Michael A. Yermus

The applicant was injured in a motor vehicle accident and sought various statutory accident benefits from his insurer, including income replacement, attendant care, housekeeping, medical benefits, and the cost of examinations.

The insurer had terminated income replacement benefits on the basis of non-compliance with a work-hardening program.

The arbitrator found that the applicant had participated in the program and that his severe back injuries and chronic pain rendered him completely incapable of engaging in suitable alternative employment.

The arbitrator awarded ongoing income replacement benefits, partial attendant care and housekeeping benefits, the requested medical benefits and examinations, and interest.

Furthermore, the arbitrator ordered the insurer to pay a maximum special award of 50% for unreasonably withholding income replacement benefits after receiving evidence of the applicant's compliance with rehabilitation.

The appellant insurer appealed an arbitration decision that found the respondent's application for arbitration was not statute-barred.

The dispute centered on when the 90-day limitation period under s. 281.1(2)(b) of the Insurance Act commenced following a failed mediation.

The Director's Delegate held that the arbitrator erred in strictly applying the Rules of Civil Procedure to conclude that delivery of the mediator's report to the claimant's representative was required, finding instead that the period runs from the earlier of delivery to the insured or their representative.

Furthermore, the Delegate found that the arbitrator breached natural justice by denying the insurer the opportunity to cross-examine the respondent's legal assistant on her affidavit regarding the receipt date of the report.

The appeal was allowed, the arbitration decision rescinded, and the matter remitted for a new preliminary issue hearing.

The appellant insurer sought to appeal a preliminary arbitration decision which found that the respondent insured had not missed the 90-day limitation period to apply for arbitration after mediation.

The arbitrator had held that the limitation period only began to run upon service of the mediator's report on the insured's representative, and that deemed service by mail could not be relied upon without a post office stamp.

The Director's Delegate accepted the appeal from the preliminary order, finding that it raised significant issues of law regarding service and limitation periods that could resolve the entire dispute and avoid a lengthy arbitration.

However, the appellant's request for a stay of the arbitration proceeding was denied.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits.

Following an unsuccessful mediation, the insurer argued that the applicant's subsequent application for arbitration was time-barred because it was filed more than 90 days after the date of the mediator's report.

The arbitrator held that the 90-day limitation period under section 281.1(2)(b) of the Insurance Act is triggered by the receipt or deemed receipt of the mediator's report, not the date of the report itself.

Finding that the applicant's counsel did not receive the report until a later date, the arbitrator concluded the application was timely and the applicant was not precluded from proceeding to arbitration.