Judith A. Hull

The applicant, who was catastrophically injured in a motor vehicle accident, brought a motion to compel the insurer to pay $252,000 towards home modifications or the purchase of a new home.

The insurer had previously indicated it would consider paying this amount but argued it was not yet payable because the applicant had not incurred the expense or provided an invoice.

The arbitrator found that while the insurer had agreed to pay the amount, the applicant had not taken concrete steps towards purchasing a new home or renovating his existing home to constitute an 'invoice' under section 38 of the Schedule.

The motion was dismissed, along with claims for interest and a special award.

The insurer requested an adjournment of the arbitration hearing because its newly retained counsel was involved in an extended jury trial.

The applicant opposed the adjournment, citing the lengthy history of delays in the proceeding.

The arbitrator granted a short adjournment but ordered the insurer to pay the applicant's fixed expenses of $5,964.61 for costs thrown away in preparing for the hearing.

The arbitrator emphasized the importance of strict time discipline in the arbitration system and found that the insurer's conduct tended to prolong the proceeding unduly.

The insurer sought to require the insured to attend an insurer's examination under section 42 of the Statutory Accident Benefits Schedule to assess her entitlement to post-104 week income replacement benefits.

The insurer had only made an oral request at a pre-hearing discussion and did not provide written notice specifying the benefit to which the examination related.

The arbitrator held that the insurer failed to meet the basic notice requirements of section 42, which implicitly require written notice detailing the health professional and the affected benefit.

The insurer's request was denied, and the insured was awarded her expenses for the motion.

In a dispute over statutory accident benefits, the insurer requested production of the transcript of the applicant's examination for discovery from a related tort action.

The arbitrator denied the request, noting that the dispute resolution system at FSCO does not include examinations for discovery.

Allowing the insurer to obtain the transcript would give it an unfair advantage and distort the FSCO process, allowing the insurer to do indirectly what the legislature chose not to allow directly.

The plaintiff was involved in a motor vehicle accident and commenced an action without complying with the defendant insurer's request for a Functional Capacities Assessment under s. 258.3(1)(d) of the Insurance Act.

The defendant successfully moved for an order compelling the plaintiff to submit to the examination.

The plaintiff appealed, arguing the court lacked jurisdiction to order compliance and was restricted to considering non-compliance in awarding costs under s. 258.3(9).

The Divisional Court dismissed the appeal, holding that the court retains discretion to order compliance to further the legislative objective of facilitating early settlement.