Jamie Robin Pollack

The Motor Vehicle Accident Claims Fund appealed a Superior Court decision that remitted an arbitration award back to the arbitrator.

The dispute arose after Kingsway cancelled an auto insurance policy for non-payment two days before an accident, leading the Fund to pay the injured party's accident benefits and seek reimbursement.

The arbitrator ordered Kingsway to pay the benefits permanently due to a breach of section 2 of O. Reg. 283/95, finding a 'significant nexus' between Kingsway and the insured.

The Superior Court held the arbitration was not under O. Reg. 283/95 because the Fund was not an 'insurer', and remitted the matter to determine if Kingsway was actually an insurer.

The Court of Appeal allowed the appeal in part, holding that the Fund is an insurer under the regulation, but upheld the decision to remit the matter to the arbitrator to determine if Kingsway was an insurer at the time of the accident.

The applicant applied for statutory accident benefits following a motor vehicle accident.

The parties reached a settlement at a pre-hearing, but the applicant failed to execute the settlement documents despite cashing the settlement cheque.

The applicant and his representative failed to attend the resumed pre-hearing or respond to communications.

The arbitrator issued a notice of intention to dismiss the proceeding without a hearing on the grounds that it is frivolous, vexatious, or commenced in bad faith.

The applicant, injured in a motor vehicle accident, sought production of the insurer's complete adjusting notes in her claim for statutory accident benefits.

The insurer refused to produce notes created after the date the applicant filed for mediation, claiming litigation privilege.

The arbitrator dismissed the motion, finding that litigation privilege applied to the adjusting records from the date of the mediation application, as legal action was imminent and the dominant purpose of the notes was preparation for conflict.

The insurer appealed an arbitrator's decision awarding interest on overdue medical benefits from 14 days after the receipt of the treatment plan.

The insurer argued that, based on previous appeal decisions, interest should only accrue from the date of the arbitrator's order because it had relied on a negative Designated Assessment Centre (DAC) report to deny the benefits.

The Director's Delegate dismissed the appeal, declining to follow the previous appeal decisions.

The Delegate held that the requirement to pay medical benefits does not depend on a positive DAC report or an arbitrator's decision, and that interest is mandatory and compensatory, flowing from a finding that benefits were payable and not paid on receipt of the required application documents.

The applicant sought production of the insurer's complete statutory accident benefits file, including adjuster notes, up to the date of his second Application for Mediation.

The insurer claimed litigation privilege over the file from the date of the first Application for Mediation in 1996.

The arbitrator found that while litigation privilege attached at the time of the first mediation, the insurer subsequently closed its file due to inactivity.

The activity on the file from when it was closed in 1997 until the second Application for Mediation in 2004 constituted adjusting the file rather than preparing for litigation.

The arbitrator ordered production of the file for that specific period.

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

The parties disputed the conversion of IRBs to loss of earning capacity benefits (LECBs) and the calculation of interest on overdue benefits.

The matter was remitted to the arbitrator to determine the date the parties agreed to convert IRBs to LECBs.

The arbitrator found that the parties agreed to the conversion on June 12, 1996, when the applicant signed an acknowledgement.

The insurer was ordered to pay interest on the LECBs as of June 10, 1996, to the extent of any deficiency between the benefits paid and the benefits ultimately found owing.

The Insurer brought a motion to address the Applicant's failure to produce documents despite an undertaking and a prior order.

The Arbitrator stayed the arbitration proceeding until the Applicant complied or made best efforts to obtain the documents.

Furthermore, the Arbitrator found that the Applicant's paralegal representative failed to understand the duties of an advocate, caused unreasonable delay, and made a spurious claim for expenses.

Consequently, the representative was excluded from the hearing pursuant to section 23(3) of the Statutory Powers Procedure Act and ordered to personally pay $300 in costs to the Insurer.

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

The applicant failed to attend the arbitration hearing or provide notice of her absence.

As the onus is on the applicant to prove entitlement to benefits and no evidence was provided, the arbitrator dismissed the claims.

The applicant was ordered to pay the insurer's arbitration expenses due to causing unnecessary costs by failing to provide notice of her non-participation.

The applicant sought statutory accident benefits following two motor vehicle accidents.

At the outset of the arbitration hearing, the applicant requested a third adjournment to fulfill outstanding production undertakings, while the insurer moved to exclude two medical witnesses and recently served documents due to late disclosure.

The arbitrator denied the adjournment, finding the applicant had failed to make reasonable efforts to comply with production requests over a two-year period.

The arbitrator also ruled the recently served documents inadmissible and excluded the medical witnesses, citing prejudice to the insurer's ability to respond to the case.

The arbitration was stayed pending the applicant's appeal of these preliminary rulings.

The appellant lessor and the lessee were both named insureds under an automobile insurance policy.

The lessee unilaterally directed the insurer to delete all coverage except fire and theft.

The vehicle was subsequently destroyed in an accident.

The insurer denied the lessor's claim on the basis that coverage had been deleted.

The Court of Appeal allowed the lessor's appeal, holding that the insurance contract provided several, not joint, coverage.

Therefore, one co-insured could not unilaterally cancel the coverage of the other without the insurer providing 15 days' prior notice and obtaining the express or implied consent of the co-insured lessor.

The applicant applied for arbitration regarding statutory accident benefits following a motor vehicle accident.

At the scheduled hearing, neither the applicant nor his representative attended.

The arbitrator dismissed the arbitration due to the applicant's non-attendance.

The insurer was awarded its reasonable expenses of the arbitration, fixed at $1,750.00, taking into account the applicant's prior costs thrown away.

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

The insurer denied a treatment plan for massage therapy based on a negative Designated Assessment Centre (DAC) report.

In a previous arbitration decision, the arbitrator found the treatment plan was reasonable and necessary, and awarded the medical benefit.

The current issue was when interest on the overdue payment started to run.

The insurer argued that based on previous appeal decisions, interest should not run until the date of the arbitration decision because of the negative DAC report.

The arbitrator distinguished the appeal decisions, finding that the DAC report was flawed and the insurer had ample evidence to support the claim.

The arbitrator held that the interest provisions are compensatory and remedial, and that interest started to run 14 days after the treatment plan was submitted to the insurer.

The insurer brought a motion to stay an upcoming arbitration proceeding until the applicant attended two insurer's examinations (physiatrist and psychiatrist).

The applicant had previously failed to attend scheduled examinations.

The arbitrator found the requested examinations were reasonably necessary and the applicant had no reasonable excuse for non-attendance.

The arbitration was stayed until the applicant made himself available for the examinations.

The insurer was also ordered to produce its accident benefits file to the applicant.

The insurer appealed an arbitration decision regarding the calculation of the insured's income replacement and loss of earning capacity benefits following a motor vehicle accident.

The Director's Delegate upheld the Arbitrator's findings that the employer's pension contributions were not taxable for the purpose of calculating pre-accident income, and that the tax rate on deductible long-term disability benefits should be based on the insured's total post-accident income.

However, the Director's Delegate allowed the appeal in part, finding that post-accident employee benefits paid by the employer constituted an income continuation plan and were therefore deductible collateral benefits.

The issue of interest on overdue benefits was remitted to the Arbitrator to determine the exact date the benefits were converted.

The appellant insurer appealed a Divisional Court decision which found that the insurer's notice cancelling the insured's weekly income benefits was inadequate to trigger the two-year limitation period.

The Court of Appeal allowed the appeal, finding that the Director's Delegate had applied the correct 'clear and unequivocal' test for the notice.

Furthermore, the Court held that the Divisional Court erred in requiring the reasons for cancellation to be legally correct under section 24(8) of the Statutory Accident Benefits Scheme; the reasons merely need to be provided to allow the insured to decide whether to challenge the cancellation.

The applicant sought payment of $763.41 for an in-home assessment conducted following a motor vehicle accident.

The insurer refused to pay because the assessment was conducted before the applicant requested or obtained the insurer's approval, contrary to section 24(1.1) of the Statutory Accident Benefits Schedule.

The arbitrator dismissed the application, finding that the clear language of section 24(1.1) provides a complete defence for the insurer when an expense is incurred prior to obtaining approval.

The applicant sought statutory accident benefits, claiming she was injured in a rear-end collision.

The applicant and her representative failed to attend the arbitration hearing.

The insurer presented expert forensic engineering evidence demonstrating that the physical damage to the vehicles was inconsistent with a collision having occurred.

The arbitrator accepted the expert evidence, found that no accident occurred, dismissed the claim for benefits, and ordered the applicant to pay the insurer's arbitration expenses.

The applicant was injured in a motor vehicle accident and sought caregiver and housekeeping benefits.

The insurer brought a preliminary issue arguing the applicant was barred from proceeding to arbitration under section 32 of the Statutory Accident Benefits Schedule because she did not submit her expense forms until nearly a year after receiving the application package.

The arbitrator found that the applicant had provided sufficient information to notify the insurer of her claims in a timely fashion.

Furthermore, the insurer failed to inform the applicant of the consequences of failing to provide the requested information, precluding it from relying on the time limit to defeat her claims.

The preliminary issue was resolved in favour of the applicant.

The applicant was involved in a motor vehicle accident and delayed applying for statutory accident benefits for several months, hoping to recover without going through the claims process.

The insurer raised a preliminary issue that the applicant was disentitled to benefits for failing to apply within the 30-day time limit under section 32(1) of the Statutory Accident Benefits Schedule.

The Arbitrator found that the insurer, having been notified of the accident, failed to promptly inform the applicant of the time limit and the potential consequences of non-compliance, which is required to assist the person in applying for benefits under section 32(2)(c).

Therefore, the insurer could not rely on the time limit to defeat the claim, and the applicant was not disentitled to benefits.

The applicant applied for arbitration after the insurer terminated her weekly caregiver benefits following a motor vehicle accident.

The applicant failed to appear at the arbitration hearing.

Consequently, the arbitrator dismissed the application for arbitration.

The insurer was awarded its expenses for the arbitration proceeding in the amount of $5,436.59.