OFSCDRS 2004

Following an arbitration decision awarding the applicant ongoing income replacement benefits, the parties disputed the applicant's entitlement to interest on the overdue benefits and the expenses of the proceeding.

The arbitrator held that the applicant was entitled to interest on the overdue benefits, distinguishing the case law regarding medical and rehabilitation benefits.

The arbitrator also awarded the applicant her arbitration expenses, including legal fees and disbursements, based on her success in the proceeding and the insurer's conduct.

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

Shortly before the arbitration hearing, the insurer unilaterally reinstated the benefits but at a lower rate for the income replacement benefits (IRBs) and refused to consent to an Order for ongoing benefits.

The arbitrator held a hearing on the merits and found the applicant entitled to ongoing IRBs and housekeeping benefits.

The arbitrator ordered the IRBs to be paid at the original rate of $400 per week, as the insurer had failed to mediate the issue of quantum.

A special award of $5,000 was also granted due to the insurer's delay and failure to properly investigate the claim.

The insurer brought a motion for an order directing the applicant's employer, GGS Plastic Engineering Inc., to produce a copy of the applicant's employment file.

The applicant had previously provided written authorization for the release of the file, but the employer failed to respond.

The arbitrator ordered the employer to produce the file upon payment of reasonable copying expenses by the insurer.

The insurer's request for expenses against the applicant and the employer was dismissed.

The applicant applied for statutory accident benefits following a motor vehicle accident and subsequently applied for arbitration.

After failing to attend a pre-hearing and failing to respond to his representative or the Commission, the representative was granted leave to withdraw.

The insurer moved to dismiss the arbitration.

The arbitrator found that the applicant had abandoned the proceeding without notifying the insurer or the Commission, causing unnecessary expense.

The arbitration was dismissed as frivolous and vexatious pursuant to Rule 68.1 of the Dispute Resolution Practice Code.

The applicant was struck by an uninsured vehicle while walking across a street.

She applied for statutory accident benefits from Wawanesa, which insured the driver of the vehicle on another policy.

Wawanesa returned the application, claiming it was not an insurer because the driver had cancelled her liability coverage days before the accident.

The arbitrator held that Wawanesa, having initially advised the applicant's counsel that the driver was insured, created a sufficient nexus to be considered an insurer.

As the first insurer to receive the application, Wawanesa was required under O. Reg. 283/95 to respond to the application and pay benefits pending any priority dispute.

The applicant was injured in a motor vehicle accident and received statutory accident benefits until the insurer terminated her weekly income replacement benefits.

The insurer relied on a Disability DAC assessment concluding she could perform alternative employment.

The arbitrator found that while the applicant was physically capable of performing the tested jobs, she suffered from a chronic pain condition and psychological impairments caused by the accident.

Relying on earlier DAC reports and psychological assessments, the arbitrator concluded that these psychological limitations rendered her completely unable to engage in any employment for which she was reasonably suited by education, training, or experience.

The applicant, injured in a motor vehicle accident, sought statutory accident benefits and brought a motion for the production of the insurer's complete file.

The insurer claimed litigation and solicitor-client privilege over portions of the file but failed to provide supporting evidence.

The arbitrator ordered the production of documents created before May 1, 2000, finding no evidence that litigation was contemplated before the first application for arbitration.

Documents created after that date and those claiming solicitor-client privilege were ordered to be provided to the arbitrator in a sealed envelope for review.

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

The insurer brought a motion arguing that the applicant was precluded from proceeding to arbitration by res judicata or issue estoppel due to a previous arbitration and appeal proceeding.

The arbitrator held that the Supreme Court of Canada's decision in Smith v. Co-operators substantially changed the law regarding the termination of accident benefits, creating a 'new law' exception to res judicata.

The arbitrator also found that the applicant was not required to proceed by way of an application for variation or revocation.

The insurer's motion was dismissed, allowing the substantive claim to proceed to arbitration.

The insurer sought its expenses following a successful arbitration regarding statutory accident benefits.

The insurer claimed $5,486.60 in legal fees and disbursements, calculated at the Legal Aid rate.

The applicants did not dispute the hours or disbursements but argued the arbitrator had jurisdiction to reduce the amount based on general fairness and their impecuniosity.

The arbitrator found no jurisdiction in the Expense Regulation to reduce the costs on those grounds and found the claimed amount reasonable.

Each applicant was ordered to pay half of the insurer's expenses, amounting to $2,743.30 each.

The applicant claimed statutory accident benefits following an alleged motor vehicle accident.

Neither the applicant nor her representative attended the scheduled arbitration hearing.

The arbitrator proceeded in their absence and dismissed the applicant's claims for income replacement benefits, interest, and a special award due to a lack of evidence.

The insurer was awarded its expenses of the arbitration.

However, the insurer's claim for an award in respect of its assessment fee under the repealed section 282(11.2) of the Insurance Act was dismissed, as the arbitrator found the new legislative provision to be procedural and applicable retroactively.

Following a decision that the applicants were not injured in a motor vehicle accident and were precluded from proceeding to arbitration, the insurer sought its arbitration expenses under subsection 282(11) of the Insurance Act.

The arbitrator found that the applicants were unsuccessful and that their oral evidence was implausible and unreliable, leading to needless time and resources being expended.

The arbitrator awarded the insurer a fixed portion of its expenses, ordering the applicants to pay a total of $800.

The parties sought a determination on entitlement to expenses following a variation motion and cross-motion regarding interim income replacement benefits.

The arbitrator applied the criteria under O. Reg. 275/03, finding that while both parties had some success, the applicant enjoyed a greater degree of success by maintaining his ongoing entitlement to income replacement benefits.

The arbitrator awarded the applicant his expenses of the proceeding, leaving the quantum to be assessed if the parties could not agree.

The estate of the deceased insured appealed an arbitrator's decision denying ongoing caregiver benefits.

The estate argued that the deceased's death constituted an 'impairment' under the Statutory Accident Benefits Schedule, entitling the estate to ongoing caregiver benefits for expenses incurred after her death.

The Director's Delegate dismissed the appeal, holding that caregiver benefits, like income replacement and medical benefits, are payable to the insured person and terminate upon the insured person's death.

The applicant sought payment of $763.41 for an in-home assessment conducted following a motor vehicle accident.

The insurer refused to pay because the assessment was conducted before the applicant requested or obtained the insurer's approval, contrary to section 24(1.1) of the Statutory Accident Benefits Schedule.

The arbitrator dismissed the application, finding that the clear language of section 24(1.1) provides a complete defence for the insurer when an expense is incurred prior to obtaining approval.

The applicant applied for statutory accident benefits following a motor vehicle accident.

After mediation failed, the applicant applied for arbitration.

The applicant subsequently lost contact with his counsel, failed to comply with production orders, and failed to attend the scheduled arbitration hearing.

The arbitrator granted the applicant's counsel's request to be removed from the record.

Finding that the applicant had abandoned his application, the arbitrator dismissed the application and ordered the applicant to pay the insurer's expenses fixed at $3,415.72.

The applicant, who was rendered a paraplegic in a 1994 motor vehicle accident, sought to arbitrate his entitlement to attendant care benefits.

The insurer argued that a 1996 settlement agreement precluded arbitration until the applicant moved into permanent housing accommodation and underwent a further Designated Assessment Centre (DAC) assessment.

The arbitrator found that the applicant's fluctuating living arrangements, which included living in a van and a recreational vehicle while pursuing a competitive sailing career, did not constitute permanent housing accommodation.

The arbitrator held that the applicant was bound by the procedural terms of the settlement and was precluded from proceeding to arbitration until he complied with the agreed-upon assessment process.

The respondent cyclist was injured when struck by a beer bottle thrown by the driver of a passing pickup truck.

The Arbitrator found the incident was an 'accident' under the Statutory Accident Benefits Schedule, relying on an engineering report that the truck's speed contributed to the bottle's impact.

On appeal, the Director's Delegate revoked the decision, holding that the incident was an assault, not an accident.

The use or operation of the truck was not the direct cause of the impairment, but merely provided a platform and means of escape for the assailant.

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

The applicant applied for arbitration, claiming a complete inability to engage in any employment due to intractable chronic pain resulting from the accident.

The arbitrator found the applicant and his expert witnesses credible, noting that the applicant had exhausted conventional medical treatments and required an intrathecal pain pump.

The arbitrator rejected the insurer's arguments that the applicant was merely 'de-conditioned' or drug-seeking, finding that the insurer had stereotyped the applicant.

The arbitrator concluded that the applicant suffered a complete inability to engage in any suitable employment and ordered the insurer to pay ongoing income replacement benefits and interest.

The insurer brought a motion to dismiss the applicant's claim for statutory accident benefits after the applicant failed to appear at the scheduled hearing.

The arbitrator found that because a preliminary issue hearing regarding jurisdiction had been previously adjourned and not rescheduled, it was reasonable to infer the unrepresented applicant believed the main hearing would not proceed.

The motion to dismiss was denied, and the preliminary issue hearing was rescheduled.

The Applicants were injured in a motor vehicle accident and applied for statutory accident benefits.

The insurer denied several claims.

The insurer brought a preliminary issue motion arguing that the FSCO Arbitration Unit lacked jurisdiction because the Applicants applied for mediation before the insurer had denied the claims, in breach of Rule 12.1 of the Dispute Resolution Practice Code.

The Arbitrator dismissed the motion, finding that while the Applicants breached the procedural rule, the statutory preconditions under section 50 of the Schedule and section 281(2) of the Insurance Act were met by the time the mediation actually occurred.

The Applicants were permitted to proceed to arbitration.