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Insurer's motion to compel assessments and stay arbitration dismissed due to delay and failure to send notices.
The insurer brought a motion to stay an upcoming arbitration hearing and compel the applicant to attend four post-104 week insurer examinations.
The arbitrator dismissed the motion, finding that the insurer had ample notice of the applicant's claim for ongoing income replacement benefits but delayed in requesting the assessments.
The insurer merely asked about the applicant's availability and, upon refusal, failed to send formal notices of examination or take timely steps to arrange them.
The arbitrator concluded the assessments were no longer reasonable and necessary given the delay and the imminent hearing date.
Insurer awarded $6,435.58 in arbitration expenses after successfully defending a claim for statutory accident benefits.
Following the dismissal of the applicant's claim for statutory accident benefits, the insurer sought its expenses of the arbitration.
The arbitrator found that the insurer was completely successful and therefore entitled to its expenses, noting that there is no discretion to consider the applicant's inability to pay or dire financial circumstances.
The arbitrator reduced the claimed amount of $8,823.47 to $6,435.58, making deductions for hearing time wasted waiting for a court reporter, time spent on resolved issues, excessive law clerk rates, and excessive time claimed for a phase 1 report.
Appeal allowed and trial dismissal set aside where interests of justice required granting an adjournment.
The plaintiff appealed a Deputy Judge's decision dismissing his action after refusing to grant an adjournment on the first day of trial.
The plaintiff's counsel requested the adjournment to obtain newly discovered documents relating to the value of the damaged car, but failed to adequately explain the nature of the documents or why they were not produced earlier.
The Divisional Court found that while the Deputy Judge's decision was understandable given counsel's inadequate submissions, the interests of justice required granting the adjournment so the case could be resolved on its merits.
The appeal was allowed and the dismissal set aside, though the $1,000 costs award to the defendant for the trial attendance was upheld.
