Leonard Harry Kunka

The applicant sought judicial review of a Director's Delegate's decision upholding an arbitrator's rulings on interest and costs in an accident benefits dispute.

The applicant argued that interest on retroactive attendant care benefits should be calculated from an earlier date, and challenged the costs award.

The Divisional Court dismissed the application, finding that the interest issue was squarely governed by the court's prior decision in Grigoroff, which held that interest runs from the date the retroactive claim form is filed.

The court also found the costs award was highly discretionary and the Delegate's decision to uphold it was reasonable.

The applicant sought judicial review of a decision by a FSCO Director's Delegate that rescinded an Arbitrator's decisions awarding statutory accident benefits, a special award, and expenses.

The Divisional Court found that the Delegate's decisions regarding the special award, the benefits, and the Arbitrator's clarification decision were unreasonable, as the Arbitrator had jurisdiction and provided adequate reasons.

However, the Delegate reasonably found that the Arbitrator erred by awarding legal fees in excess of the maximum limits set out in the Dispute Resolution Practice Code.

The application for judicial review was granted in part, restoring the Arbitrator's decisions except for the legal costs, which were remitted for recalculation.

The insurer sought its legal expenses following the dismissal of the insured's appeal regarding an arbitration expenses decision.

The Director's Delegate denied the insurer's request for costs entirely, finding its submissions improper and vexatious.

The insurer had claimed expenses for the arbitration hearing over which the Delegate had no jurisdiction, sought an hourly rate only available to insured persons, and claimed transcript costs which are not recoverable under the rules.

Consequently, each party was ordered to bear their own expenses of the appeal.

The appellant appealed an arbitrator's decision regarding arbitration expenses and interest on retroactive attendant care and housekeeping benefits.

The Director's Delegate dismissed the appeal, finding that the arbitrator correctly concluded that solicitor/client costs are not prescribed expenses under the Insurance Act and reasonably exercised his discretion in reducing the claimed hours.

The Delegate also upheld the arbitrator's finding that, pursuant to Grigoroff, interest on attendant care benefits only begins to run 10 business days after the insurer receives a Form 1 assessment, not from the date the insurer is merely aware of the need.

State Farm appealed an arbitrator's Decision on Expenses and a subsequent Decision on a Motion (clarification order) regarding statutory accident benefits.

The Director's Delegate found that the arbitrator erred in law and violated procedural fairness by determining entitlement to Attendant Care, Housekeeping and Home Maintenance, and a special award, as these were not issues in dispute and no notice was given.

The Delegate also found the arbitrator lacked jurisdiction to issue the clarification order while the original decision was under appeal, and that the expenses awarded exceeded the maximums permitted by the Expense Regulation.

Both decisions were rescinded in their entirety.

Following an arbitration decision awarding the applicant attendant care and housekeeping benefits, the parties disputed the entitlement to and quantum of expenses.

The arbitrator found the applicant achieved a sufficient degree of success to warrant an award of expenses.

The applicant's request for full indemnity costs on a solicitor/client scale or a special award was rejected, as the arbitrator's discretion is constrained by the Insurance Act and the Dispute Resolution Practice Code.

The arbitrator awarded the applicant $67,688.74 in expenses, applying an enhanced hourly rate of $150.00.

The applicant's claim for interest on overdue payments was dismissed, as the insurer was not required to pay until 10 business days after receiving a Form 1 assessment.

The applicant brought a motion seeking clarification of an earlier decision on expenses following a finding of catastrophic impairment.

The insurer argued the arbitrator lacked jurisdiction under section 286 of the Insurance Act because the decision was under appeal.

Relying on an endorsement from the Divisional Court, the arbitrator assumed jurisdiction to clarify the decision.

The arbitrator clarified that the $361,520.30 awarded for attendant care and housekeeping benefits was not in addition to amounts already paid by the insurer, and confirmed that the parties had been given ample opportunity to make written submissions regarding the special award.

The applicant sought accident benefits following a motor vehicle accident.

The parties settled the substantive issues prior to arbitration, with the insurer paying $11,422.54 for disputed treatment plans.

The applicant sought expenses for the arbitration proceeding.

The arbitrator found the applicant was successful and awarded expenses of $3,625.55, inclusive of HST, after reducing the claimed hours since the matter did not proceed to a hearing.

The defendants brought a motion for summary judgment seeking to dismiss a social host liability claim arising from a party where an underage guest became intoxicated and was seriously injured in a car accident after leaving.

The court dismissed the motion, finding genuine issues of material fact that could not be fairly and justly determined on summary judgment.

The court also held that the established law on social host liability, particularly *Childs v. Desormeaux*, did not preclude a duty of care in this case, especially given the presence of underage drinking and the host's supervisory role.

The moving party, State Farm, brought a motion to quash a judicial review application commenced by the responding party, Waldock, regarding two interlocutory orders made by delegates of the Financial Services Commission of Ontario.

The court granted the motion to quash the judicial review of a procedural order regarding the appeal record, finding it premature.

However, the court dismissed the motion to quash the judicial review of an order that pre-emptively enjoined the responding party from seeking clarification from the arbitrator, finding exceptional circumstances and a potential breach of natural justice that warranted judicial review.

The respondent on appeal moved for an interim order to exclude two affidavits and an interim decision from the appeal record, arguing they constituted new evidence.

The Director's Delegate denied the motion, finding that the interim decision was a public record and not evidence, and that the affidavits were relevant to the appellant's allegations of procedural unfairness and denial of natural justice at the original hearing.

The documents were allowed to remain part of the appeal record.

The appellant insurer sought a stay of an arbitrator's order awarding the respondent insured over $360,000 in attendant care and housekeeping benefits, interest, a special award, and legal expenses.

The insurer argued it was denied procedural fairness because it was not given notice that the arbitrator would determine entitlement to and quantum of these benefits and the special award at the expense hearing.

The Director's Delegate found strong substance to the argued error of law regarding procedural fairness and granted a stay of the benefits, interest, special award, and a portion of the legal expenses pending the appeal.

The respondent's motion to estop the appeal and the appellant's cross-motion to strike affidavit material were dismissed.

The plaintiffs brought a motion under Rule 34.15 of the Rules of Civil Procedure seeking an order compelling a defendant to answer questions refused during an examination for discovery and to attend for a further discovery.

The action arose from a motor vehicle collision in which the plaintiffs alleged negligence, impairment, and negligent entrustment of a vehicle by the corporate defendant.

The court considered the relevance and proportionality of various refused questions relating to the defendant driver’s licensing history, the corporate defendant’s knowledge of his driving record, alcohol consumption prior to the collision, and identification of potential witnesses.

Applying Rules 31.06 and 29.2.03, the court held that most questions were relevant to the pleadings and properly discoverable.

The defendant was ordered to answer specified questions and provide additional witness information.

Insured homeowners sought summary judgment claiming entitlement to guaranteed replacement cost coverage under a homeowners insurance policy after their residence was destroyed by fire.

Instead of rebuilding on the original site, the insureds purchased a different home in another location and asserted that this constituted a “replacement” within the meaning of the policy’s endorsement.

The insurer maintained that the endorsement only modified the monetary limit of coverage and did not displace the policy’s requirement that replacement occur on the same site to qualify for replacement cost benefits.

The court held that the endorsement must be interpreted in conjunction with the underlying policy and that replacement cost coverage remained contingent on reconstruction at the same location.

Because the insureds relocated rather than rebuilding, their loss was limited to actual cash value coverage.

The applicant was injured in a motor vehicle accident and submitted an Application for Accident Benefits along with a Disability Certificate that marked non-earner benefits (NEBs) as 'N/A'.

The insurer purported to terminate NEBs in December 2006.

The applicant applied for mediation more than two years later.

The insurer argued the claim was statute-barred.

The arbitrator held that the limitation period was not triggered because the applicant had not submitted a completed application for NEBs at the time of the purported denial.

The applicant was therefore not precluded from proceeding to arbitration.

Liberty Mutual appealed an arbitration order awarding the respondent loss of earning capacity benefits (LECBs).

The insurer argued the arbitrator erred in calculating both the pre-accident earning capacity (PEC) and residual earning capacity (REC), specifically by accepting a PEC higher than the respondent's reported tax income and finding a REC of zero.

The Director's Delegate dismissed the appeal, holding that the arbitrator took an appropriately flexible approach to determining PEC for a self-employed individual and made no error of law in rejecting the insurer's proposed residual employment options.

The applicant, a self-employed aluminum installer, suffered a shoulder separation in a motor vehicle accident.

The insurer paid income replacement benefits for 104 weeks and then assessed his loss of earning capacity at zero.

At arbitration, the arbitrator determined the applicant's pre-accident earning capacity by estimating his cash income, which was not reported on his tax returns.

The arbitrator found the applicant's residual earning capacity to be nil, rejecting the insurer's proposed alternative occupations because they did not suit the applicant's personal and vocational characteristics, including his age, limited English skills, and preference for independent, non-routine work.

The applicant was awarded a weekly loss of earning capacity benefit of $251.45.

The applicant, a minor, claimed a death benefit following the death of her mother in a motor vehicle accident.

The insurer denied the claim on the basis that the applicant was living with her grandparents at the time of the accident and was therefore not principally dependent on her mother.

The arbitrator found that the living arrangement with the grandparents was temporary due to an abusive stepfather, and that the applicant remained principally dependent on her mother for financial support and care.

The applicant was awarded the death benefit of $10,020.00 plus interest and expenses.

The applicant, a minor who suffered severe injuries after being struck by a motor vehicle, applied for statutory accident benefits from two insurers.

Allstate paid benefits to date, while York Fire denied liability.

On a preliminary issue hearing, the arbitrator ordered both insurers to share equally in the payment of interim benefits pending the final arbitration to determine priority.

The arbitrator found jurisdiction to make interim orders under section 279(4.1) of the Insurance Act and held that the applicant established a prima facie case for entitlement and urgency.

The appellant appealed an arbitrator's decision denying her weekly income and dependent care benefits following a motor vehicle accident.

She requested an oral rehearing, a referral to the Medical and Rehabilitation Advisory Panel, and a reinstatement of benefits, arguing the arbitrator misapplied the test for 'substantial inability' to perform essential tasks as a homemaker.

The Director of Arbitrations dismissed the appeal, finding no grounds to order a rehearing or a medical referral.

The Director upheld the arbitrator's conclusion that while the appellant experienced pain and her tasks took longer, she did not suffer a substantial inability to perform her essential tasks.

The appellant was awarded her expenses for the appeal.