Michael Gillen

The accused, a psychological associate, was charged with three counts of fraud for allegedly misleading clients by using the title 'Doctor' and failing to explicitly identify himself as a psychological associate rather than a psychologist.

The clients had retained him for counseling and child custody assessments.

The court found that while the accused's use of the title 'Doctor' constituted a fraudulent act, the Crown failed to prove that this misrepresentation caused any financial deprivation or risk of loss to the complainants, as they likely would have retained him regardless of his specific licensing status.

Furthermore, the court found a reasonable doubt regarding whether the accused had the requisite mens rea for fraud.

The charges were dismissed.

The accused, a psychological associate licensed by the College of Psychologists of Ontario, was charged with three counts of fraud relating to fees paid for counseling services and child custody assessments.

The Crown alleged that the accused fraudulently represented himself as a psychologist rather than a psychological associate by using the title "Dr." in conjunction with his practice, thereby deceiving clients about his qualifications.

The court found that while the accused's use of the title "Dr." combined with his careful compliance with College guidelines in a manner that obscured his status as a psychological associate constituted "other fraudulent means" the Crown failed to prove the essential element of causation—that the misrepresentation caused financial loss or risk of loss to the complainants.

The court concluded that the complainants' lack of knowledge about the existence and qualifications of psychological associates, rather than the accused's conduct, was the cause of their inability to make an informed choice.

All charges were dismissed.

The accused was charged with perjury and breach of probation after testifying at a co-accused's trial.

The Crown alleged that the accused falsely confirmed under oath that an agreed statement of facts from his own prior guilty plea was completely true and correct.

The court reviewed the trial transcripts and found that the accused had actually recanted or refused to adopt portions of the prior statement, rather than confirming it in its entirety as alleged in the charge.

Because the accused did not utter the specific falsehood forming the actus reus of the charge, he was found not guilty of perjury and the related breach of probation.

Following a jury conviction for second degree murder arising from a domestic homicide, the court determined the appropriate period of parole ineligibility.

The offender stabbed his common law spouse during a heated argument in their shared home, resulting in her death.

The court considered the statutory framework for second degree murder sentencing, including ss. 235(1), 745(c), and 745.4 of the Criminal Code, as well as general sentencing principles under ss. 718–718.2.

Mitigating factors included the offender’s lack of criminal record and the impulsive nature of the violence, while aggravating factors included the sudden lethal attack against an unarmed intimate partner and the breach of trust inherent in domestic relationships.

Balancing these factors and comparable case law, the court imposed a life sentence with a 12‑year period of parole ineligibility.

The parties settled the substantive issue of entitlement to medical benefits for plastic surgery following a motor vehicle accident.

The only remaining issue was entitlement to expenses.

The insurer sought $1,000 in expenses and $1,500 for half of the Commission's assessment, arguing the arbitration was unnecessary.

The applicant argued the arbitration should be dismissed without costs.

The arbitrator reviewed the criteria under the Expense Regulation and found mixed success, no novel issues, and no vexatious conduct.

The arbitrator concluded that the most reasonable and fair outcome was for each party to bear their own costs.

The arbitration was dismissed.

The applicant insurer sought judicial review of decisions by a FSCO arbitrator and Director's delegate finding that the respondent insured suffered a catastrophic impairment under s. 2(1.1)(e)(i) of the Statutory Accident Benefits Schedule.

The insurer argued the arbitrator unreasonably interpreted 'reasonable period of time' for a Glasgow Coma Scale score.

The Divisional Court dismissed the application, holding that the standard of review is patent unreasonableness and the tribunal's decisions were supported by evidence and within its specialized jurisdiction.

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

Disputes arose and the applicant applied for arbitration at the Financial Services Commission of Ontario.

During a hearing to determine a motion, the applicant requested to withdraw his application without costs.

The insurer consented to the request.

The arbitrator granted the request and permitted the applicant to withdraw the application without costs.

The insurer appealed an arbitrator's decision finding that the claimant suffered a catastrophic impairment under the Statutory Accident Benefits Schedule following a motor vehicle accident.

The arbitrator relied on Glasgow Coma Scale (GCS) scores of 9 or less taken within the first hour of the accident.

The insurer argued the scores were confounded by intubation, seizures, and facial injuries, and were not taken within a 'reasonable period of time'.

The Director's Delegate dismissed the appeal, finding no palpable and overriding error in the arbitrator's factual findings that the early scores validly reflected brain impairment and were taken within a reasonable time.

Following an arbitration decision where the applicant recovered approximately $1,000, the insurer sought its expenses.

The insurer had made a settlement offer of $7,500 four months prior to the hearing, which the applicant rejected.

The arbitrator considered the criteria under Ontario Regulation 664 and ordered the applicant to pay half of the insurer's expenses, noting the importance of encouraging settlement.

The arbitrator also ruled that court reporter's fees are not an allowable disbursement under the tariff.

The applicant was injured in two separate automobile accidents.

She claimed income replacement benefits from the first accident and caregiver benefits from the second.

The insurer argued that under section 36(1) of the Statutory Accident Benefits Schedule, she could not receive both benefits concurrently, and sought to deduct an alleged overpayment from the first accident against the caregiver benefits.

The arbitrator held that section 36(1) applies only to benefits claimed from a single accident and does not bar receiving different benefits from separate accidents.

Furthermore, the insurer could not deduct past overpayments from current entitlements arising from a different accident under section 47(1).

The preliminary issues were resolved in favour of the applicant.

The applicant was injured in a motor vehicle accident and applied for enhanced statutory accident benefits, claiming a catastrophic impairment based on a brain impairment resulting in a Glasgow Coma Scale (GCS) score of 9 or less.

The insurer denied the claim, arguing the GCS scores were confounded by medical interventions and seizures, and that the applicant did not maintain the score for a reasonable time.

The arbitrator found that the applicant maintained a GCS score of 9 or less for about one hour after the accident, which was a reasonable time given the circumstances, and that the scores were not confounded by intubation during that period.

The applicant was designated as catastrophically impaired.

The applicant sought to vary or revoke an arbitration order that denied her post-156 week income benefits, arguing there was new evidence and a material change in her circumstances.

The Director of Arbitrations dismissed the application, finding that the applicant could not claim a material change because she was not continuously disabled at the 156-week mark.

Furthermore, the new medical evidence post-dated the critical period by over four years, did not undermine the original factual findings, and would not have affected the outcome.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them.

The applicant claimed ongoing disability due to a knee injury (a torn ACL) and sought further benefits, interest, and a special award.

The arbitrator found that the applicant's knee pain was not disabling and that the ACL injury was not caused by the accident, relying on medical evidence that the applicant could work without surgery.

The claim for ongoing benefits was dismissed.

However, the arbitrator awarded interest on late payments made prior to termination and a small amount for a four-day deficiency in the notice of termination.

The claim for a special award was dismissed as the insurer's conduct was not unreasonable.

The appellant brought a motion to restore her appeal of an arbitration decision regarding accident benefits, arguing her former counsel withdrew the appeal without her authority.

In the alternative, she sought an extension of time to file a new appeal and an order for interim expenses to obtain a hearing transcript.

The Director of Arbitrations dismissed the motion, finding that the appellant was bound by her counsel's withdrawal of the appeal, which was clear and relied upon by the respondent.

The request for an extension of time was denied due to the significant delay of over three years and the resulting prejudice to the respondent.

The request for interim expenses was also denied, as transcripts are not formally required and the appellant failed to establish that the respondent should bear the cost at this stage.

The appellant, a taxicab driver, was assaulted and struck on the head with a rock by a passenger during an attempted robbery.

He applied for statutory accident benefits, which were denied on the basis that the incident was not an 'accident' under section 2(1) of the SABS-1996.

The Arbitrator found that the vehicle was merely the location of the assault and did not directly cause the impairment.

On appeal, the Director's Delegate upheld the Arbitrator's decision, concluding that the assault, not the use or operation of the automobile, was the direct cause of the impairment.

The appeal was dismissed, but the respondent was ordered to pay the appellant's appeal expenses.

The applicant taxicab driver was assaulted by a passenger who struck him on the head with a rock in an attempted robbery.

Following the assault, the taxicab rolled into a ditch.

The applicant sought statutory accident benefits, which the insurer denied on the basis that the incident was not an 'accident' under the Schedule.

The arbitrator found that while the use of the taxicab met the purpose test, the injuries were not directly caused by the use or operation of the vehicle.

The vehicle was merely the location of the attempted robbery, and the intervening act of the assault was the direct cause of the impairment.

The application was dismissed.

The applicant sought reimbursement for disbursements incurred during an arbitration proceeding for statutory accident benefits.

The insurer had paid a portion of the claimed disbursements but disputed several items, including hotel stays, meals, expert witness fees, and medical assessments.

The arbitrator reviewed the disputed items under the Expense Regulation, allowing some travel and expert report fees while disallowing expenses that were more properly characterized as medical benefits or were deemed unreasonable.

The applicant was awarded an additional $180.26 in disbursements.

The applicant was injured in a motor vehicle accident, resulting in finger amputations and post-traumatic stress disorder, preventing him from returning to his pre-accident work as a construction labourer.

The insurer paid loss of earning capacity benefits based on a residual earning capacity (REC) of $25,301.00 annually for entry-level clerical work, as determined by a DAC assessment.

The applicant disputed this REC, arguing that clerical work was unsuitable given his personal and vocational characteristics and the possibility of psychological deterioration.

The arbitrator found that the proposed clerical occupation met the criteria under section 30 of the Schedule, noting that the applicant's young age, lack of specialized transferable skills, and social competence made the occupation suitable despite his lack of interest and the lower income compared to his pre-accident earnings.

The REC was confirmed at $25,301.00 annually.

The applicant was injured in a motor vehicle accident and received statutory accident benefits until the insurer terminated them three years later.

The applicant sought ongoing weekly income benefits and medical expenses, arguing the accident materially contributed to her severe, ongoing disabilities, including multi-focal cranial dystonia and Sjogren's Syndrome.

The arbitrator found that while the accident exacerbated pre-existing neck and back pain, the applicant had recovered from the accident-related injuries by May 1994.

Her ongoing disabilities were attributed to the natural progression of pre-existing conditions and a severe adverse reaction to medication.

The arbitrator also excluded surveillance evidence obtained by investigators who entered the applicant's home under false pretenses, finding it unduly invasive of her privacy.

The claims for ongoing benefits were dismissed, but the applicant was awarded her arbitration expenses.

The insurer appealed an arbitration order requiring it to pay income replacement benefits (IRBs) pending the resolution of a dispute over loss of earning capacity benefits (LECBs).

The Director's Delegate held that under the Statutory Accident Benefits Schedule, an insurer's obligation to pay IRBs does not automatically cease when it makes an offer of zero LECBs.

The appeal was dismissed, but the order was modified to require payment of IRBs only up to the date of the appeal decision, as the underlying dispute had been moved to the courts.