OFSCDRS 1999

The applicant applied for statutory accident benefits following an alleged motor vehicle accident.

The insurer denied the claim, and the applicant commenced arbitration.

However, the applicant subsequently moved without notifying his counsel or the Commission, failed to attend the pre-hearing, and failed to attend the arbitration hearing.

The arbitrator dismissed the application, finding that the applicant's conduct amounted to a constructive withdrawal and an abuse of process.

The applicant was ordered to pay the insurer's $3,000 assessment fee and its expenses of the arbitration.

The Motor Vehicle Accident Claims Fund (MVAC) appealed an arbitration order requiring it to pay various expenses for R.W., who suffered a severe brain injury in a motorcycle accident and resided in a supportive group home.

The Director's Delegate upheld the arbitrator's findings that R.W.'s rent, mandatory program fees, and transportation costs were reasonable and necessary care and rehabilitation expenses under the Statutory Accident Benefits Schedule.

The Delegate reversed the award for personal care items and confectionary due to a lack of medical evidence.

The special award against MVAC for unreasonably refusing to pay the core expenses was upheld.

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

The insurer subsequently terminated benefits and sought repayment, arguing the applicant knew or ought to have known he was driving an uninsured vehicle.

The arbitrator found that the applicant's wife had cancelled the insurance policy prior to the accident and that the applicant was aware of this cancellation.

Consequently, the applicant was disqualified from receiving benefits under section 30(1)(a) of the Statutory Accident Benefits Schedule.

The applicant was ordered to repay $6,357.02 in income replacement benefits pursuant to section 47(1)(b), but was not required to repay other benefits as the insurer failed to prove fraud or misrepresentation under section 47(1)(a).

The insurer appealed an arbitrator's preliminary order dismissing its motion to bar the insured's application for arbitration.

The insurer argued the insured failed to comply with section 33 of the SABS by not providing requested medical records in a timely manner.

The arbitrator had found the insured satisfied her obligations by authorizing the release of the records and requesting them through her counsel, noting she could not compel third parties to produce them.

The Director's Delegate rejected the appeal, finding it did not have obvious merit and that the fairest and most expeditious way to proceed was for the remaining entitlement issues to be heard at the scheduled arbitration.

The applicant was injured in a motorcycle accident and received income replacement benefits of $185 per week.

He claimed entitlement to a higher benefit rate, arguing he had a legitimate contract of employment to start full-time work as a mechanic shortly after the accident, or alternatively, that he was employed on a casual basis in the four weeks preceding the accident.

The arbitrator dismissed both claims, finding that the applicant's pre-existing medical conditions rendered him incapable of full-time work, and that the alleged employment letter was created solely to secure a bank loan.

The arbitrator also found insufficient evidence to prove the applicant was employed in the four weeks prior to the accident.

The applicant was injured in a motor vehicle accident and received weekly income benefits for five years before the insurer terminated them.

The applicant sought ongoing benefits under subsection 12(5) of the Statutory Accident Benefits Schedule, claiming she was continuously prevented from engaging in any suitable employment due to a psychological disability.

The arbitrator found the applicant credible and rejected the insurer's argument, based on video surveillance and one psychiatric opinion, that she was feigning her disability.

The arbitrator concluded the accident significantly contributed to her post-traumatic stress disorder and major depression, rendering her totally disabled.

The arbitrator also fixed the weekly benefit amount at $311.66 based on the insurer's own accountant's report, and dismissed the insurer's claims for repayment and post-accident income deductions.

The applicant was assaulted and his car was stolen in the underground parking garage of his apartment building.

He applied for statutory accident benefits, claiming the incident was an 'accident' under the Schedule.

The arbitrator found that the applicant was approaching his car when he was attacked, but had not yet reached it or begun to use it.

Applying the Amos test, the arbitrator concluded that the vehicle was not instrumental in causing the injuries and the incident did not arise out of the ordinary use or operation of an automobile.

The application for accident benefits was dismissed.

The applicant was injured in two motor vehicle accidents and received weekly income benefits.

The insurer reduced the benefits after the applicant began receiving CPP disability benefits, and later refused to restore the higher rate following court decisions holding that CPP benefits were not deductible.

The insurer argued the applicant was barred from arbitrating the issue by the two-year limitation period.

The arbitrator found that the insurer's notice of benefit reduction did not constitute a proper refusal to pay, as the applicant had already agreed to a reduction and proposed a repayment method.

Therefore, the limitation period had not commenced, and the applicant was not time-barred.

The arbitrator declined to order a special award, finding the insurer's position was based on an honestly-held error rather than bad faith, but awarded interest on overdue amounts and expenses to the applicant.

The insurer appealed an arbitration decision finding that the insured, a high school student injured in a motor vehicle accident, continued to qualify for Education Disability Benefits (EDBs) and was entitled to an offer for Loss of Earning Capacity Benefits (LECBs).

The Director's Delegate upheld the arbitrator's finding that the insured was substantially unable to continue his education, noting that the test involves an individualized inquiry and that mere attendance at school is not sufficient.

However, the Director's Delegate allowed the appeal regarding LECBs, concluding that the insurer's obligation to make an LECB offer is not triggered if it stops paying weekly benefits before the 104-week mark, pending the resolution of the dispute over entitlement.

The appellant was injured in a snowmobile accident and received caregiver benefits.

The insurer terminated benefits before the 104-week mark, and an arbitrator found the appellant only met the partial-inability test, not the complete-inability test required after 104 weeks.

The appellant argued she could still elect loss of earning capacity benefits (LECBs) because she continued to 'qualify' for caregiver benefits under the partial-inability test, even if they were not payable.

The Director's Delegate dismissed the appeal, holding that to 'continue to qualify' for caregiver benefits at the 104-week mark for the purpose of electing LECBs, the insured must meet either the substantial-inability or complete-inability test.

The insurer's cross-appeal on arbitration expenses was allowed in part.

The insurer appealed a preliminary arbitration decision finding that the insured's claim for caregiver benefits was not time-barred.

The central issue was whether the two-year limitation period for applying for mediation under the Insurance Act and the SABS-1994 commenced upon the insurer's initial notice of intention to terminate benefits or upon the release of the Designated Assessment Centre (DAC) report.

The Director's Delegate held that when an insured requests a DAC assessment, the insurer's 'refusal to pay' does not occur until the DAC report is released and the insurer is authorized to stop paying benefits.

Consequently, the limitation period had not expired, and the appeal was dismissed.

The applicant sought statutory accident benefits following a series of altercations and collisions with another driver that began in a car wash.

The arbitrator found that while the initial collisions were 'accidents' under the Schedule, the subsequent physical assault and the applicant's intentional ramming of the other vehicle were not.

The application was dismissed because the applicant, who was repeatedly disruptive and abusive during the hearing, failed to provide credible evidence of disability, causation, or income loss.

The arbitrator concluded the hearing early due to the applicant's contemptuous and abusive behaviour, which constituted an abuse of process.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits for case management services.

After mediation failed, the applicant commenced a court action claiming medical and rehabilitation benefits, and subsequently applied for arbitration at the Financial Services Commission of Ontario for the same benefits.

The insurer argued the arbitration was an abuse of process due to the pre-existing court action.

The arbitrator dismissed the arbitration, finding the court action was commenced first and was more comprehensive in scope.

The arbitrator also found the arbitration was frivolous, vexatious, and an abuse of process from the outset, ordering the applicant to pay the insurer's $3,000 assessment and $510 in arbitration expenses.

The applicant sought statutory accident benefits following a series of incidents that began with a minor collision in a car wash, escalated to a physical assault by the other driver, and culminated in the applicant intentionally ramming the other driver's vehicle under a tractor-trailer.

The arbitrator found that while the initial collisions were 'accidents' under the Schedule, the assault and the intentional ramming were not.

The application for weekly income benefits was dismissed because the applicant, who repeatedly disrupted the hearing and abused the process, failed to provide credible evidence of disability, causation, or income.

The hearing was ultimately concluded early due to the applicant's abusive and contemptuous behaviour.

Following an arbitration regarding statutory accident benefits where the applicant was awarded a small portion of the claimed death benefits, both parties sought their expenses.

The arbitrator considered the criteria under the Insurance Act and Regulation 664, including the applicant's lack of success, the conduct of both parties, and the complexity of the issues.

The arbitrator concluded that neither party was entitled to their expenses, ordering each party to bear their own costs.

The applicant was injured in a motor vehicle accident and sought ongoing income replacement benefits.

Less than three weeks before the arbitration hearing, the insurer requested that the applicant attend an insurer's medical examination (IE) with an orthopaedic surgeon in Toronto.

The applicant, who lived in Port Dover, refused to attend on short notice.

The arbitrator held that the insurer's request was unreasonable, finding that the insurer had delayed requesting the IE for over five years without adequate justification.

The arbitrator concluded that allowing the late request would amount to trial brinkmanship and unfairly prejudice the applicant by likely necessitating an adjournment of the hearing.

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

The insurer terminated the benefits, and the applicant applied for arbitration.

The insurer raised a preliminary issue that the application was filed beyond the two-year limitation period under section 281(5) of the Insurance Act and section 72(1) of the Statutory Accident Benefits Schedule.

The arbitrator found that the insurer failed to provide the required notice under section 64 of the Schedule before terminating benefits, and that its initial letter did not constitute a clear and unequivocal refusal.

Therefore, the limitation period had not expired, and the applicant was not precluded from proceeding to arbitration.

Following an arbitration decision regarding statutory accident benefits where the applicant had mixed success, the parties sought a determination on expenses.

The insurer argued the applicant should only receive half his expenses because he was unsuccessful on the income replacement benefit claim.

The arbitrator awarded full expenses to the applicant, finding that the insurer's procedurally defective adjustment of the medical and rehabilitation claims justified a full award despite the applicant's lack of complete success.

The applicant, who suffered paraplegia in a motor vehicle accident, applied for statutory accident benefits.

The arbitrator found that the applicant was entitled to weekly income benefits post-156 weeks because her injuries continuously prevented her from engaging in substantially all of her pre-accident activities.

The arbitrator also awarded care benefits of $250 per week, finding that her husband reasonably lost this gross income in caring for her.

Claims for a new wheelchair, shower modifications, and counselling were granted as reasonable and necessary rehabilitation expenses, while claims for a new home, a modified van, and a power scooter were denied.

The applicant's request for a special award was dismissed as the insurer's conduct was not found to be unreasonable.

The applicant was injured in a motor vehicle accident and received income replacement benefits before returning to her pre-accident employment.

She claimed entitlement to a Loss of Earning Capacity (LEC) offer, arguing she was physically unable to take better post-accident employment opportunities due to the accident.

The arbitrator held that under the Statutory Accident Benefits Schedule, continuing entitlement to income replacement benefits at the two-year mark is based on the employment the applicant was engaged in at the time of the accident.

Since she had returned to her pre-accident employment, she was not entitled to an LEC offer based on prospective employment opportunities.