Rene A. Clonfero

Following a preliminary issue hearing where the insurer successfully argued the applicant was precluded from receiving statutory accident benefits due to her election under the Workplace Safety and Insurance Act, the insurer sought its expenses.

The arbitrator declined to award expenses to the insurer, finding that while the insurer was successful, the applicant faced a legitimate and novel preliminary issue concerning the interplay between the statutory accident benefits scheme and the workers' compensation scheme.

The arbitrator ordered that each party bear its own expenses.

The applicant, a school bus driver, was injured when her bus rolled forward and struck other vehicles.

She applied for statutory accident benefits but did not pursue a WSIB claim.

Two years later, after the insurer raised a defence under s. 59(1) of the SABS, she commenced a tort action against the bus manufacturer.

The arbitrator found that the applicant's delay in bringing the tort action and her failure to prosecute it demonstrated that her election to sue was made primarily for the purpose of claiming accident benefits.

Therefore, under s. 59(2) of the SABS, she was precluded from receiving statutory accident benefits.

The applicant sought expenses following a preliminary issue arbitration hearing regarding his employment status at the time of a motor vehicle accident.

Although the applicant was unsuccessful on the preliminary issue, the arbitrator awarded him his expenses.

The arbitrator found that the insurer's conduct unnecessarily prolonged the proceedings by requesting an unfounded last-minute adjournment, conducting a lengthy and mostly irrelevant cross-examination, calling witnesses who added no relevant evidence, and insisting on a separate expense hearing.

The applicant's expenses were assessed and fixed at $10,261.22 plus GST.

The applicant was injured in a motor vehicle accident and applied for an income replacement benefit.

The insurer denied the benefit on the basis that the applicant was not employed at the time of the accident.

The applicant, a seasonal construction worker, had stopped working months prior due to a work-related injury but believed he would be recalled.

The arbitrator found that as a seasonal worker, the applicant had no guarantee of continuous employment and was no longer an employee once he stopped working due to his prior injury.

The arbitrator concluded the applicant was not employed at the time of the accident.