OFSCDRS 2004

The applicant claimed statutory accident benefits after slipping and falling while attempting to transfer between two TTC buses.

The insurer denied the claim, arguing the incident did not constitute an 'accident' under section 2 of the Statutory Accident Benefits Schedule because the injuries were not directly caused by the use or operation of an automobile.

In a preliminary issue hearing, the arbitrator found the applicant to be a credible witness and accepted her evidence that she fell while actively attempting to board the second bus.

Applying the factors of time, proximity, activity, and risk, the arbitrator concluded that the injury occurred as part of a direct transfer between buses, which forms part of the normal use of a bus system.

The arbitrator held that the applicant suffered an impairment arising from an accident and could proceed to a hearing on the substantive issues.

The appellant, a part-time supply teacher, was injured in a motor vehicle accident and claimed loss of earning capacity benefits.

The parties disagreed on how to convert her part-time income to full-time income under s. 86 of the SABS-1994, given her seasonal work pattern.

The Arbitrator found that the conversion should be based on the 194-day school year, resulting in a lower pre-accident earning capacity.

On appeal, the Director's Delegate held that the Arbitrator erred in law by disregarding the strict formula in s. 86, which mandates a 52-week year calculation.

The appeal was allowed, and the insurer was ordered to calculate the pre-accident earning capacity based on the higher gross annual income.

The applicant, a minor at the time of the motor vehicle accident, claimed statutory accident benefits for catastrophic impairment.

During the arbitration, she was assessed and declared mentally incapable of managing property under the Substitute Decisions Act, 1992.

The arbitrator ruled that the proceeding could not continue without a properly appointed guardian of property.

The arbitration was stayed until a guardian of property is appointed, and the applicant's father was ordered to advise the Commission of his chosen legal representative and his intentions regarding the appointment of a guardian.

The applicant, who was injured in a motor vehicle accident, sought production of the insurer's entire accident benefits file, including adjusters' notes, internal memoranda, and solicitor-client communications.

The insurer claimed litigation and solicitor-client privilege.

The arbitrator ordered production of the file up to the date the issues were referred to mediation, finding that the insurer failed to establish that the dominant purpose of the documents created before that date was for litigation or that legal advice was sought.

The insurer's cross-motion for a medical assessment under section 42 of the Schedule was dismissed, as the arbitrator found it was sought primarily to bolster the insurer's case at the upcoming arbitration rather than to determine entitlement to a benefit.

The insurer sought an assessment of expenses following a previous arbitration decision that dismissed the insured's claims for statutory accident benefits and awarded the insurer its expenses.

The insured did not participate in the expense hearing despite receiving notice.

The arbitrator assessed the insurer's legal fees, disbursements, and witness fees.

The arbitrator allowed legal fees at the Legal Aid rate and disbursements, but denied the insurer's claim for witness fees related to an expert whose diagnosis of malingering was rejected in the main proceeding.

The insured was ordered to pay the insurer $8,605.44 for hearing expenses.

The appellant was shot and stabbed during a car-jacking while sitting in his parked vehicle.

He applied for statutory accident benefits, which were denied by the arbitrator on the basis that the incident did not meet the definition of an 'accident' under the SABS-1996.

On appeal, the Director of Arbitrations upheld the decision, finding that while the automobile provided the location and motivation for the assault, the injuries were directly caused by the intervening acts of the assailants (the gunshot and stabbing), not by the use or operation of the automobile.

The respondent broke her elbow when she fell while running to check on friends whose vehicle had been forced off the road.

The insurer appealed an arbitration decision finding that this constituted an 'accident' under the Statutory Accident Benefits Schedule.

The Director of Arbitrations dismissed the appeal, upholding the arbitrator's finding that the use or operation of the automobiles was the direct cause of the respondent leaving her vehicle and falling, which was a normal part of operating an automobile on the highway.

The appellant insurer appealed an arbitration decision finding that the respondent was involved in an 'accident' under the Statutory Accident Benefits Schedule.

The respondent slipped and fell on icy pavement at a gas station while walking back to his car after filling a tire with air.

The Director of Arbitrations dismissed the appeal, upholding the arbitrator's finding that the use or operation of the automobile was the dominant feature of the incident and that the icy pavement did not break the chain of causation.

The respondent was a passenger on a bus that was hijacked by armed robbers.

During the robbery, the respondent was struck on the head with a pistol and injured.

He applied for statutory accident benefits.

The arbitrator found that the incident was an 'accident' under the SABS-1996 because the bus was a critical part of the robbery.

The insurer appealed.

The Director of Arbitrations allowed the appeal, finding that the impairment was directly caused by the assault, an intervening act, rather than the use or operation of the automobile.

The applicant was injured in two separate automobile accidents.

She claimed income replacement benefits from the first accident and caregiver benefits from the second.

The insurer argued that under section 36(1) of the Statutory Accident Benefits Schedule, she could not receive both benefits concurrently, and sought to deduct an alleged overpayment from the first accident against the caregiver benefits.

The arbitrator held that section 36(1) applies only to benefits claimed from a single accident and does not bar receiving different benefits from separate accidents.

Furthermore, the insurer could not deduct past overpayments from current entitlements arising from a different accident under section 47(1).

The preliminary issues were resolved in favour of the applicant.