Daniel F. Daly

The insurer appealed an arbitrator's order allowing the insured's paralegal to withdraw and permitting the insured to withdraw the arbitration without paying the insurer's costs.

The arbitration involved a claim for a functional assessment initiated by the assessment facility.

The Director's Delegate dismissed the appeal, finding that the arbitrator had the authority to deem the arbitration abandoned and impose terms.

The Delegate confirmed that arbitrators lack statutory authority to order costs against a representative and that it was fair not to order costs against the faultless insured.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits.

The insurer terminated benefits, and the applicant commenced arbitration.

Subsequently, the applicant was deported to Bulgaria and failed to attend scheduled insurer's medical examinations.

The insurer brought a preliminary motion to dismiss the arbitration for failure to diligently pursue the claim and for an award of its assessment fee under s. 282(11.2) of the Insurance Act.

The arbitrator declined to dismiss the arbitration, noting the applicant's stated willingness to attend an examination upon return to Canada or in Bulgaria, and ordered a resumption of the pre-hearing to monitor the applicant's efforts to return.

The arbitrator also denied the insurer's request for the assessment fee, finding the arbitration was not frivolous, vexatious, or an abuse of process when commenced.