Susan Bromley

The insurer, Aviva Canada Inc., sought expenses following an arbitration hearing where it was entirely successful on all substantive issues regarding the calculation of the applicant's pre-accident earning capacity and loss of earning capacity benefits.

The applicant also sought expenses, arguing that the arbitration involved a novel issue.

The arbitrator found that the issues were neither complex nor novel, as the law regarding the calculation of pre-accident earning capacity was well established.

Applying the criteria under the Expense Regulation, the arbitrator awarded the insurer $6,000.00 in expenses, based on a pragmatic approach and a ratio of two hours of preparation time to one hour of hearing time.

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

After his counsel was removed from the record, the applicant represented himself but was found to lack the ability to meaningfully participate in the dispute resolution process.

The hearing was adjourned to allow him to seek representation or for the Public Guardian and Trustee to intervene.

When the applicant failed to attend the rescheduled hearing, the insurer requested that the arbitration be dismissed.

The arbitrator denied the request, finding it would be unfair to extinguish the applicant's rights while he lacked capacity, and instead ordered the arbitration stayed.

The respondents were injured in a motor vehicle accident and entered into a settlement with their insurer, Aviva Canada Inc., regarding statutory accident benefits.

They later sought to rescind the settlement after the two-day cooling-off period, arguing the Settlement Disclosure Notice (SDN) did not comply with the Settlement Regulation.

The Arbitrator found the SDN deficient and allowed the rescission.

On appeal, the Director's Delegate confirmed the Arbitrator's decision, holding that the SDN failed to provide the mandated information regarding rescission in clear and straightforward language directed towards an unsophisticated person, and that this defect was not merely technical.

The appellant appealed an arbitrator's decision finding that her 1999 motor vehicle accident did not cause her 2001 discectomy and chronic pain, and that she did not sustain a catastrophic impairment.

The Director's Delegate upheld the arbitrator's factual findings on causation, noting they were supported by evidence and not based on a misapprehension of law.

However, the Delegate found that the arbitrator erred by failing to follow the required methodology under the AMA Guides to calculate the appellant's Whole Person Impairment (WPI) for her other impairments.

The matter was remitted to the arbitrator to determine the specific impairment ratings and whether they combine to 55% or more WPI.

The applicant, who was confined to a wheelchair following a motor vehicle accident, sought interim attendant care, caregiving, and housekeeping benefits after the insurer terminated them at the 104-week mark.

The insurer relied on a surveillance video and medical assessments suggesting the applicant was malingering.

The arbitrator found the surveillance video to be of questionable probative value and tainted the insurer's medical evidence.

Applying the prima facie and urgency/necessity tests, the arbitrator granted the interim benefits, noting the extraordinary hardship on the applicant's family who were providing his care.

The appellant appealed an arbitration decision regarding the calculation of his loss of earning capacity benefits (LECB) and the denial of a special award following a motor vehicle accident.

The Director's Delegate found that the Arbitrator made no errors of law in calculating the pre-accident earning capacity by averaging the appellant's sporadic work history, nor in her assessment of the residual earning capacity based on the REC DAC reports.

The appeal was dismissed, as the issues raised primarily concerned the weighing of evidence rather than questions of law, and the Arbitrator properly applied the test for a special award.

The applicant sought a determination that she sustained a catastrophic impairment as a result of a 1999 motor vehicle accident.

She claimed the accident caused a lumbar disc rupture that led to chronic pain and significant impairment.

The arbitrator found the applicant's testimony unreliable due to numerous inconsistencies with contemporaneous medical records, which showed no complaints of low back pain until over a year after the accident and referenced a possible second accident in 2001.

The arbitrator concluded the applicant failed to prove on a balance of probabilities that the 1999 accident caused her impairments or that she met the 55% whole person impairment threshold, dismissing the application.

The appellant sought to introduce fresh evidence on an appeal regarding his pre-accident and residual earning capacity following a motor vehicle accident.

The Director's Delegate applied the Palmer criteria and refused leave to file the fresh evidence, finding that the medical assessment was not relevant to the issues before the arbitrator and the union letter could have been adduced at the original hearing.

The request to file fresh evidence was dismissed.

The insured claimed catastrophic impairment benefits following a motor vehicle accident, relying on a positive Designated Assessment Centre (CAT DAC) finding.

The insurer denied the benefits and sought to challenge the CAT DAC finding in the dispute resolution process.

The arbitrator ruled that the insurer was precluded from doing so, finding that the Court of Appeal's comments in Fernandes regarding remedies at the Commission were obiter.

On appeal, the Director's Delegate rescinded the arbitrator's order, holding that Fernandes is binding and establishes that insurers may challenge a CAT DAC finding within the dispute resolution system.

The appellant insurer appealed an arbitrator's decision awarding interest on dependant death benefits to the respondents.

The parties agreed that the arbitrator erred in law by finding the respondents directly dependent on the deceased, rather than dependent on the deceased's spouse.

The Director's Delegate rescinded the arbitrator's orders regarding the respondents' entitlement to interest and a special award.

The issue of the respondents' entitlement to interest was remitted to arbitration for a new hearing to determine whether the respondents' own actions prevented the insurer from assessing their entitlement, which would trigger an exception to the mandatory interest provision.

The appellant insurer sought to appeal an arbitrator's preliminary decision awarding interest on dependent death benefits and directing a special award hearing.

The Director's Delegate granted leave to appeal, combined the two appeal proceedings, and stayed the arbitrator's orders regarding interest and the special award hearing pending the outcome of the appeal.

The Delegate denied requests from both parties to introduce fresh evidence on the appeal.

Following a fatal motor vehicle accident, the deceased's partner and her two children applied for spousal and dependant death benefits.

The insurer initially denied the claims due to insufficient evidence of cohabitation and dependency.

The applicants sought interest on the delayed benefit payments and arbitration expenses.

The arbitrator found that the partner was not entitled to interest because she failed to correct an error in her initial statement regarding the cohabitation date, which prevented the insurer from determining entitlement.

However, the children were awarded interest as the insurer had sufficient evidence of their dependency but delayed payment.

The applicants were also awarded their arbitration expenses, and a further hearing was ordered to determine if a special award was warranted for the delayed payments to the children.

The applicant was injured in a motor vehicle accident and determined to have suffered a catastrophic impairment by a Designated Assessment Centre (CAT DAC).

The insurer refused payment of supplemental benefits and sought to challenge the CAT DAC determination as a defence in the arbitration.

The arbitrator held that the insurer is precluded from collaterally attacking the catastrophic determination made by the CAT DAC, as the dispute resolution scheme under the Insurance Act forms a complete code.

The insurer may only challenge the appropriateness of specific benefits claimed as a result of the catastrophic designation.

The applicant sought a spousal death benefit following the fatal injury of her partner in a motor vehicle accident.

The insurer denied the benefit, arguing she was not a spouse under the Insurance Act, and paid the benefit amount into court pursuant to section 271 of the Act.

The insurer argued this payment transferred jurisdiction to the Superior Court of Justice, precluding arbitration.

The arbitrator held that section 271 does not interfere with an insured's unfettered right to choose the forum for dispute resolution under section 281.

The applicant was not precluded from proceeding to arbitration, and the request to stay the arbitration was denied.

The applicant was injured in a rear-end motor vehicle accident and received income replacement benefits (IRBs) from the insurer.

The insurer terminated IRBs at the 104-week mark based on a disability DAC assessment concluding the applicant could return to work.

The applicant sought ongoing IRBs and funding for vocational retraining as a computer network technician, arguing he lacked the transferable skills for the entry-level jobs proposed by the insurer.

The arbitrator found that the insurer and its assessors overestimated the applicant's transferable skills and that he was completely unable to engage in reasonably suitable employment without retraining.

The arbitrator ordered the insurer to pay ongoing IRBs and fund a vocational retraining program, and recalculated the IRBs to include additional pre-accident cash income.

Claims for massage therapy, repayment of IRBs, and a special award were dismissed.

The applicants, Ontario residents injured in a motor vehicle accident in California, sought statutory accident benefits from the Motor Vehicle Accident Claims Fund.

After the case law changed unfavourably during the arbitration process, the applicants sought to withdraw their application.

The Fund consented to the withdrawal but sought its expenses.

The arbitrator permitted the withdrawal and, after considering the criteria for awarding expenses including degree of success, novelty of issues, and conduct of the parties, ordered that each party bear its own expenses.

The applicant was injured in a motor vehicle accident and received statutory accident benefits from the insurer.

The applicant sought payment of $2,500 for a physiatrist's assessment under section 24 of the Statutory Accident Benefits Schedule.

The insurer denied the claim, arguing the assessment was not incurred for the purpose of the Schedule.

The arbitrator found that at the time the report was requested, the insurer was paying income replacement benefits and no benefits were in dispute.

The report was requested by the applicant's counsel for a medical-legal opinion on employability.

The arbitrator concluded the assessment was not a reasonable expense incurred for the purpose of the Schedule and dismissed the arbitration.