OFSCDRS 2001

The applicant was injured in three motor vehicle accidents and received statutory accident benefits from the insurer.

The insurer terminated weekly income replacement benefits, arguing the applicant was only entitled to a non-earner benefit.

At a preliminary issue hearing, the insurer argued the applicant had an income continuation benefit plan available to him through his former employer.

The arbitrator found that the applicant did not have collateral benefits available to him because he applied for long-term disability benefits outside the limitation period without any tactical intent to hide information.

Furthermore, the eligibility test under the collateral disability policy was stricter than the test under the Statutory Accident Benefits Schedule.

An application for arbitration for statutory accident benefits was filed in the name of a deceased insured by a law firm retained by a treatment provider, without authorization from the deceased's estate.

The arbitrator held that the application was a nullity because an action cannot be commenced in the name of a deceased person without the involvement of a duly appointed estate representative.

The agency relationship between the deceased and the treatment provider or law firm, if any existed, terminated upon the insured's death.

In a preliminary issue decision regarding statutory accident benefits, the arbitrator determined whether the applicant, a French-speaking person, was entitled to be assessed at a Designated Assessment Centre (DAC) by French-speaking assessors without interpreters.

The arbitrator found that the DAC was located in a designated area under the French Language Services Act and was obliged to provide services in French.

The Minister's Committee, which permitted DACs to use interpreters, bore the onus under section 7 of the Act to justify this limitation but failed to do so.

Consequently, the applicant's refusal to be assessed with an interpreter was reasonable, and he did not fail to make himself available for the DAC assessment.

However, as previously decided, he was not entitled to French-speaking assessors for the insurer's examinations and remained barred from arbitration until he attended those.

During an arbitration hearing for a special award under the Insurance Act, the applicant sought production of the insurer's adjusters' notes.

The insurer produced the notes but redacted certain entries, claiming solicitor-client privilege.

The applicant argued that solicitor-client privilege does not exist in a first-party claim until benefits are terminated, and that any privilege was implicitly waived by the insurer's reliance on its state of mind.

The arbitrator held that solicitor-client privilege can apply to communications with in-house counsel prior to the termination of benefits.

The arbitrator found that most of the redacted entries were protected by solicitor-client privilege and that the insurer had not implicitly waived the privilege merely because the applicant claimed a special award.

However, the arbitrator ordered the production of one entry authored by a claims person and a portion of another entry unrelated to reserves.

The applicant, a Colorado resident, was injured in a motor vehicle accident in New York State while a passenger in a vehicle insured by the respondent under an Ontario policy.

The applicant applied for statutory accident benefits in Ontario.

The insurer argued the applicant did not qualify as an 'insured person' under the Schedule because he was not living and ordinarily present in Ontario.

The arbitrator found that the applicant met the expanded definition of 'insured person' under section 2.2.3(g) of the OPF 1 standard policy, as he had no recourse against any other insurer.

The arbitrator held that the insurer is bound by the terms of its own policy and ordered the insurer to pay statutory accident benefits.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them, relying on an ergonomist's report.

The applicant applied for arbitration, arguing he remained substantially unable to perform the essential tasks of his pre-accident job as a machine operator due to a shoulder injury and a traumatic brain injury.

The arbitrator found the ergonomist's report fundamentally flawed and accepted the evidence of the applicant's experts and an orthopaedic specialist retained by the insurer.

The arbitrator concluded the applicant was entitled to ongoing income replacement benefits, subject to deductions for post-accident earnings, and ordered a 15% special award against the insurer for unreasonably withholding benefits.

The applicant estate sought expenses following a successful arbitration to enforce a settlement reached at mediation prior to the insured's death.

The insurer had refused to pay the settlement funds without a prior release, necessitating the arbitration.

The arbitrator found that the insurer's failure to fulfill its original obligations and its insistence on a prior release made the hearing necessary.

The estate was awarded its reasonable expenses of $3,108.07, with the arbitrator approving the senior counsel's enhanced hourly rate of $150 due to the complexity of the jurisdictional issues raised by the insurer.

The applicant sought statutory accident benefits, including income replacement and medical benefits, following a motor vehicle accident.

The applicant failed to attend the scheduled arbitration hearing despite receiving proper notice.

Consequently, the arbitrator dismissed all of the applicant's claims for lack of evidence.

The insurer abandoned its claims for repayment of benefits, penalties, and expenses.

The applicant applied for arbitration after the insurer terminated his statutory accident benefits following a motor vehicle accident.

The applicant failed to attend the scheduled arbitration hearing and did not notify the Commission.

The arbitrator dismissed the application due to the applicant's failure to provide evidence to prove his entitlement to benefits.

Finding that the applicant's failure to pursue his claims amounted to an abuse of process, the arbitrator ordered the applicant to pay the insurer's legal expenses and disbursements.

The applicant was injured when he tripped on a groove in the pavement of a parking lot after unloading groceries from the trunk of his car.

He applied for 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 vehicle brought the applicant to the location, the direct cause of the injuries was a new and independent source, namely the cracked pavement.

The claim for accident benefits was dismissed.

The applicant brought a motion to enforce a settlement agreement reached during a teleconference regarding his claim for income replacement benefits following a motor vehicle accident.

The insurer argued there was no meeting of the minds, claiming it intended a full and final release of all future benefits, not just a two-year period.

The arbitrator found that the insurer's counsel made a unilateral mistake and failed to correct the applicant's clear written confirmation of the terms.

Applying an objective test, the arbitrator held the insurer was bound by the settlement.

The arbitrator also granted maximum special awards against the insurer for unreasonably resiling from the settlement and for failing to pay previously approved non-earner benefits.

In a dispute over statutory accident benefits, the parties sought preliminary rulings on the production of documents.

The arbitrator ordered the insurer to produce draft reports and clinical notes of IME and DAC assessors, finding that such statutorily mandated assessments are not protected by litigation privilege.

The arbitrator also ordered the insurer to produce its complete accident benefits file, including adjusters' notes and reserve information, up to the date the applicant applied for mediation, applying the dominant purpose test.

The insurer was further ordered to produce all surveillance evidence if it intended to rely on any part of it.

The applicant's requests for the insurer's policy manuals and legal opinions were denied.

Finally, the applicant's Canada Pension Plan file was ordered produced as it was relevant to her medical condition.

The appellant appealed an arbitration decision denying him ongoing income replacement benefits, the cost of a TENS machine, a higher mileage rate, and an increased special award following a motor vehicle accident.

The Director's Delegate upheld the arbitrator's finding that the appellant's ongoing disability was caused by severe pre-existing physical and psychological conditions, and that the accident did not materially contribute to his disability beyond March 1997.

The appeal was dismissed with respect to the income replacement benefits, TENS machine, and special award.

However, the Director's Delegate varied the arbitration order to allow mileage expenses at a rate of 22 cents per kilometre, up from the 13 cents paid by the insurer.

The insurer appealed a preliminary decision holding that the insured's application for mediation was not time-barred.

The insurer had stopped paying income replacement benefits after receiving a report from a designated assessment centre stating the insured was no longer disabled.

The insurer argued the two-year limitation period began when it stopped payments.

The Director's Delegate dismissed the appeal, finding that the insurer must clearly and unequivocally communicate its refusal to pay benefits, including providing information about the dispute resolution procedure, to trigger the limitation period.

The insurer failed to prove it had done so more than two years before the mediation application.

The applicant, who was left with partial quadriplegia following two motor vehicle accidents, sought statutory accident benefits for the purchase and renovation of a new home to accommodate his needs.

The insurers had advanced $135,000 based on the estimated cost of renovating his previous townhouse, arguing they were not responsible for the capital cost of a new home.

The arbitrator found that while the applicant reasonably required extensive home modifications, including an additional bedroom, an accessible bathroom, and an elevator, the insurers were not obligated to fund the purchase price of the freehold home itself.

The arbitrator ordered the insurers to pay $153,410 for renovations and the capital cost of an additional bedroom, plus a project management fee, but dismissed the claim for a special award, finding the insurers had not unreasonably withheld payments.

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

The insurer scheduled three insurer examinations after the pre-hearing, which the applicant refused to attend, arguing the request was late and constituted trial brinkmanship.

The insurer brought a preliminary motion to stay the arbitration hearing until the applicant attended the examinations.

The arbitrator found the insurer's request reasonable, noting a change in the applicant's circumstances and a novel aspect to her claim since the last examinations.

The hearing was adjourned pending the applicant's attendance at the requested examinations.

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

A dispute arose regarding the calculation of his weekly income replacement benefits, as he held two jobs prior to the accident but could only continue one post-accident.

The applicant brought a motion for interim benefits pending the final arbitration.

The arbitrator found that the applicant presented prima facie evidence of his self-employment as a cleaner at the time of the accident and his inability to continue this work due to his injuries.

The arbitrator also accepted the applicant's evidence of financial urgency.

The insurer was ordered to pay interim income replacement benefits based on the lost cleaning income, without deduction for deemed employment income that was no longer available.

The insurer requested that the insured's agent be excluded from representing her on appeal, arguing that he was incompetent and failed to comply with his duties, relying on the arbitrator's negative comments about his conduct at the initial hearing.

The Director's Delegate reviewed the principles for excluding an agent, noting that it is a severe measure meant to protect the proper administration of justice and the represented party's interests.

While expressing concern over the agent's past conduct, the Delegate concluded that excluding him at this preliminary stage was not warranted, but required the agent to file a signed acknowledgment from the insured confirming her informed choice to use an unlicensed agent.

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

The Fund purported to terminate his other disability benefits in May 1997.

The applicant applied for mediation more than two years later.

The Fund argued the application was time-barred under section 281(5) of the Insurance Act.

The arbitrator found that the Fund's notice of refusal was not clear and unequivocal, and that the Fund failed to comply with the mandatory termination requirements of section 64 of the Statutory Accident Benefits Schedule.

Therefore, the limitation period never began to run, and the applicant was not precluded from proceeding to arbitration.

The applicant was injured in a motor vehicle accident and sought payment of $800 for an in-home assessment conducted by a kinesiologist.

The insurer denied the expense, arguing it was not reasonable or necessary and did not meet the criteria of section 24 of the Statutory Accident Benefits Schedule.

The arbitrator found that the applicant failed to prove the assessment was obtained "for the purpose of the Regulation," as there was no evidence connecting the referral to the accident or showing the report was used for rehabilitation or benefit entitlement.

The application for payment was dismissed.