OFSCDRS 2002

The applicants were involved in a motor vehicle accident which resulted in the death of their unborn child.

They applied for death benefits under the Statutory Accident Benefits Schedule.

The insurer denied the claim on the basis that an unborn child does not qualify as a dependant.

The arbitrator held that the law does not recognize an unborn fetus as a person, and therefore the unborn child was not an 'insured person' under the Schedule.

The application for death benefits was dismissed.

The applicants were injured in a motor vehicle accident in California and sought statutory accident benefits from the Motor Vehicle Accident Claims Fund.

The Fund brought a motion arguing that a FSCO arbitrator lacked jurisdiction to interpret section 6 of the Motor Vehicle Accident Claims Act and section 268 of the Insurance Act, and that the arbitration duplicated a Superior Court action.

The arbitrator dismissed the motion, finding that section 20(2) of the Insurance Act grants arbitrators exclusive jurisdiction to determine all questions of fact or law in proceedings before them, including interpreting the relevant statutes.

The arbitrator also found that the arbitration for accident benefits did not duplicate the tort action in the Superior Court.

The appellant insurer sought to compel the respondent insured to produce documents from a related tort action in a statutory accident benefits arbitration.

The arbitrator dismissed the request, relying on the principles underlying the deemed undertaking rule.

On appeal, the Director's Delegate upheld the arbitrator's decision, finding that compelling production of defence medicals and discovery transcripts from the tort action would distort the arbitration process and prejudice the insured, particularly given the insurer's ability to conduct its own medical examinations under the Statutory Accident Benefits Schedule.

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

The insurer requested that the applicant attend neurological, neuro-psychological, and occupational therapy examinations to reassess his attendant care needs, which the applicant refused to attend.

The insurer argued that the applicant was barred from proceeding to arbitration under section 50(b) of the Statutory Accident Benefits Schedule for failing to attend the examinations required under section 42.

The arbitrator found that the insurer's notice of examination was materially defective because it failed to specify the benefits to which the examinations related.

Furthermore, the requested examinations were not reasonably necessary, as the applicant had recently undergone numerous similar assessments, including a Designated Assessment Centre (DAC) evaluation, and the insurer was merely seeking to challenge the DAC's findings rather than assessing a new claim or ongoing entitlement.

The arbitrator concluded that the applicant was not precluded from proceeding to arbitration.

The applicant applied for statutory accident benefits, claiming she was injured as a passenger in a motor vehicle accident.

The insurer denied the claim on the basis that the applicant was not in the vehicle at the time of the collision.

In a preliminary issue hearing, the arbitrator assessed the credibility of the applicant, her sister, and the driver.

Despite some inconsistencies regarding the time of the accident and weekend plans, the arbitrator found on a balance of probabilities that the applicant was a passenger in the vehicle and suffered an impairment, thereby meeting the definition of an accident.

The applicant sought accident benefits following an alleged motor vehicle accident on December 31, 2000.

The insurer denied the claim, arguing the accident did not occur.

At the arbitration hearing, the insurer presented expert evidence from an accident investigator who testified that the physical damage to the vehicles was inconsistent with the reported collision and matched pre-existing damage from 1997.

The arbitrator accepted the expert's unrebutted evidence, found that the applicant was not involved in the alleged accident, and dismissed the claim for accident benefits.

The applicant, a taxi driver, was injured in a motor vehicle accident and applied for statutory accident benefits, including income replacement, medical, and housekeeping benefits.

The insurer denied the benefits and the matter proceeded to arbitration.

The applicant failed to attend the pre-hearing and the hearing proceeded in writing.

The arbitrator found that while the applicant was substantially disabled for a period, he was not entitled to income replacement benefits because he failed to provide the insurer with reasonable information to calculate the quantum, such as tax returns and taxi run sheets.

The claims for medical and housekeeping benefits were also dismissed for lack of evidence.

The applicant was ordered to pay the insurer's arbitration expenses.

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

The insurer paid $180 per week, disputing the applicant's pre-accident income as an exotic dancer because she was paid in cash and lacked formal employment records.

The arbitrator found the applicant's testimony regarding her income and tips to be credible and corroborated by a co-worker.

The arbitrator concluded that the applicant earned sufficient pre-accident income to qualify for the maximum income replacement benefit of $400 per week and awarded her expenses.

The Applicant sought to withdraw her claim for income replacement benefits from arbitration to pursue it in court, where she could seek relief from forfeiture for failing to attend an insurer's medical examination.

The arbitrator refused to allow the Applicant to split her case between two forums due to the risk of inconsistent results and increased costs.

However, the arbitrator permitted the Applicant to withdraw her entire application for arbitration without terms or conditions, finding that both parties contributed to the confusion regarding the issues in dispute and that the arbitration was not frivolous or vexatious.

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

The insurer denied the benefits and required the applicant to attend an insurer's examination with a physiatrist.

The applicant failed to attend two scheduled appointments.

The insurer raised a preliminary issue that the applicant was precluded from proceeding to arbitration under section 50(b) of the Statutory Accident Benefits Schedule.

The arbitrator found that the insurer provided adequate notice, the applicant did not have a reasonable excuse for failing to attend, and the examination was reasonably necessary.

The applicant was precluded from proceeding to arbitration until he made himself reasonably available for the examination.

The appellant was injured in a motor vehicle accident while working and initially claimed workers' compensation benefits.

He later sought accident benefits from his automobile insurer, which delayed processing his claim.

At arbitration, he was awarded outstanding benefits and a $65,000 special award for the insurer's unreasonable delay, but the arbitrator ordered interest only from the dates formal applications or re-elections were made.

On appeal, the appellant argued interest should run from his initial contact with the insurer due to its failure to provide forms and information.

The Director of Arbitrations dismissed the appeal, finding no error in the arbitrator's determination of when the benefits became overdue under the Statutory Accident Benefits Schedule, noting the special award already penalized the insurer for its delays.

The appellant insurer appealed an arbitration order finding that the respondent was not precluded from receiving statutory accident benefits.

The insurer argued that the respondent's election to bring a tort action instead of claiming workers' compensation benefits was made primarily for the purpose of claiming accident benefits, as she had run a red light and her tort action was unlikely to succeed.

The Director of Arbitrations upheld the arbitrator's decision, finding that the arbitrator correctly applied the test under section 59(2) of the SABS-1996.

The arbitrator's factual finding that the respondent honestly believed she had a green light at the time she commenced her action, and thus made her election in good faith, was supported by the evidence and contained no error of law.

The appeal was dismissed.

In a pre-hearing dispute over statutory accident benefits, the applicant sought production of investigator's reports regarding an alleged offer of employment.

The insurer claimed litigation privilege over the reports but reserved the right to call the investigator as a witness.

The arbitrator applied the dominant purpose test and the Dispute Resolution Practice Code, finding that the reports were likely requisitioned to adjust the file rather than for litigation.

Given the insurer's reservation of the right to call the investigator, the arbitrator ordered the production of the reports to ensure full and fair disclosure.

The Ministry of Finance, acting as an intervenor, brought a motion to introduce new evidence in the form of an affidavit from a former Director of Arbitrations.

The underlying appeal involved a challenge by the insurer to the dispute resolution system based on alleged institutional bias.

The insurer and another intervenor objected to portions of the affidavit referring to historical reports and special award statistics.

The Director of Arbitrations allowed the motion, finding the historical context relevant to the institutional bias issue and noting that the insurer had the opportunity to cross-examine the affiant.

The affidavit was admitted in its entirety.