James M. Brown

The plaintiff municipality brought a motion to compel the defendant engineering firm to produce a Risk Management Report and answer questions refused at cross-examination.

The defendant argued the report was protected by litigation and common law privilege.

The court found the report was relevant to the issue of discoverability, as the plaintiff alleged the defendant acted in a conflict of interest by reassuring it about the quality of work.

The court held the report was not protected by litigation privilege because it was not prepared for the dominant purpose of litigation, nor was it protected by common law privilege as it did not meet the Wigmore criteria.

The motion was granted.

The applicant was injured in a motor vehicle accident and claimed attendant care and housekeeping benefits for services provided by his former wife, daughter, and a lawn care company.

The insurer denied the claims on the basis that the caregivers did not sustain an 'economic loss' as required by s. 3(7)(e) of the Statutory Accident Benefits Schedule.

A FSCO arbitrator and Director's Delegate upheld the denial, finding that mere loss of time did not constitute an economic loss.

On judicial review, the Divisional Court held that the standard of review was reasonableness, despite the concurrent jurisdiction of courts and arbitrators under the Insurance Act, and found the Delegate's interpretation of 'economic loss' as requiring a financial or pecuniary loss to be reasonable.

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

The insurer denied income replacement benefits and housekeeping expenses on the basis that the applicant was driving with a suspended licence at the time of the accident, triggering the exclusion under section 30(1)(b) of the Schedule.

The applicant argued he was unaware of the suspension and raised a due diligence defence, claiming he had given his stepson money to pay his traffic fines.

The arbitrator found the applicant failed to establish due diligence, as he took no steps to verify the fines were paid or to appeal his subsequent conviction.

The arbitrator also determined she lacked jurisdiction to grant relief from forfeiture under the Insurance Act or the Courts of Justice Act.

The applicant was precluded from proceeding to arbitration for the disputed benefits.

The appellant insurer appealed an arbitrator's preliminary decision staying the arbitration on the basis that the self-represented respondent lacked the mental capacity to proceed.

The Director's Delegate found that the arbitrator breached procedural fairness by failing to provide notice or hold a hearing on the specific preliminary issue of the respondent's capacity, as required by Rule 10 of the Dispute Resolution Practice Code.

The arbitrator's order was rescinded and the matter remitted for a new hearing on the respondent's capacity.

The insurer brought a motion to stay the scheduled arbitration proceedings pending the claimant's participation in an insurer's examination by an occupational therapist.

The claimant had recently submitted an addendum report indicating a substantial increase in her attendant care needs due to new symptoms, including blackouts.

The arbitrator granted the motion, finding that procedural fairness required the insurer to have an opportunity to re-assess the claimant's attendant care needs in light of the new developments before proceeding to arbitration.

The insurer brought a motion to stay the arbitration on the grounds that the insured refused to attend a proposed in-home occupational therapy assessment as part of its catastrophic impairment assessment process.

The arbitrator dismissed the motion, finding that the insurer failed to demonstrate that the further assessment was reasonably necessary under section 44 of the Statutory Accident Benefits Schedule.

The insurer's neuropsychologist had access to numerous existing occupational therapy reports and failed to provide a credible explanation for why a new assessment was required.

Furthermore, the arbitrator held that even if the assessment were necessary, a stay would not be the appropriate remedy, as the insurer failed to establish irreparable harm or that the balance of convenience favoured a stay.

The appellant was injured in a motor vehicle accident and claimed statutory accident benefits for attendant care and housekeeping services provided by his separated wife, daughter, and a lawn care company.

The insurer denied the claims on the basis that the expenses were not 'incurred' under section 3(7)(e) of the 2010 SABS because the family members did not sustain an economic loss.

The Director's Delegate upheld the Arbitrator's decision, finding that the appellant failed to prove the family members suffered an economic loss, such as lost income or out-of-pocket expenses, as a result of providing the services.

The appeal was dismissed.

The appellant insurer sought to appeal an arbitrator's preliminary order staying the arbitration after the arbitrator found the self-represented respondent lacked the mental capacity to proceed.

The Director's Delegate accepted the appeal at this time, restricted to the issue of whether the arbitrator erred in law in the procedure followed to determine the respondent's mental capacity.

The Delegate found strength in the insurer's argument that the procedure may have lacked fairness, as there was no formal notice of a capacity hearing and the determination was made without medical evidence.

The Delegate also admitted correspondence between the arbitrator and the Public Guardian and Trustee as fresh evidence.

The applicant sought attendant care and housekeeping benefits following a motor vehicle accident, claiming services were provided by family members and a lawn care company.

The insurer denied the claims on the basis that the expenses were not 'incurred' under section 3(7)(e) of the Schedule because the family members did not sustain an economic loss and the lawn care company did not provide services in the course of its ordinary employment.

The arbitrator rejected the applicant's expert economic evidence that 'economic loss' includes mere loss of time or opportunity, finding it must relate to a financial or monetary loss.

The arbitrator concluded the family members failed to prove any economic loss and dismissed the claims for benefits and a special award.

The moving party insurer sought summary judgment dismissing a claim by another insurer seeking indemnity for statutory accident benefits paid to an insured injured in two separate motor vehicle accidents.

The responding insurer alleged that the moving party remained responsible for benefits arising from the earlier accident and should contribute to benefits paid following the second accident.

The motion raised issues concerning the interpretation of the Insurance Act, the Statutory Accident Benefits Schedule, the Disputes Between Insurers regulation, and limitation periods.

The court held that the evidentiary record was insufficient to determine causation between the accidents, the applicability of statutory limitation periods, and whether an equitable cause of action for indemnity existed.

Given the novel legal issues and gaps in the evidentiary record, summary judgment was inappropriate and the matter should proceed to trial.

The insurer sought its expenses following a successful defence of the applicant's claims for statutory accident benefits.

The arbitrator found that the insurer was entitled to its expenses because it was completely successful, there were no novel issues, and the applicant's conduct hindered and prolonged the proceedings.

The insurer claimed $23,976.78, but the arbitrator fixed the expenses at $10,000, noting that the matter was not complex and the insurer was unsuccessful in a previous motion to dismiss.

The applicant's paralegal firm brought a motion to be removed as the representative of record due to a breakdown in the representative and client relationship.

The arbitrator granted the motion, finding that the applicant had lost confidence in the firm and terminated their retainer.

The arbitrator also denied a further adjournment of the pending expense hearing, noting that the applicant had failed to participate or respond to the insurer's submissions despite receiving notice.

The applicant was injured in a motor vehicle accident and claimed statutory accident benefits for caregiving, attendant care, housekeeping, and a psychological assessment.

The insurer denied the claims.

The arbitrator found the applicant's testimony unreliable and preferred the clinical notes of his family physician, which showed a significant pre-accident history of kidney stones and narcotic drug dependence.

The arbitrator concluded the applicant was not substantially disabled from his pre-accident activities shortly after the accident and was not the primary caregiver of his children.

The claim for the psychological assessment was denied because the application form did not meet the statutory screening requirements and the assessment relied on inaccurate pre-accident history.

All claims, including a claim for a special award, were dismissed.

The appellant insurer appealed an arbitrator's decision awarding interest on dependant death benefits to the respondents.

The parties agreed that the arbitrator erred in law by finding the respondents directly dependent on the deceased, rather than dependent on the deceased's spouse.

The Director's Delegate rescinded the arbitrator's orders regarding the respondents' entitlement to interest and a special award.

The issue of the respondents' entitlement to interest was remitted to arbitration for a new hearing to determine whether the respondents' own actions prevented the insurer from assessing their entitlement, which would trigger an exception to the mandatory interest provision.

The appellant's appeal regarding income replacement benefits was previously dismissed.

The respondent sought its appeal expenses.

The Director of Arbitrations ordered the self-represented appellant to pay the respondent's appeal expenses fixed at $3,037.33, noting the respondent's complete success on appeal and an early offer to settle on a without-costs basis.

The insurer appealed an arbitration decision awarding the claimant ongoing income replacement benefits, housekeeping benefits, assessment expenses, and a special award under the SABS-1996.

The Director's Delegate dismissed the appeal on the merits, finding no error in the arbitrator's preference for the claimant's medical and lay evidence over the insurer's experts.

The arbitrator's finding that the insurer unreasonably terminated benefits based on an incomplete functional abilities evaluation, justifying a special award, was also upheld.

The appeal was allowed in part only to revoke an inadvertent order regarding arbitration expenses.

The appellant, a self-employed individual operating two computer businesses, appealed an arbitrator's decision regarding the calculation of his income replacement benefits following a motor vehicle accident.

The appellant argued the arbitrator erred by treating his two businesses as a single entity, which reduced his benefit amount.

The Director's Delegate dismissed the appeal, finding the arbitrator correctly applied a functional approach that preferred substance over form, as the businesses operated from the same office, shared expenses, and functioned as a single enterprise.

The Delegate also rejected the appellant's argument that he was entitled to receive both his base benefit rate and the $185 minimum weekly benefit concurrently after 104 weeks.

Following an arbitration hearing where the applicant was awarded approximately $15,000 in income replacement benefits and interest, the parties made submissions on expenses.

The insurer argued the applicant had limited success and should not receive expenses.

The arbitrator found the applicant had a significant degree of success and awarded the applicant his legal expenses fixed at $2,825.55.

The applicant was injured in a motor vehicle accident and claimed income replacement benefits (IRBs) from his insurer.

The parties disputed the quantum of the IRBs, specifically regarding the calculation of the applicant's self-employment income and post-accident business losses from two sole proprietorships.

The arbitrator rejected the applicant's accounting approach, which treated the two businesses as distinct and allocated all expenses to one, finding it would result in overcompensation.

The arbitrator determined the base IRB and awarded additional IRBs for post-accident losses during a reasonable six-month winding-down period for one of the businesses.

The arbitrator also awarded interest on overdue payments, finding the insurer failed to pay the established losses in a timely manner.

The applicant, a self-employed hairstylist, was injured in a motor vehicle accident and sought statutory accident benefits.

The insurer terminated his income replacement and housekeeping benefits.

The arbitrator found that the insurer's termination of the income replacement benefit was fatally flawed because it relied on a functional abilities evaluation that had not actually been conducted at the time of termination.

The applicant was awarded pre-104 week income replacement benefits, as his chronic pain substantially disabled him from performing the essential tasks of his employment, though he did not meet the post-104 week test of complete inability to engage in any suitable employment.

The arbitrator also awarded housekeeping and home maintenance benefits, the cost of an in-home assessment, and a special award of $2,000 against the insurer for unreasonably relying on the flawed termination notice.