Deborah G. Neilson

The Applicant was rendered a quadriplegic after jumping into a shallow lake from the tailgate of a parked pick-up truck during a late-night social gathering.

She applied for statutory accident benefits, but the Insurer denied the claim, arguing the incident did not meet the definition of an "accident" under the Schedule.

The Arbitrator applied the Amos two-part test and found that using the truck bed for recreational "tailgating" and disembarking from it into the water constituted an ordinary use of the vehicle.

Furthermore, the Arbitrator concluded that disembarking from the truck was a direct cause of the Applicant's injuries with no intervening acts.

The Arbitrator ruled that the incident was an accident and the Applicant was entitled to claim benefits.

The applicant insurer sought to withdraw its Application for Variation/Revocation of an arbitrator's motion decision regarding statutory accident benefits.

The respondent consented to the withdrawal on the condition that the applicant pay $300 in legal expenses.

The Director's Delegate permitted the withdrawal on the condition that the applicant pay the requested $300 in legal expenses, finding it a just condition given the unnecessary expense caused to the respondent.

The appellant insurer sought to appeal a preliminary arbitration order requiring it to produce its complete accident benefits file and an affidavit of documents, arguing the order improperly required production of privileged documents.

The respondent conceded that the arbitrator's order excluded documents for which privilege or reserve information was claimed.

The Director's Delegate rejected the appeal, finding no extraordinary circumstances or errors of law to justify interfering with the arbitrator's interim procedural order, and declined to grant a stay.

The Applicant sought production of the Insurer's complete accident benefits file from the date of the collision to the date of the hearing.

The Insurer claimed it had produced the entire file, subject to privilege and relevance.

The Arbitrator found extraordinary circumstances justifying an order for an Affidavit of Documents, noting missing documentation, two file numbers, and the Insurer's blanket claims of privilege.

The Arbitrator ordered the Insurer to produce the file up to the date litigation privilege attached, provide an Affidavit of Documents, and awarded expenses of the motion to the Applicant.

Intact Insurance appealed an arbitrator's decision dismissing its priority dispute against Federated Insurance regarding accident benefits for a claimant injured in a motor vehicle accident.

The arbitrator found that Intact failed to provide notice of the dispute to Federated within the 90-day period required by s. 3(1) of O. Reg. 283/95, and did not meet the test for relief under s. 3(2).

The Superior Court of Justice upheld the arbitrator's decision, finding no error in the determination that Intact had received a completed application by June 7, 2010, had sufficient time to identify Federated, and failed to conduct reasonable investigations within the 90-day period.

The appeal was dismissed.

The appellant insurance company appealed a summary judgment decision.

The motion judge found no genuine issue for trial regarding the negligence of anyone other than an unidentified driver, noting the appellant's affidavit lacked a statement of belief in its truth, while the respondents' affidavits unambiguously blamed the unidentified driver.

The Court of Appeal found no error in the motion judge's conclusion and dismissed the appeal.

The appellant insurer appealed an arbitration order requiring it to pay attendant care benefits for services provided by an aide or attendant concurrently with co-payment fees charged by a long-term care facility under s. 16(2) of the SABS-1996.

The Director's Delegate dismissed the appeal, finding that the word 'or' in s. 16(2) should be read inclusively, allowing the claimant to receive both types of benefits simultaneously.

The matter was remitted to arbitration for determination of the remaining disputes regarding the claimant's attendant care claim.

The applicant, who sustained severe quadriplegia in a motor vehicle accident, resided in a chronic care facility.

His family provided additional necessary attendant care services because the facility's care was insufficient.

The insurer argued that under section 16(2) of the Statutory Accident Benefits Schedule, it was only required to pay for either an aide or a long-term care facility, but not both, interpreting the word 'or' exclusively.

The arbitrator held that 'or' should be read inclusively in the context of the legislative scheme and the remedial nature of the statute.

The insurer was ordered to pay attendant care expenses incurred concurrently under both subsections.

The applicant was catastrophically injured in a motor vehicle accident and received income replacement benefits.

The insurer terminated these benefits based on outdated and superficial medical reports, ignoring cogent evidence of the applicant's severe cognitive and behavioural impairments.

Following an arbitration decision reinstating the benefits, a hearing was held to determine entitlement to a special award.

The arbitrator found that the insurer acted unreasonably in terminating and continuing to withhold the benefits, particularly by relying on a flawed Disability Assessment Centre (DAC) report and ignoring reports from the applicant's treating specialists.

A special award of $12,500, inclusive of interest, was granted pursuant to subsection 282(10) of the Insurance Act.

The applicant was injured in three motor vehicle accidents and sought statutory accident benefits.

During the arbitration hearing, the insurer sought to introduce three surveillance videotapes from September 2002 into evidence.

It was revealed that the insurer also possessed a fourth videotape from November 2003, which it had not disclosed and did not intend to produce.

The applicant brought an interlocutory motion to exclude the surveillance evidence.

The arbitrator held that under Rule 40 of the Dispute Resolution Practice Code, an insurer must produce all surveillance material generated in relation to the issues in dispute if it intends to rely on any portion of it.

The insurer was not permitted to 'pick and choose' which tapes to produce.

The motion was granted, and the insurer was not permitted to file the three September 2002 videotapes into evidence.

The applicant, injured in three motor vehicle accidents, sought an adjournment of an ongoing arbitration hearing regarding statutory accident benefits.

The applicant requested the delay to add a claim for income replacement benefits and to await the results of multi-disciplinary examinations requested by the insurer.

The arbitrator dismissed the motion, finding that the income replacement benefit claim was not yet in dispute and that delaying the hearing to await unknown assessment results would run counter to the goals of timeliness and efficiency.

The arbitrator also noted that the pending assessments would not assist in determining the existing issues, such as catastrophic impairment.

The insurer brought a motion to order further productions, add new issues (specifically defences under sections 32 and 33 of the Statutory Accident Benefits Schedule), adjourn the arbitration, and hold a preliminary issue hearing.

The arbitrator dismissed the motion, finding that the insurer had unreasonably delayed in raising these defences despite being aware of them early in the process.

Applying the doctrine of laches, the arbitrator held that adding the issues on the eve of the hearing would cause prejudice to the insured that could not be compensated by costs or an adjournment.

The insurer was ordered to pay $650 in fixed expenses to the insured.

The applicant, a minor at the time of the motor vehicle accident, claimed statutory accident benefits for catastrophic impairment.

During the arbitration, she was assessed and declared mentally incapable of managing property under the Substitute Decisions Act, 1992.

The arbitrator ruled that the proceeding could not continue without a properly appointed guardian of property.

The arbitration was stayed until a guardian of property is appointed, and the applicant's father was ordered to advise the Commission of his chosen legal representative and his intentions regarding the appointment of a guardian.

The applicant, who suffered a catastrophic brain injury when struck by a car as a pedestrian, applied for ongoing income replacement benefits beyond the 104-week mark.

The insurer terminated benefits based on a DAC assessment concluding the applicant could work.

The arbitrator found the DAC assessment inherently flawed and preferred the evidence of the applicant's treating practitioners, which demonstrated that despite numerous attempts to work, the applicant's cognitive, behavioural, and physical deficits rendered him completely unable to engage in suitable employment.

The arbitrator ordered the insurer to pay ongoing income replacement benefits with interest, declined to reopen the hearing for new evidence, and gave notice that a special award for unreasonably withholding benefits was being considered.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them.

The applicant brought a motion for interim benefits pending the resolution of the dispute.

The insurer ultimately did not oppose the order for interim benefits but sought a ruling on whether an interim benefits order is available where an insurer is already paying the benefits, relying on a previous decision.

The arbitrator ordered the insurer to pay interim income replacement benefits, finding that the insurer failed to comply with the Schedule when terminating the benefits, and distinguished the previous decision relied upon by the insurer.

The claim for a special award was dismissed on consent.

The applicant sought interim income replacement benefits after the insurer terminated them despite a positive disability Designated Assessment Centre (DAC) report.

The arbitrator held that an insurer is not bound by a pre-104 week positive DAC assessment for post-104 week benefits, as the test for entitlement changes significantly at that threshold.

However, the arbitrator ruled that a mere change in the insured's medical condition does not allow an insurer to bypass the dispute resolution process and terminate benefits contrary to a positive DAC, unless the change is as significant and material as the passage of the 104-week mark.

In a pre-hearing dispute over statutory accident benefits, the applicant sought production of investigator's reports regarding an alleged offer of employment.

The insurer claimed litigation privilege over the reports but reserved the right to call the investigator as a witness.

The arbitrator applied the dominant purpose test and the Dispute Resolution Practice Code, finding that the reports were likely requisitioned to adjust the file rather than for litigation.

Given the insurer's reservation of the right to call the investigator, the arbitrator ordered the production of the reports to ensure full and fair disclosure.

The applicant estate sought expenses following a successful arbitration to enforce a settlement reached at mediation prior to the insured's death.

The insurer had refused to pay the settlement funds without a prior release, necessitating the arbitration.

The arbitrator found that the insurer's failure to fulfill its original obligations and its insistence on a prior release made the hearing necessary.

The estate was awarded its reasonable expenses of $3,108.07, with the arbitrator approving the senior counsel's enhanced hourly rate of $150 due to the complexity of the jurisdictional issues raised by the insurer.

The applicant was injured in a motor vehicle accident and agreed to a settlement at mediation.

Before the insurer provided the necessary release documents, the applicant died.

The insurer did not dispute the settlement but raised the issue of compliance with the settlement regulation (O. Reg. 664).

The arbitrator held that the settlement was valid and enforceable.

The insurer was estopped from relying on its own failure to provide the required documentation to vitiate the agreement.

The insurer was ordered to pay the settlement funds in trust to the applicant's solicitor.

The insurer appealed an arbitration order that reinstated the insured's caregiver benefits and imposed a special award at the maximum rate.

The insurer had suspended benefits after the insured refused to attend two sets of multi-disciplinary medical examinations.

The Director's Delegate dismissed the appeal, upholding the arbitrator's finding that the requested examinations were not reasonably necessary given the extensive medical information already available, including Designated Assessment Centre (DAC) reports supporting the insured's disability.

The Director's Delegate also confirmed the special award, finding that the insurer acted unreasonably in ignoring the medical evidence and the concerns of the insured's treating practitioners regarding the excessive assessments.