J. Claude Blouin

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 production of all surveillance evidence from the respondent insurer, regardless of whether the insurer intended to rely on it at the hearing.

The adjudicator found that surveillance evidence is relevant to the catastrophic impairment determination.

However, litigation privilege arose on September 4, 2014, when the applicant filed a prior related application for a non-earner benefit.

Applying the Supreme Court's decision in Blank, the adjudicator held that the litigation privilege from the 2014 application continued for the current application because both proceedings shared a common factual issue regarding the applicant's level of impairment.

The respondent was ordered to disclose and produce surveillance conducted prior to September 4, 2014, but surveillance conducted after that date was protected by litigation privilege and did not need to be produced unless the respondent intended to rely on it.

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.

The applicant appealed an arbitrator's decision dismissing his claims for income replacement benefits and medical benefits outside the Minor Injury Guideline following a motor vehicle accident.

The arbitrator found the applicant lacked credibility due to inconsistencies between his reports to doctors and his employment records, which showed he continued working after the accident.

The arbitrator also concluded the applicant's injuries were predominantly minor and there was no compelling evidence that pre-existing conditions prevented his recovery within the guideline limits.

The Director's Delegate upheld the arbitrator's decision, finding no error in the assessment of credibility or the weighing of medical evidence.

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

After failing to attend a pre-hearing and numerous assessments, the arbitrator ordered the applicant to attend an in-home assessment.

The applicant failed to do so and ignored subsequent production requests and notices of resumption of the pre-hearing.

The arbitrator issued a notice of intention to dismiss the proceeding.

The applicant's counsel confirmed they had no response.

The arbitrator dismissed the proceeding without a hearing under Rule 68.1 of the Dispute Resolution Practice Code, finding it frivolous, vexatious, or commenced in bad faith due to the applicant's failure to pursue the claim.

The Applicant applied for statutory accident benefits following a motor vehicle accident.

After failing to attend a pre-hearing and numerous assessments, the insurer requested the case be dismissed.

The Arbitrator issued a notice of intention to dismiss the proceeding under Rule 68.1 of the Dispute Resolution Practice Code.

The Applicant failed to respond or engage meaningfully in the arbitration.

Consequently, the Arbitrator dismissed the proceeding without a hearing, finding it to be frivolous, vexatious, or commenced in bad faith.

The applicant brought a motion to remove the insurer's counsel, alleging a conflict of interest because the firm also represented the insurer in the accident benefits claim of her husband (a non-party).

The applicant also sought to exclude a medical report from her husband's file that the insurer intended to use in her arbitration.

The Arbitrator held that the medical report was inadmissible because the husband had not consented to its use in his wife's arbitration, and the insurer's privacy policy and PIPEDA protected his personal information.

However, the Arbitrator declined to remove the insurer's counsel, finding no conflict of interest as the firm had never acted for the applicant or her husband, and there was no risk of prejudice to the insurer.

The insurer sought an order for expenses after successfully defending an application for arbitration regarding statutory accident benefits.

The arbitrator considered the criteria under the Expense Regulation.

Although the insurer was wholly successful, the arbitrator noted that the case involved novel issues regarding the Minor Injury Guideline (MIG) and that the insurer's own medical reports were problematic and contradictory.

Concluding that both sides were reasonably justified in believing they had a triable case, the arbitrator ordered each party to bear its own expenses.

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 insured applied for statutory accident benefits following a motor vehicle accident, seeking $126,673 for home modifications.

The insurer requested that the insured attend an orthopaedic examination to assess the claim.

The insured refused to attend, arguing the request was unreasonable and the notice was deficient.

The insurer brought a preliminary issue motion to preclude the insured from proceeding to arbitration.

The arbitrator found that the insurer's notice met all procedural requirements and that the requested examination was reasonably necessary to assess causation for the new benefit claimed.

The arbitration was adjourned until the insured attends the orthopaedic examination.

The applicant sought statutory accident benefits, including income replacement benefits (IRBs) and medical/rehabilitation benefits, following a motor vehicle accident.

The insurer terminated IRBs and denied further treatment plans, arguing the applicant's injuries were minor and did not prevent him from working.

The arbitrator dismissed the application, finding the applicant's evidence regarding his inability to work highly unreliable and contradicted by his employment records and his family doctor's clinical notes.

The arbitrator also held that the applicant's physical and psychological impairments fell within the Minor Injury Guideline (MIG), as there was no compelling evidence from his treating health practitioner that a pre-existing condition would prevent him from achieving maximal recovery within the MIG limits.

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 appellant successfully appealed an arbitrator's variation order that had allowed the insurer to deduct Canada Pension Plan disability benefits from his income replacement benefits.

The appellant sought his expenses for both the variation and the appeal.

The insurer argued that no expenses should be allowed because the appellant's representative failed to provide submissions during the variation proceeding, which prolonged the matter.

The Director's Delegate found that while the appellant should have provided submissions, the appeal raised novel issues and most expenses would have been incurred regardless.

The Director's Delegate awarded the appellant $5,500 in global expenses, inclusive of disbursements and HST.

Following the dismissal of the appellant's appeal, both parties sought their legal expenses.

The Director's Delegate found that the respondent was entirely successful on the appeal, which was unnecessarily complicated by the appellant.

The appellant was ordered to pay the respondent's legal expenses fixed at $5,000 inclusive of HST.

The Appellant, who sustained a catastrophic impairment in a 2009 motor vehicle accident, appealed an arbitrator's decision denying his claims for ongoing income replacement benefits (IRBs) and a $56,600 treatment plan at the Sierra Tucson facility.

The Director's Delegate dismissed the appeal, refusing to admit fresh medical evidence because it could have been obtained earlier with due diligence or was inappropriate for an appeal restricted to questions of law.

The Delegate found no error of law in the arbitrator's conclusions that the Appellant failed to meet his onus to prove post-accident income for IRB quantum, failed to meet the post-104 week complete inability test, and required updated neuropsychological testing before the intensive treatment plan could be approved.

The appellant appealed an Arbitrator's variation order that allowed the insurer to deduct Canada Pension Plan disability benefits from his income replacement benefits.

The Director's Delegate allowed the appeal, finding that the Arbitrator breached procedural fairness by deciding the variation application on the record without issuing a Notice of Hearing.

Furthermore, the Director's Delegate found no legal basis for the variation, as the evidence of the CPP disability benefits was known to both parties before the end of the original arbitration hearing and therefore was not 'evidence not available on the arbitration' under section 284(3) of the Insurance Act.

The variation order was rescinded and the application for variation dismissed.

The applicant was injured in a motor vehicle accident and received statutory accident benefits until the non-catastrophic policy limits were exhausted.

The applicant brought a motion for interim attendant care and medical/rehabilitation benefits in excess of the non-catastrophic limits, pending a determination of whether he suffered a catastrophic impairment.

The arbitrator dismissed the motion, finding no jurisdiction to order payments over the statutory non-catastrophic limits prior to a finding of catastrophic impairment.

Furthermore, the arbitrator held that the applicant did not meet the threshold test for interim benefits, as the conflicting medical evidence resulted in an ambiguous case strength.

The Respondent brought a motion during a preliminary appeal conference to compel the Appellant to order and pay for the transcript of his own testimony from the arbitration hearing.

The Appellant argued he could not afford the transcripts and did not intend to rely on them.

The Director's Delegate dismissed the motion, finding that the onus is on the moving party to establish that further portions of the transcript should be ordered, and that there is nothing preventing the Respondent from ordering the transcripts itself if it believes they are necessary for a full and fair appeal hearing.