Larry J. Kielbowich

The appellants challenged orders refusing to set aside a default judgment.

The Court of Appeal held that both motion judges properly exercised their discretion in assessing prejudice, delay, and procedural fairness.

The court accepted that the insurer had recourse against its insured under s. 258 of the Insurance Act and found no basis to interfere with the conclusion that setting aside the judgment would cause greater prejudice to the respondents.

The appeals were dismissed with costs.

The appellant appealed an arbitrator's decision denying his claim for income replacement benefits under the Statutory Accident Benefits Schedule.

The appellant claimed he had a legitimate contract of employment as a sales representative before the accident.

The Director's Delegate upheld the arbitrator's finding that the evidence did not establish a genuine employment contract, dismissing the income replacement claim.

However, the appeal was allowed in part to award the appellant the full $1,670 cost of a psycho-vocational assessment, finding it was a reasonable expense recommended by his treating doctors.

The insurer's cross-appeal for repayment of benefits was dismissed.

The insurer appealed an arbitrator's decision ordering it to pay a $10,000 special award for unreasonably withholding statutory accident benefits.

The insured had suffered a back injury in a motor vehicle accident, and the insurer denied benefits based on a pre-existing condition.

The Director's Delegate dismissed the appeal, finding that the arbitrator's conclusion was supported by the evidence.

The insurer had maintained a stubborn and inflexible position, failing to re-evaluate the claim even after receiving MRI results and medical reports confirming an organic basis for the insured's ongoing symptoms.

The applicant was injured in a motor vehicle accident and claimed weekly benefits and yard maintenance expenses from his insurer.

The insurer denied the claims, arguing the applicant's disability was not caused by the accident and that he lacked motivation.

The arbitrator found that the accident aggravated the applicant's pre-existing spinal degeneration, causing a substantial inability to perform his essential daily tasks, including home renovations and strenuous recreational activities.

The arbitrator awarded three years of weekly benefits and partial yard maintenance expenses.

Furthermore, the arbitrator ordered the insurer to pay a $10,000 special award under section 282(10) of the Insurance Act, finding that the insurer's continued denial of the claim after receiving objective MRI evidence was unreasonable.

The applicant was injured in two motor vehicle accidents and claimed income replacement benefits based on an alleged written contract of employment as a sales representative, which he claimed was signed before the first accident.

The insurer terminated benefits, arguing the contract was not legitimate.

The arbitrator found that the alleged contract did not represent the true relationship between the parties, concluding the applicant was likely a subcontractor working on strict commission rather than a salaried employee.

Consequently, the claim for income replacement benefits under paragraph 7(1)3 of the Statutory Accident Benefits Schedule was dismissed.

The arbitrator also reduced a claim for a $1,670 psychovocational assessment to $400, finding the full amount unreasonable.

The insurer appealed an arbitration decision that found the insured was entitled to ongoing weekly income benefits after the 156-week mark, calculated the weekly benefit amount at $385, and declined to award interest on an overpayment.

The Director's Delegate dismissed the appeal, finding no error in the arbitrator's assessment of the insured's reasonable efforts to pursue suitable employment, the calculation of pre-accident income, or the decision to set off the overpayment against ongoing benefits without awarding interest.

The Applicant was injured in a motor vehicle accident and received statutory accident benefits.

The Insurer terminated weekly income benefits, leading to an arbitration.

The main issues were the calculation of the Applicant's pre-accident income, whether the Insurer could deduct potential Canada Pension Plan disability benefits, and claims for a special award and repayment of overpaid benefits.

The Arbitrator held that the Applicant's income should be averaged over 52 weeks, resulting in the minimum benefit rate.

The Insurer was not permitted to deduct CPP benefits since the Applicant had applied for them but not yet received them.

The claims for a special award and repayment of overpaid benefits were dismissed, and the Applicant was awarded expenses.

The applicant, a taxi driver, was injured in a motor vehicle accident and received weekly income benefits until January 1994.

He applied for reinstatement of benefits, claiming ongoing physical and psychological injuries rendered him substantially unable to perform his essential tasks.

The arbitrator found the applicant's evidence contradictory and unsupported by the medical reports, which largely recommended a return to work.

The claims for ongoing weekly income benefits and a special award were dismissed, though the applicant was awarded his arbitration expenses.