John D. Dean

The applicant requested a reconsideration of a decision that found him catastrophically impaired but denied post-104 income replacement benefits, attendant care, housekeeping, and a special award.

The applicant argued the denial of these benefits was logically inconsistent with the catastrophic impairment finding.

The adjudicator dismissed the request, finding no significant errors of law or fact in the original decision.

The adjudicator held that the applicant's psychological impairments, which warranted the catastrophic designation, did not preclude him from performing his pre-accident casual work, and that the attendant care and housekeeping benefits were properly denied as they were not incurred.

The applicant was injured in a bicycle-motorcycle collision and sought various statutory accident benefits, including a determination of catastrophic impairment (CAT).

The Licence Appeal Tribunal found that the applicant sustained a catastrophic impairment due to a marked impairment in the adaptation domain resulting from psychological and behavioural disorders.

However, the Tribunal dismissed the applicant's claims for post-104 week income replacement benefits, finding he did not suffer a complete inability to work.

Claims for attendant care and housekeeping benefits were also dismissed because the applicant failed to prove his father, the service provider, suffered an economic loss.

A claim for a special award was denied as the insurer did not unreasonably withhold benefits.

The applicant sought medical and rehabilitation benefits for neck and lower back impairments following a motor vehicle accident.

The respondent denied the benefits, arguing the impairments arose from a post-accident drug overdose and assault.

The Tribunal found that the applicant's ongoing chronic pain was causally linked to the accident, noting pre-existing spinal disease and a spinal displacement identified immediately post-accident.

The Tribunal approved the chronic pain assessment and program as reasonable and necessary, along with applicable interest, but denied the requested physiotherapy and physiatry assessment as duplicative.

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

After his legal representative was removed, the applicant failed to appear at a resumption of a pre-hearing discussion and subsequently failed to appear at the scheduled arbitration hearing, despite being properly served with notice.

The arbitrator dismissed the application for arbitration as the applicant failed to meet the burden of proving his claim.

In a costs endorsement following motions brought by co-defendants, the court held that a responding defendant was entitled to recover costs from the unsuccessful moving defendants because her participation was reasonable and directly engaged her vital interests.

The court declined to award costs against an insurer whose stay motion concerned only the contractual claim between it and the plaintiff.

Applying the principles that costs generally follow the event and must remain fair, reasonable, and proportionate, the court reduced the hours claimed and fixed costs on a partial indemnity basis.

Costs of $1,921.00 inclusive of HST were awarded against the moving co-defendants only.

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

The applicant failed to appear at the pre-hearing and the scheduled arbitration hearing, and had not communicated with his counsel or the Commission for months.

Counsel's request to be removed from the record was granted.

The insurer's request to dismiss the arbitration on a without costs basis was granted due to the applicant's failure to appear and provide instructions.

The applicant insurer paid its $200,000 policy limits to the plaintiffs in a motor vehicle accident claim against its insured.

The insurer then brought an application for a declaration that it had no continuing duty to defend the insured.

The court dismissed the application, finding that while the Standard Automobile Policy contains ambiguities regarding defence costs, section 245(b) of the Insurance Act clearly requires the insurer to bear the cost of defending the insured without any limitation tied to the policy limits.

The insurer appealed an application judge's decision declaring it had a duty to defend the insureds (a mother and her son) in two actions arising from a motor vehicle accident.

The son, a G2 driver, had a blood alcohol concentration greater than zero at the time of the accident, prima facie contravening s. 6(1) of O. Reg. 340/94.

The insurer denied coverage based on a statutory condition prohibiting operation by an unauthorized driver.

The Court of Appeal dismissed the appeal, upholding the application judge's findings that s. 6(1) is a strict liability offence, that the son had a reasonable belief his blood alcohol was zero after sleeping for several hours, and that the mother did not know or ought to have known her son was unauthorized to drive when she permitted him to use her vehicle.

The applicant sought expenses following an arbitration decision in which he was partially successful in his claims for statutory accident benefits.

The insurer argued that the parties should bear their own expenses or that the applicant should pay the insurer's expenses, relying on a $10,000 settlement offer.

The arbitrator reviewed the criteria under section 12 of O. Reg. 664 and the history of the expenses regime.

The arbitrator found that the applicant's limited success was materially greater than the settlement offer, which also required a full and final release.

The arbitrator awarded the applicant his reasonable expenses, reducing the claimed amounts for legal fees and disbursements, resulting in an award of $12,261.55 inclusive of GST.

The appellant appealed an arbitrator's decision denying her claims for income replacement benefits, medical and rehabilitation benefits, and housekeeping expenses following a motor vehicle accident.

The Director's Delegate dismissed the appeal, finding that the arbitrator's decision was well-reasoned and supported by the evidence, particularly the DAC reports which contradicted the appellant's expert.

Furthermore, the Director's Delegate ordered the appellant's representative to personally pay the respondent's appeal expenses of $3,000, finding that the representative pursued the appeal to validate an assessment method for his own personal agenda, thereby causing expenses to be incurred unreasonably.

Following a decision on statutory accident benefits, both parties sought their expenses of the arbitration.

The applicant had achieved partial success on her claims for caregiver, housekeeping, and treatment benefits, while the insurer successfully defended the novel claim for dynamic motion imaging (DMX).

The arbitrator found that the novelty and importance of the DMX issue justified bringing the matter to a hearing, balancing out the fact that the applicant's recovery approximated the insurer's settlement offer.

Accordingly, the arbitrator ordered that each party bear their own expenses.

The applicant was injured in a motor vehicle accident and sought income replacement and housekeeping benefits from his insurer.

The insurer terminated benefits, arguing the applicant failed to attend an insurer's examination and was no longer disabled.

The arbitrator found the applicant had a reasonable excuse for missing the examination due to confusing correspondence and language barriers.

The arbitrator awarded income replacement benefits for the initial period and up to February 17, 2004, finding insufficient evidence of disability beyond that date, as the applicant's leg numbness was likely a benign condition.

Housekeeping benefits were awarded at a reduced rate of $20 per week based on an in-home assessment, as the applicant's evidence regarding his pre-accident housekeeping was vague and unsupported.

The appellants appealed a trial judgment dismissing their insurance claim against Pembridge for late reporting and awarding only $4,000 in damages against their neighbours, the Aguiars, for nuisance causing water damage.

The Court of Appeal upheld the dismissal against Pembridge, finding the trial judge reasonably concluded the appellants breached the policy by reporting the claim four months late.

However, the Court allowed the appeal regarding damages against the Aguiars, finding the trial judge misapprehended evidence about standing water.

The Court reassessed damages at $12,500.

The appellant appealed an arbitrator's decision denying her claim for a digital motion x-ray (DMX) expense and failing to address her claim for a special award following a motor vehicle accident.

The Director's Delegate upheld the arbitrator's finding that the DMX test was not reasonable or necessary under section 24 of the Statutory Accident Benefits Schedule, as it was conducted long after treatment ceased and was too remote from any potential benefits.

The Delegate varied the order to explicitly dismiss the claim for a special award, finding no evidence of insurer misconduct to justify it.

The appeal was otherwise dismissed.

Following an arbitration decision regarding statutory accident benefits where the applicant achieved mixed success, both parties claimed entitlement to their expenses of the arbitration proceeding.

The arbitrator considered the criteria under section 12(2) of O. Reg. 664/90.

Finding that the applicant was successful on some claims but failed on others, the arbitrator concluded that the arbitration resulted in mixed success.

As no other criteria applied to the advantage of one party over the other, the arbitrator ordered that each party bear their own expenses.

The applicant's claims for statutory accident benefits were previously dismissed after he failed to attend the arbitration hearing.

The insurer sought its expenses for the proceeding.

The arbitrator found that the insurer was entirely successful, the applicant's failure to attend delayed the proceedings, and the insurer's second attendance was unnecessary.

Applying the criteria under Regulation 664, the arbitrator ordered the applicant to pay the insurer's legal fees and disbursements totaling $2,601.55.

The applicant was injured in a low-speed motor vehicle accident and sought statutory accident benefits for chiropractic and massage treatment.

The insurer refused to pay for one year of treatment, arguing it was not reasonable or necessary.

The arbitrator dismissed the application, finding the applicant's evidence of accident-related pain unreliable due to his pre-accident medical history and pre-occupation with his health.

The arbitrator rejected the opinions of the applicant's chiropractors, citing methodological flaws, deficient record-keeping, and a failure to consider the applicant's full medical history.

The arbitrator accepted expert evidence that the applicant would benefit more from cognitive therapy and an exercise program rather than ongoing passive physical therapy.

The applicant, who was unrepresented, appeared at the arbitration hearing after previously losing contact with his former counsel and the insurer.

The insurer requested an adjournment to prepare for a contested hearing, as it had been under the impression the applicant intended to withdraw the application.

The arbitrator granted the adjournment, setting peremptory hearing dates for July 2006.

The applicant was ordered to comply with previous production orders and to pay the insurer $500 for expenses related to the attendances, payable in any event of the cause but not due until the resolution of the arbitration.

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

The arbitrator found that the applicant did not meet the test for IRBs, as medical evidence indicated she was not substantially unable to perform her work tasks.

Claims for treatment at Four Winds were denied due to unreliable invoices, while palliative treatment at Gateway was approved only up to August 2004, after which active rehabilitation should have commenced.

Housekeeping benefits were partially awarded.

Claims for expensive chiropractic assessments were denied as premature and excessive.

A claim for a special award was dismissed, but interest was awarded on overdue amounts.

The applicant sustained soft tissue injuries in a rear-end motor vehicle collision and sought statutory accident benefits, including caregiver benefits, housekeeping expenses, medical rehabilitation, and the cost of a digital motion x-ray (DMX).

The insurer denied the claims, arguing the applicant's injuries should have resolved within normal healing times.

The arbitrator found the applicant suffered a substantial inability to perform her pre-accident caregiver and heavier housekeeping duties for a limited period, awarding reduced amounts due to exaggerated claims.

The arbitrator also awarded partial medical and rehabilitation benefits, finding the applicant's pre-existing poor posture delayed her recovery beyond the standard guidelines.

The claim for the DMX test was dismissed, as the technique lacked general diagnostic approval in Canada, the expert promoting it lacked independence, and the test was conducted too remotely from the applicant's treatment period to be considered a reasonable expense.