OFSCDRS 2006

The applicant, a caregiver injured in a motor vehicle accident, sought loss of earning capacity benefits (LECBs).

The parties agreed her residual earning capacity was zero, but disputed her pre-accident earning capacity (PEC).

The insurer argued her PEC was zero due to pre-accident cognitive and physical limitations, relying on a psychologist's assessment.

The arbitrator rejected the psychologist's opinion as unreliable and accepted the applicant's vocational expert, finding her PEC should be based on a gross annual income of $18,000 as an unskilled industrial worker.

The arbitrator dismissed the applicant's claims for retroactive attendant care benefits due to lack of evidence on quantum, and for the cost of an actuarial report obtained for settlement purposes.

The applicant was injured in a motor vehicle accident while in the course of his employment.

He applied for statutory accident benefits from the insurer, claiming he had elected to opt out of the Workplace Safety and Insurance Act (WSIA) scheme to pursue a tort action.

The insurer argued the election was invalid because it was made primarily to claim statutory accident benefits, contrary to section 59(2) of the Schedule.

The arbitrator found that the applicant and his paralegal took no meaningful steps to pursue a tort action for over two years, ignored correspondence from the insurer regarding the tort claim, and only issued a Statement of Claim after the insurer sought repayment of benefits.

The arbitrator concluded the election was not made primarily to pursue a tort action and was therefore invalid, entitling the insurer to repayment of benefits paid.

The applicant sought to fix the quantum of a special award previously ordered against the insurer for unreasonably delaying the payment of income replacement benefits, housekeeping benefits, and interest.

The arbitrator applied the Persofsky factors, considering the insurer's blameworthiness, the harm to the financially vulnerable applicant, and the need for deterrence.

The arbitrator fixed the total special award at $26,250 and amended the previous order to explicitly require the insurer to pay $8,286.82 in outstanding interest.

The applicant was found severely injured in a driveway between two houses with no memory of the incident.

He claimed statutory accident benefits, alleging he was struck by a motor vehicle.

The insurer denied the claim, arguing the injuries resulted from an assault.

After hearing extensive medical expert testimony regarding the pattern and severity of the injuries, the arbitrator concluded on a balance of probabilities that the injuries were consistent with a pedestrian-automobile collision and ruled that the applicant was involved in an 'accident' under the Schedule.

The applicant, who was injured in a motor vehicle accident, sought production of the insurer's entire claims file, including internal activity logs and correspondence created after the application for mediation.

The insurer claimed litigation and solicitor-client privilege over certain documents.

The arbitrator dismissed the motion for production, applying the presumption that documents created after the application for mediation are for the dominant purpose of litigation.

The arbitrator found that the applicant's claim for a special award did not override the insurer's claims of privilege.

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

The parties settled all substantive issues in dispute prior to the conclusion of the arbitration.

The applicant sought an order for the expenses of the arbitration proceeding.

The insurer argued the arbitrator lacked jurisdiction to award expenses because the settlement ended the proceeding.

The arbitrator held that jurisdiction continues until an order is made ending the proceeding.

After considering the criteria for awarding expenses, including the mixed success of the parties and the unnecessary motion brought by the applicant, the arbitrator ordered each party to bear their own expenses.

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

The insurer denied income replacement and housekeeping benefits under s. 30(1)(b) of the Statutory Accident Benefits Schedule, arguing the applicant was driving with an expired licence.

The arbitrator held that the exclusion for driving without a valid licence is subject to a due diligence defence.

Finding that the applicant reasonably relied on the Ministry of Transportation to send a renewal notice, which was delayed due to a public service strike, the arbitrator concluded the applicant reasonably believed his licence was valid.

The exclusion did not apply, and the applicant was permitted to proceed to arbitration.

The applicant, who was injured in a motor vehicle accident, sought a rehabilitation benefit under the Statutory Accident Benefits Schedule for the cost of two round-trip airline tickets to India for herself and her husband.

She argued the trip would provide a therapeutic environment.

The arbitrator dismissed the application, applying the ejusdem generis rule to find that airline tickets for visiting family and friends do not fall within the same class as the specific rehabilitation benefits contemplated by the Schedule.

The claims for interest and expenses were also dismissed or deferred.

The applicant sought income replacement benefits following a motor vehicle accident.

The applicant failed to attend the arbitration hearing or provide any evidence to support her claim.

As the onus is on the applicant to prove entitlement to benefits, the arbitrator dismissed the claim.

The arbitrator ordered the applicant to pay $1,500 in expenses to the insurer, finding that commencing a proceeding and failing to pursue it caused unnecessary expenses.

The applicant sought expenses following an arbitration decision where he recovered over $20,000 in income replacement benefits but withdrew fabricated claims for attendant care and housekeeping expenses.

The arbitrator applied the criteria under section 12 of Ontario Regulation 664.

Although the applicant was more successful overall, his claims for attendant care and housekeeping were found to be frivolous and fabricated.

Consequently, the arbitrator ordered that each party bear their own expenses of the arbitration proceeding.

The applicants, dependent daughters of the deceased, claimed the full death benefit under the Statutory Accident Benefits Schedule.

The insurer paid a portion to the deceased's separated spouse, despite a separation agreement releasing all spousal claims.

The arbitrator found that the separated spouse had waived his right to the benefit, entitling the daughters to the remaining amount.

The arbitrator also ordered the insurer to pay a maximum 50% special award, finding that the insurer acted unreasonably and in bad faith by ignoring binding case law and failing to properly investigate the claim.

The insurer requested a preliminary issue hearing to stay the applicant's arbitration until she attended an insurer's examination under section 42 of the Statutory Accident Benefits Schedule.

The applicant's income replacement benefits had been terminated in April 2004.

Despite numerous requests for reinstatement supported by medical evidence of a worsening condition and subsequent surgery, the insurer did not request an examination until three months before the scheduled arbitration.

The arbitrator found that the insurer's request was not reasonably necessary to adjust the file, but rather an attempt to bolster its case for the upcoming arbitration.

The insurer's request was dismissed, and the arbitration was ordered to proceed as scheduled.

The insurer sought production of an accounting report prepared by the defendants in a related tort action, which the applicant had received.

The applicant initially opposed production on the basis of litigation privilege but abandoned that position.

The arbitrator ordered the applicant to produce the report, finding that it was relevant to the quantum of income replacement benefits and that its production would likely simplify and expedite the arbitration process by avoiding the need for the insurer to commission a further report.

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

Following a decision dismissing her claims, the issue of expenses was addressed.

The arbitrator applied the new expense provisions under section 12(2) of Regulation 664, finding that the insurer was entirely successful, the applicant failed to respond to a reasonable settlement offer, and the applicant's conduct prolonged and hindered the proceeding.

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

The insurer sought an assessment of its expenses and an order specifying the interest rate and start date for a repayment order of $33,997.72 made in a previous arbitration decision.

The arbitrator found that the insurer was not entitled to an assessment of its expenses because it failed to follow the rules in the Dispute Resolution Practice Code, specifically by waiting 19 months to enforce the order and failing to serve the applicant with an itemized bill of costs.

The arbitrator declined to exercise discretion to excuse the delay.

Regarding interest, the arbitrator ordered the applicant to pay interest on the $33,997.72 repayment amount at the bank rate of 4.75% per annum from October 4, 1999, as the applicant had notice of the overpayment and failed to repay it in a timely manner.

The insurer sought its expenses of the arbitration hearing after successfully defending a fraudulent claim for statutory accident benefits.

The arbitrator assessed the insurer's claim for legal fees and disbursements.

The arbitrator disallowed fees for preparing and attending mediation, noting that the Insurance Act only confers discretion to award expenses for the arbitration proceeding itself.

The arbitrator also reduced the disbursements claimed for two accident reconstruction experts, finding that calling both as witnesses was unnecessary and that the second expert's brief report did not justify the amount claimed.

The applicant was ordered to pay the insurer $4,911.80 in expenses.

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

A dispute arose and the applicant applied for arbitration.

During a pre-hearing discussion, the applicant's counsel advised of a breakdown in the solicitor-client relationship and sought to be removed from the record, with the applicant's consent.

The applicant also sought to withdraw the arbitration application without costs.

The insurer consented to both requests.

The arbitrator ordered the removal of the solicitors from the record and the withdrawal of the arbitration without costs.

The applicant was injured in two motor vehicle accidents and claimed statutory accident benefits from the insurer.

The parties engaged in settlement discussions prior to an arbitration hearing and reached an agreement.

The applicant signed a release and settlement disclosure notice but later attempted to rescind the settlement within the two-day cooling-off period.

However, she subsequently withdrew her rescission within the same period, confirming her acceptance of the settlement.

After the cooling-off period expired, she again attempted to reopen her claim.

The arbitrator held that the applicant had entered into a binding, full and final settlement and was therefore precluded from proceeding to arbitration.

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

At the pre-hearing, the insurer's counsel was unavailable for an early hearing date, resulting in a significant delay.

The applicant brought a motion for interim benefits pending the delayed hearing.

The arbitrator found that the insurer's choice of counsel should not frustrate the prompt resolution goals of the dispute resolution process.

The motion was granted, and the insurer was ordered to pay interim benefits of $400 per week pending the final arbitration decision.

Following the dismissal of the applicant's claim for non-earner benefits, the parties were unable to resolve the issue of expenses.

The arbitrator found that the insurer was entitled to its reasonable expenses as the successful party.

However, because the applicant's claim involved a novel factual issue regarding her ability to practice her religious faith, the arbitrator applied a 40% discount to the insurer's expenses.

The applicant was ordered to pay the insurer's expenses assessed at $4,085.16.