Frank Burns

The applicant, who suffered severe physical injuries in a motorcycle accident, sought a catastrophic impairment designation under Criterion 8 of the Statutory Accident Benefits Schedule based on mental and behavioural disorders.

The Licence Appeal Tribunal found that the applicant failed to demonstrate a marked impairment in three of four functional domains or an extreme impairment in one domain.

The Tribunal gave limited weight to the applicant's psychiatric expert due to conclusory analysis and reliance on outdated occupational therapy reports, preferring the respondent's occupational therapy assessment and surveillance evidence showing the applicant retained useful functioning.

As the applicant was not catastrophically impaired and had exhausted his standard medical and rehabilitation limits, his claims for an occupational therapy treatment plan and an award for unreasonable delay were dismissed.

The applicant and the insurer both applied to vary previous arbitration decisions based on alleged new evidence.

The applicant sought to vary a decision denying him income replacement, attendant care, and housekeeping benefits, relying on new medical reports and the testimony of an occupational therapist.

The Director's Delegate dismissed the applicant's application, finding that the evidence could have been obtained prior to the original hearing with due diligence and would not have led to a different result, particularly given the applicant's credibility issues and surveillance evidence showing him performing activities he claimed he could not do.

The insurer's application to vary a decision regarding the cost of a treatment plan based on a discount was also dismissed, as the insurer failed to prove the evidence could not have been obtained prior to the hearing.

The appellant brought a motion to admit an occupational therapy assessment report as fresh evidence in a Variation proceeding.

The report had been commissioned by the respondent to assess the reasonableness of ongoing benefits and was disclosed to the appellant in a separate proceeding.

The Director's Delegate denied the motion, finding that the report did not address any of the issues that were before the arbitrator in the original 2014 arbitration decision, and was therefore not relevant to the Variation proceeding.

The applicant sought a catastrophic impairment determination following a motor vehicle accident on August 18, 2016.

The respondent rejected the application because it used the pre-June 1, 2016 definition of catastrophic impairment.

The applicant argued that his policy, which was in force from May 1, 2016 to May 1, 2017, was a transitional policy and therefore the old definition applied.

The Tribunal found that the new definition of catastrophic impairment under s. 3.1(1) of the Schedule applies to accidents occurring on or after June 1, 2016, regardless of when the policy was issued or renewed.

The applicant's claim was withdrawn as he submitted the incorrect application.

The applicant was involved in a motor vehicle accident on August 18, 2016, and sought a catastrophic impairment determination.

The respondent rejected the application because it used the pre-June 1, 2016 definition of catastrophic impairment.

The applicant argued her policy was a transitional policy and the old definition applied.

The Tribunal found that the new definition of catastrophic impairment under s. 3.1(1) of the Schedule applies to accidents occurring on or after June 1, 2016.

The applicant's policy was not a transitional policy under s. 68, the respondent did not waive its right to rely on the new definition, and the applicant had no vested right to the old definition.

The applicant withdrew her claim to submit the correct application.

AIG Insurance Company of Canada appealed an Arbitrator's order requiring it to pay arbitration expenses and interest on overdue medical and rehabilitation benefits.

AIG argued that under the Statutory Accident Benefits Schedule, payments are only due once an invoice is received, and that the legal fees awarded were excessive.

The Director's Delegate dismissed the appeal, finding that the invoice requirement only applies when an insurer fails to give proper notice of refusal, which was not the case here.

The Delegate also upheld the expenses award, noting the Arbitrator's discretion and the finding that AIG's fastidiousness caused more preparation time than usual.

Following the dismissal of the appellant's Application for Variation or Revocation regarding statutory accident benefits, the respondent insurer sought its legal expenses.

The Director's Delegate rejected the appellant's arguments that the issues were novel or that the expense hearing should be adjourned pending judicial review.

Finding the insurer's claimed amount of $3,642.15 to be high compared to the average expense award, the Delegate ordered the appellant to pay $2,800 in legal appeal expenses.

Following an arbitration decision awarding statutory accident benefits to the applicant, the parties disputed the quantum of expenses, the calculation of interest on overdue benefits, and whether the arbitrator had jurisdiction to increase the quantum of an approved medical benefit.

The arbitrator awarded the applicant $27,910.01 in expenses, finding the insurer's adversarial approach unnecessarily prolonged the proceedings.

The arbitrator also held that interest on overdue benefits runs from 30 days after the receipt of the treatment plans, rejecting the insurer's argument that interest only runs from the submission of invoices.

Finally, the arbitrator concluded she lacked jurisdiction to amend the quantum of the approved medical benefit, as it would constitute a substantive change rather than correcting a typographical error.

The applicant sought to vary or revoke an arbitrator's decision denying his claims for income replacement, attendant care, and housekeeping benefits, relying on new medical reports as 'new evidence'.

The Director's Delegate dismissed the application, finding that the proposed evidence could have been obtained prior to the original hearing with due diligence.

Furthermore, the Delegate held that even if admitted, the new evidence would not have led to a different result, as it did not address the arbitrator's core findings regarding the applicant's lack of credibility, failure to prove income loss, and demonstrated functional abilities.

Following an arbitration hearing where the insurer was almost entirely successful in defending the applicant's claims for statutory accident benefits, the insurer sought its expenses of the proceeding.

The arbitrator found that the insurer was entitled to its reasonable expenses based on its degree of success.

After reviewing the hours claimed and applying the appropriate Legal Aid rates, the arbitrator fixed the insurer's expenses at $15,000, inclusive of fees, disbursements, and taxes, and ordered the applicant to pay this amount.

The applicant, who sustained a catastrophic impairment including a traumatic brain injury in a motor vehicle accident, sought various medical and rehabilitation benefits under the Statutory Accident Benefits Schedule.

The insurer denied several treatment plans for physiotherapy, occupational therapy, speech-language therapy, and a multi-disciplinary residential program in the United States.

The arbitrator found that the insurer improperly relied on outdated or flawed assessor reports and failed to give adequate weight to the objective evidence of the applicant's treating professionals.

All disputed treatment plans were found to be reasonable and necessary, and the applicant was awarded the claimed benefits with interest.

The applicant was injured in a motor vehicle accident when she hit her head on a streetcar.

She applied for non-earner benefits, attendant care benefits, housekeeping benefits, and the cost of medical assessments.

The arbitrator found that the applicant did not suffer a complete inability to carry on a normal life, as she continued to travel, live independently, and engage in social activities, and therefore denied the non-earner benefits.

The arbitrator awarded $1,560.97 for attendant care services (hair and foot care) and granted the withheld housekeeping benefits, accepting her explanation for the delayed disability certificates.

The claims for the cost of medical assessments were dismissed for lack of evidence.

The applicant was injured in a motor vehicle accident while driving a tractor trailer and sustained a catastrophic impairment.

He sought various statutory accident benefits, including caregiver, income replacement, housekeeping, attendant care, and medical benefits.

The arbitrator dismissed the majority of the claims, citing significant credibility issues, surveillance evidence showing the applicant performing demanding physical activities, and a failure to provide documentation regarding post-accident employment and income.

The insurer was ordered to pay for one specific treatment plan at the catastrophic impairment rate, but the claim for a special award was denied.

The applicant was injured in a motor vehicle accident and claimed non-earner benefits.

The insurer argued she was precluded from proceeding to arbitration because she did not submit a disability certificate stating a complete inability to carry on a normal life within 104 weeks.

The arbitrator found that the applicant provided sufficient information to trigger the insurer's duty to adjust the claim, and that the insurer failed to respond properly, delaying the crystallization of the dispute.

Furthermore, the arbitrator held that the insurer breached its duty of good faith by failing to arrange a neuropsychological insurer examination as part of a proper investigation into the applicant's head injury.

The applicant was permitted to proceed to arbitration with her claim.

Following a jury trial arising from a motor vehicle accident, the court determined costs consequences after the plaintiff obtained a judgment significantly lower than the defendant’s Rule 49 offer to settle.

The jury awarded $100,000 in damages but the net payable amount after statutory deductions and contributory negligence was $49,000.

The court held that the defendant’s offer was substantially more favourable than the judgment and applied Rule 49.10 of the Rules of Civil Procedure.

The plaintiff was awarded partial indemnity costs up to the date of the defendant’s offer, while the defendant received partial indemnity costs thereafter.

The court fixed the plaintiff’s costs to the date of the offer at $65,000 and the defendant’s costs after the offer at $95,000, with an additional $7,000 to the plaintiff for post‑trial motions.

Following a jury verdict in a motor vehicle personal injury action, the defendant brought a motion to settle the judgment and determine whether statutory accident benefits previously received by the plaintiff should be deducted from future damages awarded by the jury.

The plaintiff had settled accident benefits claims with the insurer through a lump‑sum settlement covering income replacement, medical, rehabilitation, and attendant care benefits.

The court held that deductions under s. 267.8 of the Insurance Act require alignment between the benefit received and the head of damages awarded (“apples to apples”).

Because the settlement amounts did not specify what portion related to future benefits and the jury award did not allocate future care costs among categories, the court found it impossible to determine proper deductions.

No deductions were applied to the jury’s awards for future income loss or future care.

The defendant brought a motion under s. 267.5(5) of the Insurance Act to dismiss the plaintiff’s motor vehicle accident claim on the basis that the injuries did not meet the statutory threshold of a permanent serious impairment of an important bodily function.

The court considered extensive medical evidence regarding chronic pain, depression, and functional limitations following a clavicle fracture requiring surgical fixation.

The court accepted that the plaintiff’s chronic pain and associated symptoms were genuine and had significantly impaired his ability to work and participate in normal life activities for eight years following the accident.

Applying the threshold analysis under the Insurance Act and the approach articulated in Meyer v. Bright, the court found the impairment permanent, serious, and affecting an important bodily function.

The defendant’s threshold motion was therefore dismissed.

The applicant, a 52-year-old bricklayer with limited English skills, was injured in a motor vehicle accident.

He applied for statutory accident benefits, claiming ongoing weekly income benefits beyond the 156-week mark, care benefits, and a special award.

The insurer argued he was capable of performing alternative sedentary work.

The arbitrator found that the applicant suffered from a combination of musculoskeletal injuries, mild brain injury, and psychological impairments that rendered him competitively unemployable.

The arbitrator awarded ongoing weekly income benefits and care benefits for the assistance provided by his family, but denied the claim for a special award.