Kari Chan

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario.

The Delegate held that the applicant was not entitled to deduct a lump sum amount received by the respondent for long-term disability benefits from an amount owing for past income replacement benefits.

The Divisional Court found the Delegate's interpretation of s. 7(1) of the Statutory Accident Benefits Schedule to be reasonable, as the long-term disability benefits were not 'available' to the respondent at the time the income replacement benefits were due.

The application for judicial review was dismissed.

The applicant sought judicial review of a Director's Delegate's decision upholding an arbitrator's rulings on interest and costs in an accident benefits dispute.

The applicant argued that interest on retroactive attendant care benefits should be calculated from an earlier date, and challenged the costs award.

The Divisional Court dismissed the application, finding that the interest issue was squarely governed by the court's prior decision in Grigoroff, which held that interest runs from the date the retroactive claim form is filed.

The court also found the costs award was highly discretionary and the Delegate's decision to uphold it was reasonable.

The applicant sought judicial review of a decision by the Director's Delegate, which overturned an Arbitrator's finding that he suffered a catastrophic impairment as a result of a 2013 motor vehicle accident.

The applicant had previously been involved in two accidents in 2002.

The Director's Delegate found that the applicant was already catastrophically impaired before the 2013 accident and that the Arbitrator erred by applying the material contribution test instead of the 'but for' test.

The Divisional Court granted the judicial review, finding the Director's Delegate's decision unreasonable because it relied on an unestablished fact that the applicant was already catastrophically impaired.

The Court also held that the Arbitrator's use of the material contribution test was appropriate in circumstances involving multiple accidents where it is impossible to determine which accident caused the impairment.

The applicant insurer sought judicial review of a decision by the Director's Delegate, which allowed the insured's appeal from an arbitrator's denial of statutory accident benefits.

The Director's Delegate found that the arbitrator erred in law by failing to provide adequate reasons for denying income replacement and medical benefits.

Applying the Vavilov framework, the Divisional Court held that the standard of review was reasonableness.

The Court concluded that the Director's Delegate reasonably found the arbitrator's reasons inadequate, as they failed to address the principal evidence or explain the reasoning process.

The application for judicial review was dismissed.

The applicant insurer sought judicial review of a FSCO Director's Delegate decision which held that the insurer's notice letters seeking repayment of income replacement benefits were invalid.

The insurer had attempted to claw back overpayments after the respondent became eligible for CPP benefits.

The Divisional Court dismissed the application, finding it was reasonable for the Delegate to conclude the notices were defective for claiming beyond the 12-month statutory cap and for failing to be substantially correct.

The insurer was ordered to refund the clawed-back monies with interest.

Aviva Canada Inc. sought judicial review of a FSCO Director's Delegate's order that partially rescinded an arbitration award and remitted the respondent's entitlement to non-earner benefits to a de novo hearing before a different arbitrator.

The Divisional Court dismissed Aviva's preliminary motion to admit fresh evidence, finding no exceptional circumstances.

On the merits, the Court held that the Director's Delegate reasonably concluded the Arbitrator erred in law by failing to explicitly address whether the requested insurer examination was reasonable and necessary, and by failing to address the claim for non-earner benefits prior to the scheduled examination.

The Court also found no error in remitting the matter to a new arbitrator.

The application for judicial review was dismissed.