OFSCDRS 1997

Following an arbitration decision awarding weekly income benefits to the applicant, the arbitrator considered whether the insurer was liable for a special award under s. 282(10) of the Insurance Act.

The arbitrator found that the insurer acted unreasonably and in bad faith by terminating the applicant's benefits based on a flimsy excuse and ignoring substantial medical evidence of her disability.

The insurer was ordered to pay a special award of $7,500 plus interest.

The respondent's husband died in a motor vehicle accident.

The respondent applied for a death benefit as a dependant under the Statutory Accident Benefits Schedule.

The arbitrator awarded the benefit, finding the respondent was principally dependent on her husband because the family's social assistance cheque was made payable to him.

On appeal, the Director's Delegate rescinded the order, holding that where both spouses are dependent on government assistance, neither can be said to be principally dependent for financial support on the other.

The applicant was injured in a motor vehicle accident and received weekly income benefits for 156 weeks.

The insurer terminated benefits, and the applicant sought ongoing benefits under section 12(5)(b) of the Statutory Accident Benefits Schedule, claiming she was continuously prevented from engaging in any suitable employment due to back, shoulder, and psychiatric issues.

The arbitrator found that the applicant's pre-existing osteoarthritis and deconditioning were the primary causes of her ongoing complaints, and that she had recovered sufficiently from her accident-related soft tissue injuries to return to her pre-accident employment as a cleaner.

The application for ongoing benefits and a special award was dismissed, though the applicant was awarded her expenses for the arbitration.

The applicants, parents of a man fatally injured in a motor vehicle accident, claimed death benefits from the insurer.

The insurer denied the claim, arguing it was incomplete and submitted late under subsection 59(3) of the Statutory Accident Benefits Schedule.

The arbitrator found that the application submitted by the applicants' former solicitor did not sufficiently indicate a claim for death benefits, but rather focused on funeral expenses and a Family Law Act claim.

As the applicants did not argue a reasonable excuse for the delay, the insurer was entitled to rely on subsection 59(3) to deny the claim.

The applicants were awarded their expenses for the hearing.

The applicant sought statutory accident benefits following a motor vehicle accident.

In a prior preliminary decision, the arbitrator found the applicant misrepresented her involvement in a second accident and ordered her to pay a $1,000 assessment before the hearing could proceed.

The applicant failed to pay the assessment and did not appear at the scheduled hearing.

Consequently, the arbitrator dismissed her application for arbitration.

The insurer's claim for repayment of benefits was adjourned to a later date to ensure fairness, as the applicant may have mistakenly believed no hearing would proceed until the assessment was paid.

The arbitrator also confirmed jurisdiction to hear the insurer's repayment claim under the amended section 282(3) of the Insurance Act.

The applicant sought statutory accident benefits, including weekly income benefits and housekeeping expenses, following a 1991 motor vehicle accident.

The insurer terminated benefits in 1994.

The arbitrator found the applicant lacked credibility due to contradictory statements made to the Workers' Compensation Board, the insurer, and her doctors regarding the cause of her disability.

The arbitrator concluded that the applicant failed to establish she was disabled as a result of chronic pain caused by the accident, and that her cognitive impairment was more likely due to prescription drug dependency than a traumatic brain injury.

The claims for benefits were dismissed, but the applicant was awarded 75% of her reasonable legal fees and all disbursements.

The appellant was injured in a motor vehicle accident and received weekly income benefits until they were terminated.

He subsequently signed a release and received a settlement cheque, but later applied for arbitration seeking further benefits.

The arbitrator found that while the release document was deficient, the parties had reached a binding final settlement.

On appeal, the appellant argued the arbitrator exceeded her jurisdiction by deciding the broader issue of settlement rather than strictly the validity of the release as framed in the pre-hearing letter.

The Director of Arbitrations dismissed the appeal, holding that the arbitrator was not strictly bound by the pre-hearing letter and had jurisdiction to determine the real issue in dispute based on the evidence presented.

The appellant, a registered nurse working on an 'as-needed' basis for home-care agencies, was injured in a motor vehicle accident.

The insurer re-classified her weekly income benefits from section 12 (employment-related) to section 13 (non-earner) because she was not on an active assignment at the time of the accident.

The arbitrator upheld this re-classification.

On appeal, the Director's Delegate rescinded the arbitrator's order, finding that the appellant maintained an ongoing employment relationship with the agencies despite the fluctuating nature of her assignments.

The appeal was allowed, and the appellant was found to qualify for weekly income benefits under section 12(2) of the Schedule.

The applicant was injured in a motor vehicle accident and claimed statutory accident benefits for a rehabilitation case manager and attendant care services provided by her daughter.

The insurer disputed the need for a case manager and the extent of attendant care required.

The arbitrator found that the applicant's ongoing impairment and need for coordinated rehabilitation justified the services of a case manager.

Furthermore, relying on the applicant's credible testimony and supportive occupational therapy assessments, the arbitrator awarded attendant care benefits at the claimed rate of $10 per hour for four hours a day, five days a week.

The applicant was injured in a motor vehicle accident and received weekly income benefits from Royal Insurance until they were terminated based on an exclusion provision.

The applicant commenced a court action against Royal for statutory accident benefits and subsequently applied for arbitration against both Royal and the Motor Vehicle Accident Claims Fund.

The arbitrator dismissed the arbitration proceeding against Royal to avoid a multiplicity of proceedings, as the court action was more comprehensive and commenced first.

The arbitration against the Fund was adjourned until the court determines the validity of Royal's exclusion defence, as the claim against the Fund would only crystallize if the exclusion defence is upheld.

The appellant, who was injured in a motor vehicle accident, appealed an arbitration order limiting his weekly income benefits to the minimum rate of $185.60.

He claimed entitlement to the maximum $600 per week based on his self-employment income from a moving business.

The Director's Delegate dismissed the appeal, upholding the arbitrator's finding that the appellant's business records were unreliable and his testimony lacked credibility.

The appellant failed to meet the onus of establishing his pre-accident income and expenses on a balance of probabilities.

The applicant was injured in motor vehicle accidents in 1991 and received weekly income benefits until the insurer terminated them.

The insurer raised a preliminary issue that the applicant's request for arbitration was barred by the two-year limitation period under section 281(5) of the Insurance Act.

The arbitrator found that the insurer provided clear and unequivocal notice of termination on November 22, 1993, after an independent medical examination.

The arbitrator rejected the applicant's arguments that the insurer waived the limitation period through ongoing negotiations, that a rolling limitation period applied, or that the arbitrator had jurisdiction to extend the statutory limitation period.

The application for arbitration was dismissed as statute-barred, but the applicant was awarded expenses.

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

A dispute arose over the calculation of his residual earning capacity for the purpose of determining his loss of earning capacity benefit.

The applicant argued that his residual earning capacity should be calculated using the formula in section 81 of the Statutory Accident Benefits Schedule, taking into account his true marginal tax rate due to his receipt of taxable long-term disability and Canada Pension Plan benefits.

The arbitrator held that the insurer was entitled to use the table prescribed by section 82 of the Schedule, which does not incorporate an insured's marginal income tax rate, and that the calculation of net weekly income does not require taking into account income tax payable on other sources of income.

The appellant appealed an arbitration order denying her additional weekly income benefits following a motor vehicle accident.

The arbitrator had found that the appellant was not substantially unable to perform the essential tasks of her pre-accident employment, relying on a Functional Capacities Assessment and the opinions of several medical specialists.

On appeal, the Director's Delegate held that the arbitrator's findings were supported by the evidence and declined to interfere with his assessment of the medical reports and witness credibility.

The appeal was dismissed, and no appeal expenses were awarded.

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 sought an assessment of legal expenses incurred during an arbitration and the subsequent assessment hearing.

The insurer argued the legal bill exceeded the maximum hours allowable under the Legal Aid Act.

The arbitrator allowed the legal expenses for the arbitration period, finding them reasonable given the complexity and duration of the hearing.

However, the arbitrator denied the expenses for the assessment hearing itself, ruling that it is a separate proceeding not covered by the Expenses Schedule.

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

The insurer terminated weekly income benefits at the 156-week mark based on surveillance showing the applicant occasionally selling plants at a market.

At the hearing, the insurer conceded entitlement but disputed the quantum of the weekly benefit and the applicant's claim for a special award.

The arbitrator calculated the applicant's pre-accident income from his self-employed plant business and set the weekly benefit at $501.60.

The arbitrator also found that the insurer unreasonably terminated benefits at the 156-week mark without seeking updated medical information or making sufficient inquiries, and ordered a special award of $2,000.

The applicant sought to withdraw his application for arbitration regarding statutory accident benefits one month before the scheduled hearing, intending to proceed in court instead.

The insurer objected, arguing the withdrawal was an abuse of process and seeking costs under the Insurance Act and Practice Code.

The arbitrator found the applicant had not acted for an improper purpose or to harass the insurer, and therefore the withdrawal was not an abuse of process.

The withdrawal was permitted on the condition that the applicant could not re-apply for arbitration on the same issues.

The applicant's request for expenses of the withdrawal hearing was denied.

The respondent was seriously injured in a stock car racing accident at Mosport International Speedway.

He sought statutory accident benefits under his personal motor vehicle liability policy with the appellant insurer, arguing that the uninsured stock car was an "automobile" under the Insurance Act.

The arbitrator allowed the claim.

On appeal, the Director's Delegate rescinded the arbitrator's decision, holding that a custom-built stock car used exclusively for racing on a closed track is not an "automobile" for the purposes of the Statutory Accident Benefits Schedule.

The appeal was allowed and the claim for accident benefits was denied.

The applicant was injured in a motor vehicle accident while at work and elected to receive workers' compensation benefits.

After the Workers' Compensation Board terminated his benefits, he applied for statutory accident benefits from his motor vehicle insurer.

The insurer denied the claim on the basis that he had already elected and received WCB benefits.

The Arbitrator held that section 76 of the Statutory Accident Benefits Schedule precludes an insured person from receiving accident benefits if they have elected to receive WCB benefits, and they cannot re-elect accident benefits after exhausting their WCB claim.