Ontario Financial Services Commission - Dispute Resolution Services

The applicant was injured in a motor vehicle accident and received weekly income benefits from the insurer, as well as collateral loss of income benefits from National Life.

The insurer deducted the gross amount of the National Life benefits from 80 per cent of the applicant's gross weekly income to calculate her weekly income benefit under Section 12(4)(b) of the Statutory Accident Benefits Schedule.

The applicant disputed this calculation, arguing that only the net after-tax amount of the collateral benefits should be deducted.

The arbitrator agreed with the applicant, finding that deducting the gross amount of taxable collateral benefits would unfairly penalize the applicant and contravene the legislative goal of matching 80 per cent of pre-accident gross income.

The insurer was ordered to calculate the deduction based on the net after-tax amount of the collateral benefits and to pay interest and expenses.

The applicant sought ongoing income replacement benefits, housekeeping benefits, and a catastrophic impairment designation following a 2007 motor vehicle accident.

The arbitrator dismissed all of the applicant's claims, finding her to be an unreliable and evasive witness whose testimony was contradicted by surveillance video, medical records, and her own prior statements.

Because the applicant's subjective reports were deemed not credible, the medical evidence relying on those reports was also rejected.

The applicant was ordered to pay $40,000 in arbitration expenses to the insurer.

Following the dismissal of the applicant's claims for statutory accident benefits, the successful insurer sought its arbitration expenses.

The applicant's former counsel had withdrawn, and the applicant did not appear at the expenses hearing.

The adjudicator found the insurer was entirely successful in its defence and entitled to its reasonable legal expenses.

Applying a global assessment approach, the adjudicator awarded the insurer $24,750 for fees and disbursements, inclusive of HST, noting the extensive hearing time and the importance of the surveillance investigation to the outcome.

The applicant was injured in a 2007 motor vehicle accident and sought statutory accident benefits.

In 2011, the parties settled the applicant's claim for housekeeping benefits for a specific period, and a consent order was issued.

Five years later, the applicant sought to pursue further housekeeping benefits for the period following the settlement.

The arbitrator held that the Commission was functus officio, as the 2011 consent order finally disposed of the housekeeping issue and the applicant could not bring multiple applications for the same weekly benefit.

The applicant's claim was dismissed and she was ordered to pay $4,000 in expenses.

The applicant and the insurer both applied to vary previous arbitration decisions based on alleged new evidence.

The applicant sought to vary a decision denying him income replacement, attendant care, and housekeeping benefits, relying on new medical reports and the testimony of an occupational therapist.

The Director's Delegate dismissed the applicant's application, finding that the evidence could have been obtained prior to the original hearing with due diligence and would not have led to a different result, particularly given the applicant's credibility issues and surveillance evidence showing him performing activities he claimed he could not do.

The insurer's application to vary a decision regarding the cost of a treatment plan based on a discount was also dismissed, as the insurer failed to prove the evidence could not have been obtained prior to the hearing.

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

In a previous decision, the arbitrator found that the insurer unreasonably withheld payments for two occupational therapy treatment plans, entitling the applicant to a special award under s. 282(10) of the Insurance Act.

In this decision on quantum, the arbitrator applied the Persofsky framework and weighed factors including the modest amount of benefits withheld, the lengthy delay, the insurer's failure to respect important SABS obligations, and the mitigating factor of significant SABS interest payable.

The arbitrator ordered the insurer to pay a special award of $26,000.00, representing approximately 60% of the maximum permissible amount, along with the applicant's expenses of $11,105.09.

The applicant was injured in a motor vehicle accident in 2000 and commenced an arbitration proceeding at FSCO in 2002.

A settlement was reached in 2004.

Fifteen years later, the applicant sought to rescind the settlement and continue the arbitration at FSCO.

The insurer argued that under the transitional provisions of O. Reg. 664, the proceeding was extinguished at FSCO and any new application must be brought before the Licence Appeal Tribunal (LAT).

The arbitrator held that pursuant to section 22(2) of O. Reg. 664, the proceeding was extinguished at FSCO because a settlement had been entered into, and directed that either party could reapply at the LAT.

Following a 17-day arbitration hearing where the insurer was completely successful in dismissing the applicant's claims for statutory accident benefits, the insurer sought its arbitration expenses.

The arbitrator reviewed the criteria under Rule 75.2 of the Dispute Resolution Practice Code, noting the insurer's complete success.

The arbitrator reduced the claimed hours to a reasonable amount and deducted $5,000 because the insurer unnecessarily prolonged the hearing by opposing a motion to redact solicitor-client privileged information.

The applicant was ordered to pay the insurer's expenses fixed at $32,000 inclusive of fees, disbursements, and HST.

Following a successful arbitration where the applicant's claims for caregiver benefits were dismissed, the insurer sought its arbitration expenses.

The arbitrator reviewed the criteria under Rule 75.2 of the Dispute Resolution Practice Code, noting the insurer's complete success, the applicant's failure to beat the insurer's settlement offer, and the applicant's improper conduct in resisting production of records.

The arbitrator awarded the insurer $18,000.00 in expenses, inclusive of legal fees calculated at Legal Aid rates and disbursements including court reporter fees.

The applicant sought statutory accident benefits following a 2010 motor vehicle accident, claiming catastrophic impairment and non-earner benefits.

The applicant had significant pre-existing conditions, including severe rheumatoid arthritis and injuries from a 2009 accident.

Following an appeal that remitted the issues for re-hearing, the arbitrator found that the applicant failed to meet the 'but for' test for causation.

The evidence demonstrated that her ongoing impairments and subsequent surgeries were the result of her pre-existing degenerative conditions rather than the 2010 accident.

Consequently, the claims for catastrophic impairment and non-earner benefits were denied.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, including two occupational therapy treatment plans, which the insurer denied.

After multiple arbitrations and appeals, the sole issue returned for redetermination was whether the applicant was entitled to a special award under s. 282(10) of the Insurance Act.

The arbitrator found that the insurer acted unreasonably by ignoring overwhelming medical evidence supporting the treatment plans, relying on two unreliable and error-ridden reports from its own assessors, and failing to reconsider its position when new information was provided.

The arbitrator concluded that the insurer's conduct was stubborn, immoderate, imprudent, and inflexible, and ordered the insurer to pay a special award, with the quantum to be determined after further submissions.

The insurer sought its expenses following a successful re-hearing of the insured's claims for statutory accident benefits.

The arbitrator found the insurer was entirely successful and entitled to its arbitration expenses.

After adjusting the hearing hours and applying a 1.5:1 ratio for preparation time due to the novelty of the issues and inconsistencies in the insurer's bill of costs, the arbitrator ordered the insured to pay $6,800 inclusive of HST for legal fees and disbursements.

The insurer sought its expenses of $24,213.20 following an arbitration hearing where it successfully argued the applicant was not catastrophically impaired.

The arbitrator found there was divided success, as the applicant was only 1% away from the catastrophic impairment threshold and was successful on some treatment plans.

The insurer's offers to settle were not compliant with the Code as they were on a full and final basis.

Considering the criteria in the Code, the arbitrator ordered that each side bear its own expenses.

The applicant sought her expenses for a 2016 arbitration hearing.

The insurer argued the request was out of time.

The arbitrator found that under Rule 79.1 of the Dispute Resolution Practice Code, a request for an expense hearing must be made within 30 days of the decision.

Because the applicant did not request the expenses until August 2018, nearly two years after the decision, the motion was dismissed as out of time.

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

Prior to the arbitration hearing, the insurer conceded the issue and paid the IRBs retroactively.

The arbitrator held that interest on the overdue IRBs began to accrue from the date they were initially terminated, as the insurer bears the consequence of a decision not to pay benefits later found owing.

The arbitrator also awarded a special award of $36,280.00, finding the insurer acted unreasonably by ignoring the conclusions of its own medical and vocational assessors, who noted that the alternative job options proposed did not provide the same remuneration as the applicant's pre-accident employment.

The insurer was ordered to pay $25,000.00 in expenses.

The applicant sought statutory accident benefits following two minor motor vehicle accidents in 2011 and 2012.

He had previously suffered a severe workplace injury in 2002, resulting in chronic pain and psychological impairments.

The arbitrator found the applicant's evidence lacked credibility, largely due to extensive surveillance showing him performing activities he claimed he could not do, and his failure to disclose his pre-existing conditions to his assessors.

Applying the 'but for' test for causation, the arbitrator concluded that the applicant's impairments were solely attributable to his 2002 workplace injury and that he suffered no verifiable decline in function following the motor vehicle accidents.

All claims for non-earner benefits, attendant care benefits, medical benefits, and cost of examinations were dismissed.

The Applicant was involved in three motor vehicle accidents (2003, 2005, 2006).

In a previous arbitration decision, it was determined that the Applicant was catastrophically impaired as a result of the 2003 accident.

The Applicant sought a determination that he was also catastrophically impaired as a result of the 2005 and/or 2006 accidents, arguing that they materially contributed to his impairment.

The Arbitrator dismissed the claim, applying the reasoning from a recent appeal decision that a person who is already catastrophically impaired for a mental or behavioural disorder cannot become 'more' catastrophically impaired by subsequent accidents.

The Arbitrator also held that the 'but for' test of causation applied, and since the Applicant was already catastrophically impaired from the 2003 accident, the subsequent accidents did not cause the catastrophic impairment.

The applicant sought non-earner benefits, medical and rehabilitation benefits, and a special award following a 2012 motor vehicle accident.

The arbitrator dismissed all claims, finding the applicant lacked credibility due to numerous inconsistencies, misrepresentations, and evidence of symptom exaggeration.

The arbitrator placed little weight on the applicant's treating practitioners, preferring the evidence of the insurer's assessors who conducted more thorough document reviews and found the applicant did not suffer a complete inability to carry on a normal life and that the proposed treatments were not reasonable and necessary.