OFSCDRS 2004

The applicant requested a late adjournment of an arbitration hearing due to a scheduling conflict arising from a lack of communication between his former agent and current solicitor.

The arbitrator granted the adjournment subject to an order for costs thrown away.

The issue was whether the applicant or his representative should be personally liable for the $250 expense order under section 282(11.2) of the Insurance Act.

The arbitrator found that while the communication failure was inexcusable, it did not amount to bad faith or an intention to cause delay.

Therefore, the applicant was ordered to personally pay the expenses.

The applicant sought interim benefits and interim expenses pending the final resolution of his claim for statutory accident benefits following a motor vehicle accident.

The arbitrator found that while the applicant established financial urgency, he failed to establish a prima facie case for entitlement to income replacement benefits due to incomplete and conflicting evidence regarding his post-accident income and disability.

The motion for interim benefits was dismissed.

However, the arbitrator granted the applicant's motion for interim expenses, awarding funds for witness summons, process server fees, expert reports, and legal consultation to assist the unrepresented applicant in preparing for the main arbitration hearing.

The applicant sought statutory accident benefits following a motor vehicle accident.

After failing to produce required documentation, including a WSIB election form, the applicant's representative withdrew.

The applicant subsequently failed to attend the arbitration hearing without providing a reasonable explanation.

The arbitrator dismissed the arbitration due to the applicant's failure to present evidence and prove her case, and awarded the insurer $500 in arbitration expenses.

The applicant was injured in two motor vehicle accidents and claimed caregiver, housekeeping, and medical benefits following the second accident.

The insurer terminated caregiver and housekeeping benefits in December 2000.

The arbitrator found that the applicant was entitled to caregiver and housekeeping benefits up to February 23, 2001, based on DAC assessments indicating she had substantially recovered to her pre-second-accident baseline by that date.

The arbitrator also awarded $600 for a massage therapy treatment plan to address an exacerbation of her fibromyalgia, rejecting the insurer's reliance on an outdated orthopaedic assessment.

The appellant was injured in a motor vehicle accident and claimed income replacement benefits based on self-employment.

The insurer requested corporate documentation, which the appellant delayed in providing.

At a preliminary hearing, the Arbitrator found the appellant failed to comply with reasonable requests for information and ordered her disentitled to benefits for the period of non-compliance pursuant to section 33(2) of the SABS-1996.

On appeal, the Director's Delegate held that section 33(2) authorizes a delay or suspension of benefits, not a permanent forfeiture.

The Delegate also found the Arbitrator erred in treating the preliminary order as a final dismissal of the claim for that period.

The appeal was allowed and a new arbitration hearing was ordered.

The applicant applied for arbitration after the insurer terminated her weekly caregiver benefits following a motor vehicle accident.

The applicant failed to appear at the arbitration hearing.

Consequently, the arbitrator dismissed the application for arbitration.

The insurer was awarded its expenses for the arbitration proceeding in the amount of $5,436.59.

The applicant sought to recover expenses following an arbitration decision that awarded her partial housekeeping benefits.

The insurer also sought its expenses.

The arbitrator reviewed the amended Expense Regulation, which removed the broad discretion to consider access to the dispute resolution system and mandated a results-based approach.

Finding that both parties enjoyed some measure of success but neither achieved their ultimate objective, the arbitrator concluded that each party should bear its own expenses.

The applicant's pre-hearing offer to settle was disregarded because subsequent settlements and withdrawals of other claims vitiated the original offer.

The applicant's claims for non-earner and attendant care benefits were previously dismissed.

The parties were unable to resolve the issue of expenses.

The arbitrator applied the criteria set out in the Expense Regulation and found that the insurer was entitled to its reasonable expenses, given its success in the proceeding and the applicant's failure to provide evidence supporting its claims.

The insurer was awarded expenses in the amount of $2,171.40.

The applicant suffered a panic attack while driving on Highway 401, causing him to exit his moving vehicle, run to the edge of the highway, and leap off the overpass onto the road below.

The insurer denied his application for statutory accident benefits, arguing the incident was not an 'accident' under the Schedule and that the panic attack was an intervening force.

The arbitrator found that the applicant's panic attack directly caused him to exit the vehicle and jump, with no break in the chain of events.

Applying the 'thin skull' principle, the arbitrator concluded the incident constituted an accident arising out of the use or operation of an automobile, entitling the applicant to claim benefits.

In a pre-hearing decision regarding a claim for statutory accident benefits, the insurer sought production of the applicant's bank statements from one year prior to the accident to date to verify post-accident income.

The arbitrator dismissed the request, finding that the amount of the weekly income replacement benefit was not in dispute and the insurer had no evidentiary basis to suspect the applicant was employed during the disputed period.

The arbitrator concluded that ordering production based on speculation alone would be unnecessarily intrusive and contrary to the Dispute Resolution Practice Code.

Following a finding that the insurer unreasonably withheld and delayed payment of income replacement benefits, the arbitrator determined the quantum of a special award and arbitration expenses.

The arbitrator calculated the notional interest amount under section 282(10) of the Insurance Act and awarded $39,900, representing approximately half of the maximum allowable amount, citing the insurer's blameworthy conduct and intransigence.

The applicant was also awarded $16,118.80 in arbitration expenses due to the insurer's unreasonable positions that prolonged the hearing.

The Applicant was injured in a motor vehicle accident and received income replacement benefits (IRBs) from the Insurer.

The Insurer terminated the IRBs and the Applicant elected to attend a Designated Assessment Centre (DAC) assessment.

After retaining counsel, the Applicant cancelled the DAC assessment and applied for mediation.

The Insurer argued the Applicant was precluded from proceeding to arbitration under s. 50(1)(c) of the Statutory Accident Benefits Schedule for failing to attend a required assessment.

The Arbitrator found that the Insurer failed to provide clear and straightforward information about the dispute resolution process, making the election invalid.

Alternatively, the Arbitrator held that the Applicant had a bona fide change of mind after receiving legal advice and was entitled to revoke her election.

The preliminary issue was resolved in favour of the Applicant.

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

The applicant failed to attend the arbitration hearing and had a history of failing to communicate with counsel or comply with production orders.

The arbitrator dismissed the arbitration due to the applicant's failure to meet the burden of proof.

The applicant was ordered to pay $500 in expenses to the insurer.

The applicant was injured in a motor vehicle accident and received caregiver benefits, which the insurer terminated after 104 weeks.

The applicant attended a scheduled DAC assessment but insisted on videotaping it.

The DAC refused to proceed and charged a cancellation fee.

The insurer argued the applicant failed to make himself reasonably available for the assessment under section 50 of the Schedule and sought reimbursement of the fee.

The arbitrator found that the applicant made himself reasonably available by attending the assessment, and it was the DAC that refused to proceed without providing reasons.

The applicant was permitted to proceed to arbitration and was not required to pay the cancellation fee.

The insurer appealed an arbitration decision finding that the claimant was involved in a motor vehicle accident, arguing the accident was staged.

The insurer relied on expert accident reconstruction evidence and testimony from the other vehicle's owner, who claimed she gave her keys to someone to arrange a fictitious accident.

The Director's Delegate dismissed the appeal, holding that the Arbitrator's factual findings were supported by evidence.

The Arbitrator committed no error of law in concluding that the claimant's memory may have been affected by trauma and the lapse of time, and in finding no evidence that the claimant participated in a conspiracy to stage the accident.

The applicant was injured in a motor vehicle accident and his claims for statutory accident benefits were dismissed in a previous arbitration decision.

In this subsequent decision on expenses, the arbitrator ordered the applicant to pay the insurer's expenses.

Applying the criteria under Ontario Regulation 664, the arbitrator found the insurer was completely successful and awarded $12,112.66 in fees and disbursements.

The applicant was injured in a motor vehicle accident and claimed statutory accident benefits, which the insurer denied.

The applicant subsequently died, and her estate failed to appear at the arbitration hearing.

As the estate failed to meet its burden of proof, its claims for caregiver benefits, housekeeping expenses, a special award, and arbitration expenses were dismissed.

The insurer's claims for repayment of benefits and arbitration expenses were also dismissed because it presented no evidence or submissions.

The appellant was injured in a motor vehicle accident and claimed income replacement benefits (IRBs), housekeeping benefits, and a special award.

The Arbitrator found that she was employed as a part-time bartender at the time of the accident, limiting her IRB entitlement to 10 weeks until she returned to that job.

The Arbitrator also excluded short-term disability benefits from her pre-accident gross income calculation, denied ongoing housekeeping benefits based on her family doctor's report, and refused a special award.

On appeal, the Director's Delegate upheld the Arbitrator's findings, concluding there were no errors of law in determining her employment status, calculating her gross income, or assessing her credibility and entitlement to benefits.

The appeal was dismissed.

The applicant was struck by a vehicle and claimed statutory accident benefits, including attendant care and housekeeping benefits beyond the 104-week mark.

The insurer terminated these benefits on the basis that the applicant did not suffer a catastrophic impairment.

The arbitrator reviewed the medical evidence, including a Designated Assessment Centre (DAC) assessment, and found that the applicant's whole person impairment was 30 per cent, falling short of the 55 per cent threshold required for a catastrophic impairment.

The arbitrator also found no evidence of a class 4 or 5 mental or behavioural disorder.

The claims for attendant care, housekeeping, and auto repair expenses were dismissed, and the applicant was ordered to pay the insurer's arbitration expenses.

The applicant was 24 weeks pregnant when she was injured in a motor vehicle accident.

Her child was born prematurely the next day and died 15 days later.

The insurer denied the applicant's claim for a statutory death benefit, arguing that an unborn child is not a 'person' or 'dependant' at the time of the accident.

The arbitrator applied the en ventre sa mère legal fiction, finding that the child, having been born alive, acquired the status of a dependant at the time of the accident.

The applicant was awarded the $10,020 death benefit, plus a $1,500 special award for the insurer's unreasonable delay in paying funeral expenses.