OFSCDRS 2001

The applicant was injured in a motor vehicle accident and claimed statutory accident benefits, including a loss of earning capacity (LEC) benefit, housekeeping expenses, and shop assistant expenses.

The arbitrator determined the applicant's pre-accident earning capacity based on her reported income and unreported tips, and found she had no residual earning capacity due to a mild to moderate brain injury.

The claim for a shop assistant was dismissed as an unreasonable rehabilitation expense, while the claim for housekeeping expenses was allowed.

The applicant's request for a special award was dismissed.

The appellant appealed an arbitrator's decision denying him further weekly benefits under the SABS-1994.

The appellant received "other disability benefits" for a partial inability to carry on a normal life, but benefits were interrupted for 28 weeks when his condition temporarily improved.

The insurer terminated benefits on the second anniversary of the accident because the appellant did not meet the "complete inability" test.

The Director's Delegate upheld the arbitrator's ruling that the 104-week transition period refers to calendar weeks, not weeks of benefits paid.

The Delegate also held that the appellant could not qualify for ongoing benefits by meeting the complete inability test at a later date, as the disability must continuously prevent the person from engaging in their ordinary activities from the 104-week mark.

The appellant was injured in a motor vehicle accident and received income replacement benefits for 156 weeks before the insurer terminated them.

Three years later, the appellant applied for further benefits, arguing he now met the post-156-week test.

The insurer denied the claim as statute-barred and for failing to meet the continuous disability requirement.

The Director's Delegate affirmed the arbitrator's decision, holding that the claim was barred by the two-year limitation period under the Insurance Act and the SABS, as the post-156-week benefits do not constitute a separate claim.

Furthermore, the appellant failed to establish that he was continuously disabled from the 156-week mark.

The insurer brought a motion seeking an order to compel a third-party psychologist to produce his rough clinical notes and other materials relied upon in his psychological assessment of the applicant.

The applicant did not oppose the motion and provided authorization for the release.

The third party did not attend the hearing.

The arbitrator found the materials relevant and ordered the third party to release all records pertaining to the applicant to the applicant's counsel.

The insurer brought a motion in an accident benefits arbitration seeking production of the applicant's discovery transcript and defence medical examination reports from a related tort action, as well as an order requiring the applicant to attend a psychiatric examination.

The arbitrator dismissed the motion, holding that the implied undertaking rule protected the tort documents from production in the arbitration, as the insurer failed to show that the interests of justice outweighed the applicant's privacy interests.

The arbitrator also found that a psychiatric examination was not reasonably required, given the late stage of the proceedings and the applicant's willingness to attend a psychological examination.

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

After the insurer terminated benefits, an application for arbitration was filed on his behalf.

However, the applicant had died prior to the application being issued, and an estate trustee had not yet been appointed.

The insurer argued the application was a nullity.

The arbitrator held that the doctrine of relation back applied to contractual claims for insurance benefits, allowing the subsequently appointed estate trustee to validate the application.

Alternatively, Rule 9.03 of the Rules of Civil Procedure applied to save the proceeding.

The preliminary issue was resolved in favour of the estate, allowing the arbitration to proceed.

Following an arbitration hearing where the applicant was largely successful in her claims for statutory accident benefits, the parties disputed her entitlement to expenses.

The insurer argued that the applicant's pursuit of an indexation issue and an evidentiary objection prolonged the hearing.

The arbitrator found that these matters did not unduly prolong the hearing and, given the applicant's relative success, ordered the insurer to pay the applicant's expenses of the arbitration.

The appellant, who was injured in a motor vehicle accident, appealed an arbitrator's decision denying her claim for the cost of a functional abilities evaluation.

Prior to the appeal hearing, the appellant brought a motion requesting the appointment of an arbitrator under the Arbitration Act, 1991 to decide her claim that the Financial Services Commission of Ontario is tainted by institutional bias.

The Director of Arbitrations denied the motion, finding no authority under the Insurance Act to refer an appeal to an outside arbitrator without the consent of the parties.

The Director also declined to stay the proceedings pending the outcome of a similar institutional bias challenge in another case.

An individual applied for intervenor status in an appeal concerning statutory accident benefits and allegations of institutional bias.

The Director of Arbitrations denied the application, finding that the applicant did not represent the interests of any recognized group and his participation would likely complicate the proceedings by raising substantially different issues and arguments.

The existing parties and intervenors were deemed sufficient to address the issues.

The insurer brought a motion on preliminary issues regarding the format of a pre-hearing discussion and the applicant's failure to attend insurer examinations.

The self-represented applicant requested a teleconference for convenience, while the insurer insisted on an in-person meeting to better assess credibility and facilitate settlement.

The arbitrator ordered the pre-hearing to be held face-to-face, noting that in-person discussions are generally more fruitful for settlement and the applicant lived a reasonable distance from the Commission.

The issue regarding the insurer examinations was withdrawn after the applicant clarified he was only claiming benefits up to a specific date.

The applicant sought an expense hearing following the settlement of her statutory accident benefits claim.

The parties agreed on the hours spent by the applicant's counsel and law clerk, leaving only the hourly rates in dispute.

The arbitrator awarded an enhanced hourly rate of $110 for the applicant's counsel, considering her experience and access to justice principles, rather than the maximum $150 requested.

The law clerk's rate was set at the Legal Aid rate of $23 per hour, as there was no evidence the clerk performed duties beyond standard assistance.

The insurer was ordered to pay $5,940 for counsel fees and $1,288 for law clerk fees, plus GST.

The applicant brought a motion for interim expenses to fund medical reports for an upcoming arbitration regarding statutory accident benefits.

The insurer opposed the motion and sought an order requiring the applicant to attend an insurer's examination with a physiatrist.

The arbitrator dismissed the claim for interim expenses, finding the applicant failed to provide evidence of an inability to pay, particularly given a recent $40,000 tort settlement.

The arbitrator granted the insurer's request for the examination, noting the applicant's objections were unfounded and based on a misunderstanding of a previous ruling.

The applicant was injured in a motor vehicle accident and received income replacement benefits, which the insurer later terminated.

The applicant applied for arbitration.

Prior to the hearing, the insurer reinstated the benefits and did not contest entitlement at the hearing.

The applicant sought an order establishing her entitlement to benefits to gain procedural protection under section 287 of the Insurance Act.

The arbitrator held he had jurisdiction to issue the order and granted it.

The arbitrator also held that the applicant's accrued vacation pay must be included in the calculation of her income replacement benefit, distinguishing previous case law based on the applicant's history of taking vacation pay as contributions to a vacation account rather than as paid time off.

The applicant was struck by a vehicle and sustained a fractured tibia.

She sought statutory accident benefits for chiropractic and active rehabilitation therapy.

The insurer disputed the reasonableness of the treatment and the fees charged by the clinics.

The arbitrator found that the treatment was reasonable and necessary to assist in the applicant's recovery, but determined that the frequency and duration of the treatments, as well as the fees charged by the clinics, were excessive.

The arbitrator reduced the compensable sessions and the hourly rates, awarding $1,080.50 for chiropractic expenses and $635 for rehabilitation expenses, plus interest.

The Applicant sought to withdraw her application for arbitration mid-hearing after an unfavourable evidentiary ruling, intending to pursue the matter in court.

The Insurer opposed the withdrawal.

The Arbitrator denied the request, finding that permitting a withdrawal after three days of hearing and testimony from two witnesses would be unfair to the Insurer, detrimental to the arbitration process, and amount to forum shopping.

The hearing was ordered to continue, and the Insurer was awarded $350 in costs for the withdrawal request.

The appellant's agent requested an adjournment of the appeal proceedings to await the outcome of an application for intervener status in a separate case involving allegations of institutional bias at FSCO.

The Director's Delegate granted the adjournment on strict conditions, including that the appellant properly file the intervention application, notify the Attorneys General of a constitutional challenge, and pay $500 in expenses thrown away to the respondent insurer due to the late notice of the adjournment request.

The applicant, a self-employed electrician, sought weekly income replacement benefits following a motor vehicle accident in October 1994.

The arbitrator dismissed the application, finding that the applicant failed to provide sufficient medical or documentary evidence to prove he suffered a substantial inability to perform the essential tasks of his employment.

Furthermore, the applicant failed to provide adequate financial documentation to substantiate his claim for loss of income and the costs of replacement workers.

The issues of medical report costs and arbitration expenses were deferred.

In an arbitration for statutory accident benefits, the parties disputed the production of certain documents.

The insurer sought production of insurer's medical examinations from the applicant's two prior motor vehicle accidents to address causation.

The applicant objected, citing the implied undertaking rule.

The arbitrator held that under section 22 of the Insurance Act, arbitrators have the same powers as a court to grant relief from the implied undertaking rule under Rule 30.1.01(8).

Finding that the documents were relevant to causation and that the interests of justice outweighed any prejudice to the applicant, the arbitrator ordered their production.

The arbitrator also ordered the insurer to produce certain adjuster correspondence created prior to the mediation application, finding no litigation privilege attached.

The applicant was injured in a motor vehicle accident and sought an order for ongoing income replacement benefits (IRBs) after the insurer unilaterally reinstated them prior to an arbitration hearing.

The applicant argued that an order was necessary to protect her benefits under section 287 of the Insurance Act.

The arbitrator held that an order for ongoing IRBs cannot be imposed absent a hearing on the merits or the consent of the parties, and dismissed the request.

The applicant was injured in a 1997 motor vehicle accident and sought statutory accident benefits, including non-earner, medical, attendant care, and housekeeping benefits.

The insurer denied the claims, arguing that the applicant's impairments were entirely attributable to a long history of pre-existing conditions, including a severe 1979 workplace head injury and subsequent accidents.

The arbitrator found that the 1997 accident did not significantly or materially contribute to the applicant's disability, as he was already totally disabled prior to the accident.

The claims for benefits, interest, and a special award were dismissed.