John P. Desjardins

The applicant claimed accident benefits following a rear-end collision.

The insurer denied the claim, alleging the accident was staged and citing suspicious factors including the parties' shared ethnic background.

At arbitration, both parties presented accident reconstruction experts whose evidence the arbitrator rejected as unreliable.

However, based on the consistent testimony of the applicant and his passenger, supported by physical evidence such as paint transfer and airbag deployment, the arbitrator found the accident did occur.

The applicant's claim for a special award under s. 282(10) of the Insurance Act was dismissed; although the arbitrator condemned the insurer's consideration of race as a suspicious factor, he found the insurer had principally and reasonably relied on its expert's opinion to deny the claim.

The appellants brought a motion to compel the respondent insurer to pay for the transcripts of the arbitration hearing, arguing they were impecunious and the transcripts were necessary for their appeal.

The Director's Delegate dismissed the motion, finding that while the appellants could not afford the transcripts, they failed to demonstrate that the transcripts were necessary for the conduct of the appeal, which is restricted to questions of law, or that they would be unable to proceed without them.

The insurer sought an order to videotape the examination of three expert witnesses to preserve their evidence regarding the cause of an infant's injuries, as the limitation period for the infant to sue would not expire until 2021.

The motion judge granted the order relying on the court's inherent jurisdiction and the Rules of Civil Procedure.

The Court of Appeal allowed the insured's appeal, holding that Rule 36.01 does not authorize the preservation of evidence before an action is commenced, and section 146 of the Courts of Justice Act cannot be used to create such jurisdiction where the Rules intentionally restrict it to existing proceedings.

The insurer sought an order to preserve the evidence of three expert witnesses regarding the cause of an infant's injuries, anticipating a future motor vehicle accident claim.

Because the infant's limitation period extended to 2021, the insurer feared the experts might become unavailable.

The application judge granted the order under Rule 36.01 and s. 146 of the Courts of Justice Act.

The Court of Appeal allowed the insured's appeal, holding that Rule 36.01 only applies after a proceeding has been commenced, and s. 146 cannot be used to create jurisdiction where none exists.

The insurer appealed an arbitration decision finding that the claimant was involved in a motor vehicle accident, arguing the accident was staged.

The insurer relied on expert accident reconstruction evidence and testimony from the other vehicle's owner, who claimed she gave her keys to someone to arrange a fictitious accident.

The Director's Delegate dismissed the appeal, holding that the Arbitrator's factual findings were supported by evidence.

The Arbitrator committed no error of law in concluding that the claimant's memory may have been affected by trauma and the lapse of time, and in finding no evidence that the claimant participated in a conspiracy to stage the accident.

The applicant sought statutory accident benefits following an alleged motor vehicle accident.

The insurer terminated benefits, arguing that the accident was staged and did not occur as described.

The arbitrator heard evidence from the applicant, the owner of the other vehicle (who testified her car was used by someone else in a fraudulent scheme), and a forensic engineering expert retained by the insurer.

The arbitrator found the applicant's testimony credible despite minor inconsistencies and expert evidence suggesting different collision mechanics.

The arbitrator concluded that the applicant was involved in a genuine collision and did not participate in staging the accident.