Dwain C. Burns

The applicant sought a variation or revocation of an earlier arbitration decision, arguing that the arbitrator mistakenly recorded the date the insurer terminated income replacement benefits as February 1, 2001, instead of February 1, 2002.

The arbitrator acknowledged the error but found it did not affect the substantive conclusion that the applicant's accident-related disability ended on August 28, 2001, after which any disability was due to a pre-existing psychiatric illness.

Because the insurer had already paid benefits beyond August 28, 2001, the original order requiring payment of benefits was revoked and the application for income replacement benefits was dismissed.

Each party was ordered to bear their own expenses for the variation application.

The applicant was injured in a serious motor vehicle accident and received income replacement benefits (IRBs).

The insurer terminated IRBs after the applicant attempted a return to work but had to stop due to severe headaches and vomiting.

The insurer later reinstated benefits and paid arrears on the eve of the arbitration hearing.

The arbitrator found that the insurer unreasonably withheld benefits by ignoring the overwhelming medical evidence from treating practitioners and selectively reading its own experts' reports.

The arbitrator awarded a special award of $25,000, inclusive of compound interest, under s. 282(10) of the Insurance Act.

During an arbitration hearing for a special award under the Insurance Act, the applicant sought production of the insurer's adjusters' notes.

The insurer produced the notes but redacted certain entries, claiming solicitor-client privilege.

The applicant argued that solicitor-client privilege does not exist in a first-party claim until benefits are terminated, and that any privilege was implicitly waived by the insurer's reliance on its state of mind.

The arbitrator held that solicitor-client privilege can apply to communications with in-house counsel prior to the termination of benefits.

The arbitrator found that most of the redacted entries were protected by solicitor-client privilege and that the insurer had not implicitly waived the privilege merely because the applicant claimed a special award.

However, the arbitrator ordered the production of one entry authored by a claims person and a portion of another entry unrelated to reserves.