decision not to impute monetary value to Yan's caregiving services and to exclude her foreign pension income, which was unavailable in Canada, from the dependency analysis.

The court also confirmed that the test for financial dependency requires a holistic "big picture" approach, not solely a mathematical calculation.

Following a jury verdict in a statutory accident benefits action, the court determined post‑trial issues concerning transportation expense deductibles, interest on overdue benefits, and costs.

The insurer argued that the statutory 50‑kilometre deductible applied to transportation expenses and sought to call additional evidence, but the court refused and held the deductible did not apply because the insurer had waived it and the insured was unable to drive during the relevant period.

On the issue of interest under the Statutory Accident Benefits Schedule, the court applied appellate authority holding that interest on overdue benefits runs from the date the benefit first became overdue, even if the insurer did not know the correct amount at the time.

The court also considered competing offers to settle and concluded that the plaintiff was the successful party overall.

Costs were awarded to the plaintiff on a partial indemnity basis.

The applicant sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario, which upheld an arbitrator's dismissal of her claims for statutory accident benefits following a motor vehicle accident.

The applicant argued procedural unfairness, errors in calculating income for income replacement benefits, and failure to consider a treatment plan.

The Divisional Court applied the reasonableness standard of review and found no error in fact or law, nor any breach of natural justice.

The application for judicial review was dismissed.

The applicant was injured in a motor vehicle accident and received income replacement benefits for two years.

The insurer terminated benefits based on an orthopaedic surgeon's opinion that the applicant could work, despite contrary evidence from its own vocational expert and the applicant's treating physicians.

The arbitrator found the insurer's reliance on the surgeon's opinion to be unreasonable and a breach of its duty of good faith.

The arbitrator awarded a special award of 40% of the outstanding benefits and interest, noting the applicant's vulnerability and the foreseeable harm caused by the termination.

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

In a prior decision, the applicant achieved mixed success, recovering approximately $7,000 in medical benefits but failing on claims for income replacement and other expenses.

The arbitrator considered the criteria under section 12 of Ontario Regulation 664 to determine entitlement to arbitration expenses.

Finding that both parties had prolonged the proceedings at different stages and that success was divided, the arbitrator ordered that each party bear its own expenses.

The Applicant was injured in a motor vehicle accident and sought statutory accident benefits, including income replacement benefits (IRBs), medical and rehabilitation benefits, and the cost of assessments.

The arbitrator dismissed the claim for IRBs, finding the Applicant's evidence regarding his pre-accident employment to be unreliable and contradictory.

The claims for medication and assessment costs were also dismissed as they were either unrelated to the accident or not reasonable and necessary.

However, the arbitrator ordered the Insurer to pay $7,028.58 for physical therapy services because the Insurer failed to provide timely notice of its refusal to pay for the treatment plans as required by section 38 of the Statutory Accident Benefits Schedule.

The applicant was injured in a motor vehicle accident and sought income replacement benefits, medical and rehabilitation benefits (including a Tempur mattress and a lightweight laptop), and a neuropsychological re-assessment.

The arbitrator found that the applicant did not suffer a substantial inability to perform the essential tasks of her pre-accident employment, as she continued to work and earn similar income post-accident.

The claims for the mattress, laptop, and re-assessment were dismissed as they were not proven to be reasonable and necessary.

The insurer's claim for repayment of advances was also dismissed due to lack of proper notice within the 12-month limitation period.

The appellant appealed a judgment following a jury verdict.

The Court of Appeal found ample evidence to support the trial judge's ruling that the appellant was voluntarily unemployed as of September 1993.

Finding no basis to interfere with the jury's verdict, the court dismissed the appeal and awarded costs to the respondent.

The applicant sustained a severe brain injury in a motor vehicle accident and required long-term care in a nursing home.

She sought payment from her insurer for chronic care co-payments, ongoing and retroactive attendant care, rehabilitation services, and a special award.

The arbitrator held that the insurer was primarily responsible for paying the long-term care accommodation fees under the Statutory Accident Benefits Schedule, subject to deductions for the applicant's low-income subsidy.

The arbitrator awarded ongoing and retroactive funding for a community support worker to reduce the applicant's social isolation, as well as funding for a case manager and specific therapy assessments.

A special award of $10,000 was ordered against the insurer for unreasonably withholding the co-payments and misrepresenting its obligations under the Schedule.

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

The insurer terminated his income replacement benefits after he returned to work in a modified capacity.

The applicant applied for arbitration almost four years after the initial notice of termination.

The insurer argued the application was barred by the two-year limitation period under subsection 281(5) of the Insurance Act.

The arbitrator found that the insurer failed to comply with the mandatory notice requirements under sections 64 and 71 of the Statutory Accident Benefits Schedule when it stopped paying benefits.

Because the insurer did not provide proper notice of the right to dispute, the limitation period did not begin to run.

The applicant was not precluded from proceeding to arbitration.

The applicant was injured in a motor vehicle accident and received weekly income benefits until August 1994.

The insurer argued the applicant's request for arbitration was time-barred under subsection 281(5) of the Insurance Act, relying on an Assessment of Claim form dated July 26, 1994 as its notice of refusal.

The arbitrator found the form did not satisfy the requirements of subsection 24(8) of the Statutory Accident Benefits Schedule because it was self-contradictory, stating the claim was 'accepted in its entirety' while also referencing a final settlement, and failed to provide clear reasons for refusal.

Consequently, the limitation period was not triggered, and the applicant was permitted to proceed to arbitration.

The applicants, parents of a man fatally injured in a motor vehicle accident, claimed death benefits from the insurer.

The insurer denied the claim, arguing it was incomplete and submitted late under subsection 59(3) of the Statutory Accident Benefits Schedule.

The arbitrator found that the application submitted by the applicants' former solicitor did not sufficiently indicate a claim for death benefits, but rather focused on funeral expenses and a Family Law Act claim.

As the applicants did not argue a reasonable excuse for the delay, the insurer was entitled to rely on subsection 59(3) to deny the claim.

The applicants were awarded their expenses for the hearing.

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

The insurer terminated weekly income benefits, and the applicant sought ongoing income benefits, supplementary medical and rehabilitation benefits, care benefits, and a special award.

The insurer claimed a repayment of overpaid benefits due to an alleged calculation error and the applicant's receipt of CPP disability benefits.

The arbitrator found that the applicant failed to establish that her ongoing back problems were caused by the accident, given her pre-existing degenerative disc disease and prior injuries.

Consequently, claims for ongoing income, medical, and care benefits were dismissed.

The arbitrator determined the correct weekly income benefit rate and ordered the applicant to repay $16,540.54 for overlapping CPP benefits, but denied the insurer's claim for repayment based on 'error,' finding the insurer had deliberately chosen its calculation method.

The applicant's claims for a special award and arbitration expenses were dismissed.

The appellant appealed an arbitrator's order allowing the respondent insurer to set off an award of arbitration expenses against an overpayment of statutory accident benefits owed by the appellant.

The appellant argued that the arbitrator lacked jurisdiction to order a set-off because it required the exercise of equitable jurisdiction.

The Director's Delegate dismissed the appeal, finding that the authority to order a set-off arises by necessary implication from the dispute resolution provisions of the Insurance Act, allowing the arbitrator to determine the ultimate balance to be paid between the parties.

In an assessment of expenses following an arbitration where the applicant was unsuccessful, the arbitrator determined the appropriate quantum of costs payable by the insurer.

The arbitrator ruled that the applicant's former counsel had standing to represent her at the assessment, as any expenses awarded were subject to a court order requiring payment into court.

The arbitrator held that while the Legal Aid Tariff sets maximum hourly rates, arbitrators may also consider Tariff A under the Rules of Civil Procedure when assessing the reasonableness of hours claimed.

The applicant was awarded $6,288.40 in fees and disbursements, including reduced allowances for expert medical reports.

The appellant appealed an arbitration order that terminated his weekly income benefits, ordered him to repay $16,233.06 in overpaid benefits, and required him to pay the insurer's $1,000 assessment fee.

On appeal, the appellant sought to introduce new evidence regarding his pre-accident employment and challenged the arbitrator's credibility findings and preference for the insurer's medical experts.

The Director's Delegate dismissed the appeal, denying the admission of new evidence because it could have been obtained with due diligence and would not have affected the outcome.

The Delegate found no basis to interfere with the arbitrator's findings of fact, credibility assessments, or the conclusion that the appellant deliberately misled the insurer about his employment.

The applicant sought an extension of time to appeal an arbitration decision that dismissed his claim for weekly income benefits.

The applicant's agent had failed to present evidence at the original hearing after an adjournment request was denied.

The applicant subsequently retained a lawyer who filed the notice of appeal 80 days after the decision was issued, well beyond the 30-day statutory limit.

The Director's Delegate considered whether there were reasonable grounds for the delay and apparent grounds for granting the extension.