Cases from the Ontario Financial Services Commission - Dispute Resolution Services
Motion to dismiss arbitration without a hearing denied; insurer cannot bypass Rule 68 requirements.
The applicant was injured in a motor vehicle accident and applied for statutory accident benefits.
After the applicant's counsel was removed from the record and the applicant indicated he would not attend the arbitration, the insurer brought a motion to dismiss the arbitration without a hearing under Rules 34.1(e) and 65.7 of the Dispute Resolution Practice Code.
The arbitrator dismissed the motion, applying the implied exclusion rule of statutory interpretation to find that because Rule 68 specifically provides for dismissal without a hearing and its strict timelines were not met, Rules 34.1(e) and 65.7 could not be used to bypass those requirements.
Arbitration stayed until applicant attends insurer's psychiatric examination regarding her psychological impairments.
The insurer sought a stay of arbitration under section 50(b) of the Statutory Accident Benefits Schedule until the applicant attended a psychiatric examination under section 42.
The applicant argued the examination was unreasonable because the insurer had already terminated her income replacement benefits based on physical assessments and had acted in bad faith.
The arbitrator found that the applicant had placed her psychological condition in issue by submitting a psychologist's report indicating she was disabled due to psychological impairments.
The arbitrator held that the requested examination was reasonably required and ordered the applicant to attend the assessment before proceeding to arbitration on her income replacement benefits claim.
Motion for adjournment dismissed; delaying arbitration for pending assessments on undisputed claims runs counter to efficiency.
The applicant, injured in three motor vehicle accidents, sought an adjournment of an ongoing arbitration hearing regarding statutory accident benefits.
The applicant requested the delay to add a claim for income replacement benefits and to await the results of multi-disciplinary examinations requested by the insurer.
The arbitrator dismissed the motion, finding that the income replacement benefit claim was not yet in dispute and that delaying the hearing to await unknown assessment results would run counter to the goals of timeliness and efficiency.
The arbitrator also noted that the pending assessments would not assist in determining the existing issues, such as catastrophic impairment.
Applicant ordered to pay $1,000 in arbitration expenses after unsuccessful claim and causing unreasonable delay.
Following the dismissal of the applicant's claims for income replacement benefits and a special award, both parties sought their arbitration expenses under subsection 282(11) of the Insurance Act.
The arbitrator applied the criteria under Regulation 664 and the Dispute Resolution Practice Code, finding that the insurer was entirely successful, had made a formal offer to settle that was more generous than the outcome, and that the applicant's conduct caused unreasonable delay.
The applicant's claim for expenses was dismissed, and the applicant was ordered to pay $1,000 towards the insurer's legal fees and disbursements.
Application for income replacement benefits dismissed; applicant capable of part-time sedentary employment.
The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them after 104 weeks.
The applicant sought arbitration, claiming a complete inability to engage in any employment for which she was reasonably suited.
The arbitrator reviewed the applicant's education, training, and work history, noting she primarily worked part-time.
Relying on the consensus of the applicant's own medical experts that she could return to part-time sedentary work, the arbitrator found she did not meet the test for complete inability to work.
The application for income replacement benefits and a special award was dismissed.
Arbitration stayed to prevent multiple proceedings where the applicant had already commenced a comprehensive civil action.
The applicant was injured in a motor vehicle accident and commenced a civil action against the at-fault driver and the insurer for various damages and benefits.
She subsequently applied for arbitration at the Financial Services Commission of Ontario for supplementary medical, rehabilitation, and care benefits.
The insurer brought a motion to stay the arbitration on the basis of the related and more comprehensive tort action.
The Arbitrator applied the test for multiple proceedings and found that the arbitration involved substantially similar issues, would require overlapping evidence, and could lead to inconsistent results.
The arbitration was stayed pending the amendment of the Statement of Claim in the civil action and the outcome of the court proceeding.
Prolonged passive chiropractic treatment denied, but acupuncture allowed as a reasonable palliative measure for chronic pain.
The applicant was struck by a car as a pedestrian and sustained soft tissue injuries that developed into chronic pain and psychological impairments.
She sought statutory accident benefits for prolonged passive chiropractic and acupuncture treatments, assistive devices, attendant care, and housekeeping expenses.
The arbitrator found that the applicant's failure to submit a treatment plan for chiropractic care disentitled her to those expenses, and that the prolonged passive chiropractic treatment was not reasonable or necessary.
However, the arbitrator allowed the expenses for acupuncture as a reasonable palliative measure, along with the cost of a TENS machine and partial housekeeping expenses.
Claims for attendant care and other assistive devices were dismissed.
Housekeeping benefits extended for a limited period due to chronic pain, payable at $30 weekly.
The applicant was injured in a rear-end motor vehicle accident and sought housekeeping and home maintenance benefits beyond the insurer's termination date of June 2, 2003.
The arbitrator found that the medical evidence, including the insurer's own multi-disciplinary assessment, supported that the accident materially contributed to a chronic pain condition limiting her ability to perform housekeeping.
However, the arbitrator drew an adverse inference from the applicant's failure to provide evidence regarding the outcome of a recommended 10-week psychotherapy treatment plan, concluding her entitlement ended on September 15, 2003.
Benefits were awarded at a rate of $30 per week based on in-home assessments, rather than the maximum $100 per week claimed.
Application for arbitration dismissed as filed in error; representative ordered to personally pay insurer's expenses.
The applicant filed an application for arbitration in error regarding claims that had not yet been mediated.
The insurer brought a motion to dismiss the application, seeking a return of its $3,000 assessment fee and its arbitration expenses.
The arbitrator dismissed the application for arbitration but found no jurisdiction to order the return of the assessment fee, as the relevant provision of the Insurance Act had been repealed.
However, the arbitrator ordered the applicant's representative to personally pay $150 in expenses to the insurer, as the representative's administrative error caused the application to be filed without reasonable cause.
Arbitration allowed to proceed, but applicant's representative ordered to personally pay $500 for adjournment costs.
The insurer brought a motion to dismiss the applicant's arbitration for statutory accident benefits and sought costs against the applicant's representative personally, following the representative's failure to comply with conditions attached to a previously granted adjournment.
The arbitrator declined to dismiss the arbitration, finding that the applicant was not responsible for the representative's conduct and the proceeding was not frivolous or vexatious.
However, the arbitrator found that the representative failed without reasonable explanation to comply with the adjournment conditions and caused the insurer to incur expenses without reasonable cause.
The representative was ordered to personally pay $500 in costs to the insurer.
Applicant not excluded from income replacement benefits; reasonably believed he had employer's consent to drive van.
The applicant was injured in a motor vehicle accident while driving his employer's van.
The insurer denied income replacement benefits, arguing the applicant was excluded under s. 30(1)(d) of the Statutory Accident Benefits Schedule because he knew or ought to have known he was operating the vehicle without the owner's consent.
The arbitrator found the applicant's evidence credible that he reasonably believed he had the consent of the company's retired owner to use the van for a weekend trip to Toronto.
The arbitrator concluded the applicant was not excluded from pursuing his claim for income replacement benefits.
Insurer's request for a medical examination denied as it was not reasonably necessary for claims adjustment.
The applicant was injured in a motor vehicle accident and received income replacement benefits, which the insurer later terminated.
The applicant applied for arbitration.
The insurer subsequently requested that the applicant attend a medical examination with a respirologist.
The applicant refused, and a preliminary issue hearing was held to determine if the examination was reasonably necessary under section 42 of the Statutory Accident Benefits Schedule.
The arbitrator found that the examination was not reasonably necessary for claims adjustment, as the insurer had been aware of the applicant's medical condition for years and had already made its adjusting decision.
The arbitration was ordered to proceed as scheduled.
Insurer failed to prove applicant wilfully misrepresented accident circumstances; applicant not disentitled to accident benefits.
The applicant claimed statutory accident benefits following a motor vehicle accident.
The insurer denied the claim and argued at a preliminary issue hearing that the applicant was disentitled to benefits under section 48(1) of the Statutory Accident Benefits Schedule because he wilfully misrepresented the circumstances of the accident.
The insurer relied on an accident reconstruction expert who concluded the vehicle damage was inconsistent with the applicant's statements.
The arbitrator found the expert's analysis contained numerous weaknesses, including reliance on an unreliable speed estimate and photographs taken after a subsequent accident.
The arbitrator concluded the insurer failed to discharge its onus of proving wilful misrepresentation and held the applicant was not disentitled to benefits.
Applicant permitted to proceed to arbitration as sufficient information was provided to commence adjusting the claim.
The insurer denied benefits, alleging the applicant failed to submit an application within 30 days of receiving the forms, as required by section 32(3) of the Statutory Accident Benefits Schedule.
On a preliminary issue hearing, the arbitrator found that the applicant had provided sufficient information to the insurer within the 30-day period to allow it to commence adjusting the claim, even if not on the insurer's specific forms.
Furthermore, the insurer failed to properly inform the applicant of the consequences of non-compliance.
The applicant was permitted to proceed to arbitration.
Application for statutory accident benefits for physiotherapy, adjustable bed, and van dismissed due to pre-existing conditions.
The applicant was injured in a motor vehicle accident and sought payment for physiotherapy treatment, an adjustable bed, and a scooter accessible van under the Statutory Accident Benefits Schedule.
The insurer denied the claims.
The arbitrator found that the applicant's need for physiotherapy and an adjustable bed was related to pre-existing conditions, including fibromyalgia, rather than the accident.
Furthermore, the recommended aqua therapy and adjustable bed were not found to be reasonable and necessary.
The claim for a scooter accessible van was dismissed because the applicant already had an existing vehicle and the cost of modifying it did not exceed the cost of purchasing a new one.
The application was dismissed in its entirety.
Applications for statutory accident benefits dismissed after expert evidence established no motor vehicle collision occurred.
The applicants claimed statutory accident benefits following an alleged motor vehicle accident on May 25, 2002.
The insurer denied the claims, arguing that no accident occurred.
At the preliminary issue hearing, the applicants requested an adjournment to obtain new representation, which was denied due to their failure to make reasonable efforts following a previous adjournment.
On the substantive issue, the insurer presented unrebutted expert evidence from two accident reconstruction specialists demonstrating that the physical damage to the vehicles was inconsistent with a collision.
The arbitrator found the applicants' evidence insufficient to rebut the physical evidence and concluded that no accident occurred.
The applications for arbitration were dismissed.
Failure to disclose brief post-accident employment was not a material misrepresentation terminating all benefit entitlement.
The insurer appealed an arbitration decision finding that the insured's deliberate failure to disclose a brief period of post-accident employment did not preclude him from receiving weekly income replacement benefits.
The Director's Delegate upheld the decision, agreeing that the misrepresentation was not 'material' under section 48 of the SABS-1996.
The misrepresentation did not undermine the fundamental basis of the claim, as the insured remained disabled from his pre-accident employment, and the insurer's remedy was limited to repayment of the overpaid benefits under section 47.
Insurer awarded $2,244.93 in arbitration expenses after applicant's statutory accident benefits claims were dismissed.
Following the dismissal of the applicant's claims for statutory accident benefits, the insurer sought an assessment of its arbitration expenses.
The arbitrator reviewed the insurer's docketed time and reduced the hours claimed, finding that the issues were straightforward and the hearing was brief.
The arbitrator awarded the insurer $2,244.93 in fees and disbursements but declined to award the $3,000 arbitration assessment fee, as the insurer had not provided prior notice of a claim that the proceeding was frivolous, vexatious, or an abuse of process.
Applicant's claim for income replacement benefits dismissed after he abandoned the hearing; insurer awarded $1,500 in expenses.
The unrepresented applicant sought ongoing income replacement benefits following a motor vehicle accident.
At the hearing, the applicant requested an adjournment to retain counsel, which was denied due to his repeated failures to retain representation and comply with production orders.
The applicant and his father then left the hearing.
The arbitrator dismissed the applicant's claim for benefits as he failed to present evidence to prove his case.
The insurer's claim for repayment of benefits was dismissed because it failed to provide the required notice within 12 months.
The applicant was ordered to pay $1,500 in arbitration expenses due to his conduct, but the insurer's claim for its $3,000 assessment fee was dismissed as the authorizing provision had been repealed.
Appellant ordered on consent to pay $2,500 in appeal expenses to the respondent.
The Director's Delegate issued an appeal expenses order on consent, requiring the appellant to pay the respondent $2,500.00 in appeal expenses pursuant to section 283 of the Insurance Act.
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