Guy Farrell

The plaintiff, injured while a passenger on a bus, brought a motion to strike the jury notice due to COVID-19 delays and to permit witnesses to testify virtually.

The defendants brought a cross-motion to amend their Statement of Defence to allege contributory negligence and failure to mitigate.

The court granted the defendants' motion to amend, finding the proposed amendments legally tenable.

The court dismissed the plaintiff's motion to strike the jury notice at this time, noting the availability of jury trial facilities in Toronto and the substantive right to a jury, but adjourned the trial.

The court granted the request to allow witnesses to testify by video conference, subject to notice requirements.

The applicant filed a Request for an Order During Proceedings to reactivate his human rights application, which had been deferred pending the conclusion of two related civil actions.

The applicant provided evidence that one of the civil actions had settled, but provided no information regarding the second action against the respondent and its insurer.

The Tribunal denied the request to reactivate, finding that the original deferral order required both civil actions to be concluded before the application could proceed.

The applicant was injured in a rear-end motor vehicle accident and sought statutory accident benefits for medical treatment and examinations related to chronic pain.

The insurer denied the treatment plans, arguing the injuries were minor soft tissue injuries that did not justify further treatment two years post-accident.

The arbitrator found the applicant credible and accepted expert evidence that she suffered from a chronic pain disorder.

The arbitrator concluded the treatment at the Rehab Centre was reasonable and necessary to manage pain, improve function, and allow the applicant to continue working.

The applicant was awarded $11,695 for medical benefits, $1,462.44 for examinations, and interest on overdue payments.

The applicant filed a human rights application alleging discrimination in employment on the basis of disability, claiming the respondent terminated his employment during a medical leave and failed to assist him in obtaining insurance benefits.

The applicant also commenced two civil actions related to his injuries and insurance benefits.

The Tribunal considered whether to defer the application under section 45 of the Human Rights Code.

Finding a significant overlap in key factual disputes between the proceedings, the Tribunal deferred the application pending the conclusion of the civil actions to avoid inconsistent results.

The appellant was shot and stabbed during a car-jacking while sitting in his parked vehicle.

He applied for statutory accident benefits, which were denied by the arbitrator on the basis that the incident did not meet the definition of an 'accident' under the SABS-1996.

On appeal, the Director of Arbitrations upheld the decision, finding that while the automobile provided the location and motivation for the assault, the injuries were directly caused by the intervening acts of the assailants (the gunshot and stabbing), not by the use or operation of the automobile.

The applicant was shot and stabbed by unknown assailants during a carjacking while sitting in his parked vehicle.

He applied for statutory accident benefits, which the insurer denied on the basis that the incident was not an 'accident' under the Schedule.

The arbitrator held that the use or operation of the automobile did not directly cause the applicant's injuries; rather, the assault was an intervening act and the direct cause.

The applicant was therefore precluded from proceeding to arbitration for accident benefits.

The applicant claimed medical and rehabilitation benefits following a motor vehicle accident.

The insurer denied the treatment plans without scheduling a medical and rehabilitation designated assessment centre (DAC) as required by section 38 of the Statutory Accident Benefits Schedule.

The applicant brought a preliminary motion arguing the insurer was deemed to have admitted entitlement due to this procedural breach.

The arbitrator found the insurer failed to comply with the denial provisions, but held that based on existing case law, the breach raised an evidentiary rather than a jurisdictional question.

The arbitrator declined to decide the consequences of the breach on a preliminary basis, ordering the matter to proceed to a full hearing.

The applicant applied for statutory accident benefits following a motor vehicle accident but failed to appear at the arbitration hearing.

His claims for income replacement, medical, and rehabilitation benefits were dismissed for lack of evidence.

The insurer sought an award under section 282(11.2) of the Insurance Act, alleging the claim was fraudulent and an abuse of process.

The arbitrator dismissed this request, finding the insurer failed to prove fraud from the outset on a balance of probabilities, as required to trigger the section.

However, the arbitrator awarded the insurer $4,776.02 in expenses under the Expense Regulation, as the applicant's failure to appear rendered his claims manifestly unfounded.

The appellant appealed a preliminary arbitration order that denied his request for the production of all surveillance information obtained by the insurer, regardless of whether the insurer intended to rely on it at the hearing.

The Director's Delegate found no error of law in the arbitrator's application of the Dispute Resolution Practice Code, which only requires production if the insurer intends to rely on the surveillance.

However, the appeal was allowed in part to amend the order to strictly reflect the wording of Rule 37, requiring production if the insurer intends to rely on 'any portion' of the surveillance evidence.

The applicant sought to withdraw his application for arbitration regarding statutory accident benefits shortly before the second scheduled hearing date.

The insurer argued that the applicant had abused the process by failing to provide requested productions, forcing an adjournment, and withdrawing without explanation.

The arbitrator allowed the withdrawal but found the applicant's conduct amounted to an abuse of process.

Pursuant to section 282(11.2) of the Insurance Act and Rule 67.3(c) of the Dispute Resolution Practice Code, the applicant was ordered to pay the insurer's $3,000 assessment fee.

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

The insurer denied the claim, alleging that the accident was staged and that the applicant was not employed prior to the accident.

The arbitrator found that the accident was genuine, the applicant was employed, and the insurer had no credible evidence to support its allegations of fraud.

The applicant was awarded income replacement benefits, medical benefits, and a special award of $15,000 because the insurer unreasonably withheld payments.

The applicant was injured in a motor vehicle accident and sought ongoing income replacement benefits and medical benefits.

The insurer terminated benefits, arguing the applicant's ongoing disability was caused by severe pre-existing psychological and physical conditions, not the accident.

The arbitrator found that while the accident caused moderate soft tissue injuries, it did not significantly contribute to the applicant's disability beyond the termination date.

Claims for ongoing income replacement and most medical benefits were dismissed.

However, the arbitrator awarded a $5,000 special award against the insurer for unreasonable delays in paying benefits and adjusting the claim following clarifications in the law.

The applicant sought statutory accident benefits following a motor vehicle accident.

The insurer denied the claim, alleging the accident was staged and the applicant's employment was fabricated.

At the arbitration hearing, the insurer's key witness recanted his previous statements implicating the applicant.

Before the decision was issued, the insurer brought a motion to re-open the hearing under section 39 of the Dispute Resolution Practice Code to introduce new evidence from another witness.

The arbitrator dismissed the motion, finding that the insurer failed to exercise due diligence in discovering the evidence prior to the hearing and that the proposed hearsay evidence lacked sufficient credibility to affect the outcome.

The insurer was ordered to pay the applicant's expenses for the motion.

The applicant was injured in a motor vehicle accident and sought payment for chiropractic and rehabilitation expenses incurred after the insurer terminated benefits based on a Designated Assessment Centre report.

The arbitrator found that the applicant was motivated to exercise on her own and did not require the supervised rehabilitation program, which was billed at an excessive hourly rate.

Furthermore, the arbitrator found no persuasive evidence that the continued chiropractic treatment was reasonable or necessary, noting that the treating chiropractor had not discussed the need for further treatment with the applicant.

The application for arbitration was dismissed.

The applicant was injured in a motor vehicle accident and settled her claim for statutory accident benefits with the insurer prior to an arbitration hearing.

The parties agreed to have the applicant's expenses assessed by the Financial Services Commission of Ontario (FSCO).

The arbitrator held that FSCO has jurisdiction to award expenses even when the substantive issues are settled prior to a hearing, as the matter remains an 'arbitration proceeding' under the Insurance Act from the time the application is filed.

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

The parties attended mediation and executed a Release and Indemnity Agreement.

The insurer argued the agreement precluded the applicant from proceeding to arbitration for certain medical and rehabilitation benefits.

The arbitrator found the agreement ambiguous and admitted extrinsic evidence under an exception to the parol evidence rule.

The arbitrator concluded the parties intended to exclude the disputed clinic accounts from the release, allowing the applicant to proceed to arbitration.

The insurer brought a motion to determine whether the applicant was reasonably entitled to refuse to attend a psychiatric examination unless accompanied by her husband or mother.

The applicant argued she was emotionally fragile and required moral support based on past negative experiences.

The arbitrator applied the reasonableness test and found no evidence of bias or privacy concerns that would justify the condition.

The arbitrator concluded it was not reasonable for the applicant to refuse to submit to the examination unless accompanied, noting that an adverse inference could be drawn if she refused to attend alone.

The appellant appealed an arbitrator's decision that allowed only a portion of his claimed physical rehabilitation and transportation expenses following a motor vehicle accident.

The Director's Delegate upheld the arbitrator's findings that the extended treatment hours claimed were not reasonable or required, and that the evidence for transportation expenses was insufficient.

The request for a special award was denied as it was not pursued at arbitration.

The arbitrator's order regarding arbitration expenses was varied to reflect the parties' agreement for two-and-a-half days of hearing.

The appeal was otherwise dismissed.

The appellant was injured in a snowmobile accident and received caregiver benefits.

The insurer terminated benefits before the 104-week mark, and an arbitrator found the appellant only met the partial-inability test, not the complete-inability test required after 104 weeks.

The appellant argued she could still elect loss of earning capacity benefits (LECBs) because she continued to 'qualify' for caregiver benefits under the partial-inability test, even if they were not payable.

The Director's Delegate dismissed the appeal, holding that to 'continue to qualify' for caregiver benefits at the 104-week mark for the purpose of electing LECBs, the insured must meet either the substantial-inability or complete-inability test.

The insurer's cross-appeal on arbitration expenses was allowed in part.

The applicant was unsuccessful in her claim for loss of earning capacity benefits and both parties sought their expenses for the arbitration.

The arbitrator reviewed the new expense provisions under section 282(11) of the Insurance Act and Ontario Regulation 464/96, which allow expenses to be awarded to either party.

The arbitrator found that the applicant raised a novel issue under a complex schedule and her proceeding was not manifestly unfounded.

The applicant was awarded her expenses, while the insurer's claim for expenses was denied to avoid discouraging legitimate disputes.