Lee Samis

The insurer brought a motion to adjourn an upcoming arbitration hearing until the insured attended three insurer medical examinations (IMEs) to assess her entitlement to income replacement benefits.

The arbitrator denied the adjournment, finding that the insurer failed to provide adequate notice of the consequences of non-attendance and failed to specify the qualifications of the practitioners.

Furthermore, the insurer had multiple prior opportunities over a year and a half to request the IMEs but failed to do so in a timely manner.

The prejudice to the insured caused by further delay outweighed any prejudice to the insurer, which was of its own making.

The appellant insurer failed to give the respondent insurer the required 90-day written notice of its intention to dispute liability for statutory accident benefits under O. Reg. 283/95.

The appellant argued that a letter from the insured's counsel to the respondent constituted sufficient notice, and alternatively, that a subsequent change in case law justified an extension of the notice period.

The Court of Appeal dismissed the appeal, holding that a third-party letter does not satisfy the strict notice requirements of the Regulation, that courts cannot grant equitable relief from forfeiture to bypass the statutory scheme, and that evolving jurisprudence does not render the 90-day period insufficient to make a liability determination.

The appellant insurer sought to compel the respondent insured to produce documents from a related tort action in a statutory accident benefits arbitration.

The arbitrator dismissed the request, relying on the principles underlying the deemed undertaking rule.

On appeal, the Director's Delegate upheld the arbitrator's decision, finding that compelling production of defence medicals and discovery transcripts from the tort action would distort the arbitration process and prejudice the insured, particularly given the insurer's ability to conduct its own medical examinations under the Statutory Accident Benefits Schedule.

The insurer brought a motion seeking relief from the implied undertaking rule to compel the production of the applicant's related tort file, including medical and financial documentation.

The applicant opposed the motion, arguing that the documents were protected by the deemed undertaking rule under Rule 30.1 of the Rules of Civil Procedure.

The arbitrator held that while arbitrators have the jurisdiction to grant relief from the implied undertaking rule under sections 20 and 22 of the Insurance Act, the insurer failed to demonstrate special circumstances or specific relevance to justify overcoming the presumption of privacy.

The motion for production was denied.

The insurer appealed a preliminary decision holding that the insured's application for mediation was not time-barred.

The insurer had stopped paying income replacement benefits after receiving a report from a designated assessment centre stating the insured was no longer disabled.

The insurer argued the two-year limitation period began when it stopped payments.

The Director's Delegate dismissed the appeal, finding that the insurer must clearly and unequivocally communicate its refusal to pay benefits, including providing information about the dispute resolution procedure, to trigger the limitation period.

The insurer failed to prove it had done so more than two years before the mediation application.

The applicant was injured in a motor vehicle accident and received income replacement benefits.

The insurer terminated benefits and later argued that the applicant was precluded from proceeding to arbitration because he failed to commence mediation within the two-year limitation period.

The arbitrator found that the insurer failed to prove it had communicated a clear and unequivocal written refusal of benefits to the applicant.

The insurer's letters either did not constitute a refusal, were not received by the applicant, or failed to inform the applicant of the dispute resolution process.

Therefore, the limitation period had not expired, and the applicant was permitted to proceed to arbitration.

The respondent was injured while operating a Cushman Turf-Truckster in the course of his employment at a golf course.

He applied for statutory accident benefits from his wife's automobile insurer, the appellant.

The arbitrator found that the turf-truckster was an automobile and that the employer's private accident insurance policy was not a worker's compensation plan, entitling the respondent to benefits.

On appeal, the Director's Delegate reversed the decision in part, holding that the turf-truckster is not an automobile in ordinary parlance and was not required to be insured under the Compulsory Automobile Insurance Act or the Off-Road Vehicles Act at the time of the off-road incident.

The appeal was allowed and the respondent was found not entitled to statutory accident benefits.

The applicant was injured in a motor vehicle accident and subsequently signed a full and final release settling her claims for statutory accident benefits for $16,750.

She later sought to proceed with arbitration, arguing the settlement was unenforceable due to a clerical error regarding the accident date, inadequate disclosure of the commuted value of benefits under the Settlement Regulation, and mistaken assumptions.

The Arbitrator held that the clerical error was subject to rectification, the applicant failed to prove the settlement was improvident or based on a mistaken assumption, and the insurer's disclosure statement strictly complied with the Settlement Regulation by providing the commuted value based on maximum policy limits.

The request to proceed with arbitration was denied.

The insurer appealed an arbitration decision regarding the calculation of Income Replacement Benefits (IRBs) and Loss of Earning Capacity Benefits (LECBs) for a self-employed seasonal truck driver.

The Director's Delegate held that the extrapolation provisions in s. 9(7) of the SABS-1994 applied because the insured was on a seasonal layoff.

However, the Delegate varied the calculation, finding that all business expenses must be deducted from revenues before extrapolation.

The Delegate also varied the LECB calculation, determining that the insured's pre-accident earning capacity should be based on his history as a truck driver rather than a theoretical position as a driving instructor.

The appeal was allowed in part.

The applicant was injured while driving a three-wheeled turf-truckster in the course of his employment at a golf club.

He applied for statutory accident benefits from his wife's automobile insurer.

The insurer denied the claim, arguing the turf-truckster was not an 'automobile' and that it was exempt from paying benefits under section 59 of the Schedule because the employer provided a private insurance plan in lieu of workers' compensation.

The arbitrator held that the turf-truckster was an automobile both in ordinary parlance and under the statutory definition, as it was a motor vehicle required to be insured when operated on a highway.

The arbitrator further held that the employer's private insurance plan did not constitute a 'workers' compensation law or plan' under section 59, and therefore the insurer was not exempt from paying benefits.

The insurer appealed an arbitration decision finding that the insured, a high school student injured in a motor vehicle accident, continued to qualify for Education Disability Benefits (EDBs) and was entitled to an offer for Loss of Earning Capacity Benefits (LECBs).

The Director's Delegate upheld the arbitrator's finding that the insured was substantially unable to continue his education, noting that the test involves an individualized inquiry and that mere attendance at school is not sufficient.

However, the Director's Delegate allowed the appeal regarding LECBs, concluding that the insurer's obligation to make an LECB offer is not triggered if it stops paying weekly benefits before the 104-week mark, pending the resolution of the dispute over entitlement.

Zurich Insurance Company appealed an arbitration order granting the respondent ongoing weekly income benefits, housekeeping expenses, and a special award.

The Director's Delegate found that the arbitrator erred in her interpretation of the post-156 week test under s. 13(8)(b) of the Statutory Accident Benefits Schedule by improperly categorizing the respondent's pre-accident activities and misinterpreting 'substantially all' to mean 'most'.

The Delegate also rescinded the special award, finding that Zurich had an acceptable basis for terminating the benefits.

The appeal was allowed, and a new arbitration hearing was ordered.

The appellant insurer appealed an interim arbitration decision, arguing that the arbitrator should not continue to conduct the hearing due to a reasonable apprehension of bias.

The Director's Delegate allowed the appeal to proceed solely on the issue of whether the arbitrator could continue.

The Director's Delegate found that the combination of procedural confusion, the rulings made by the arbitrator, and the contentious nature of the preliminary hearing established a reasonable apprehension of bias.

The appeal was allowed, and it was ordered that the arbitration hearing must be conducted by a different arbitrator.

The appellant appealed an arbitrator's decision regarding the calculation of weekly income benefits under the Statutory Accident Benefits Schedule.

The appellant argued that his income should be averaged only over the 33 weeks he actually worked in the 52 weeks preceding the accident, rather than the full 52 weeks.

He also argued that the arbitrator erred by not following a previous appellate decision, raising the issue of whether stare decisis applies to the tribunal.

The Director of Arbitrations held that appellate decisions of the Director are binding on first-instance arbitrators.

However, the Director agreed with the arbitrator's interpretation of the Schedule, finding that the gross weekly income must be averaged over the full 52 weeks, regardless of periods of unemployment.

The appeal was dismissed.

The respondent pedestrian was struck and injured by a backhoe in a construction zone.

She claimed statutory accident benefits under her personal automobile insurance policy with the appellant.

The appellant denied coverage, arguing the backhoe was not an 'automobile' under the Insurance Act or the Statutory Accident Benefits Schedule.

The arbitrator found the backhoe was an automobile.

On appeal, the Director's Delegate upheld the decision, finding that the broad definition of 'automobile' in section 1 of the Insurance Act, which includes self-propelled vehicles, applied and was not ousted by section 224(1).

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

Allianz paid benefits but later disputed its obligation, arguing that General Accident was the priority insurer.

The insurers disputed whether Ontario Regulation 283/95, which mandates private arbitration for priority disputes, applied retroactively to this case.

The arbitrator held that the Regulation does not apply retroactively to disputes where the application for benefits was received before the Regulation came into force.

On the priority issue, the arbitrator found that the applicant's representative had made a valid election under section 268(5) of the Insurance Act to claim benefits from Allianz, and therefore Allianz was required to pay the benefits.

The applicant was injured in a motor vehicle accident while a passenger in a vehicle insured by Allstate.

He applied for statutory accident benefits from Allstate, which refused payment on the basis that he was a dependant of his mother and should claim from her insurer, General Accident.

The arbitrator held a preliminary issue hearing to determine priority.

Finding that the applicant operated a cash business and was not principally dependent for financial support on his mother, the arbitrator concluded he was not a dependant.

Allstate was ordered to pay the benefits.

The applicant was denied his expenses due to his misrepresentations regarding his employment and income.

The respondent was injured when he rode his bicycle into a pothole after being distracted by the sound of a car engine starting.

He claimed statutory accident benefits under an automobile insurance policy.

The arbitrator found that the starting of the car engine constituted the use or operation of an automobile and was the precipitating cause of the injury.

The insurer appealed.

The Director's Delegate dismissed the appeal, holding that the phrase 'causes, directly or indirectly' in the Schedule allows for a more remote causal link than proximate cause, and that the starting of the engine triggered the sequence of events leading to the fall.

The respondent was injured in a motor vehicle accident while vacationing in Vietnam.

She applied for statutory accident benefits under a standard motor vehicle liability policy issued by the appellant.

The appellant denied the claim on the basis that the policy applies only to accidents in Canada, the United States, or on a vessel travelling between the ports of those countries.

An arbitrator initially held that the Statutory Accident Benefits Schedule operated without territorial limitation.

On appeal, the Director of Arbitrations allowed the appeal, finding that the Schedule does not operate independently of the contract of insurance, which contains a valid territorial limitation.

The respondent was therefore not eligible to receive benefits for the accident in Vietnam.

The appellant insurer appealed an arbitration decision that calculated the respondent's weekly income benefit based on his pre-accident salary as an employee of his closely-held corporation, rather than treating him as self-employed.

The Director of Arbitrations dismissed the appeal, finding that the respondent's consistent pattern of salary-based payments and treatment as an employee justified the arbitrator's conclusion.

The arbitrator did not err in her interpretation and application of the Statutory Accident Benefits Schedule.