OFSCDRS 2007

The applicant sought a spousal death benefit following the fatal injury of her partner in a motor vehicle accident.

The insurer denied the benefit, arguing she was not a spouse under the Insurance Act, and paid the benefit amount into court pursuant to section 271 of the Act.

The insurer argued this payment transferred jurisdiction to the Superior Court of Justice, precluding arbitration.

The arbitrator held that section 271 does not interfere with an insured's unfettered right to choose the forum for dispute resolution under section 281.

The applicant was not precluded from proceeding to arbitration, and the request to stay the arbitration was denied.

The applicant was completely successful in her arbitration for statutory accident benefits and sought an assessment of her arbitration expenses.

The insurer disputed the hourly rates for senior counsel and a law clerk, the number of preparation hours, the use of junior counsel, and certain disbursements.

The arbitrator allowed the maximum hourly rate of $150 for senior counsel due to the complexity of the case and the applicant's success.

The arbitrator also allowed the use of junior counsel and a senior law clerk, and approved most of the claimed disbursements, including accounting reports used to calculate interest.

The applicant's expenses were assessed at a total of $56,592.95.

The applicant was injured in a motor vehicle accident and sought ongoing income replacement benefits (IRBs) beyond the 104-week mark, claiming she was completely unable to work due to a temporomandibular joint disorder (TMD) and chronic pain.

The insurer argued the TMD was caused by pre-existing bruxism and stress, not the accident, and that she was not disabled from working.

The arbitrator found the applicant's testimony credible, concluded the accident materially contributed to her TMD, and determined she met the test for post-104 week IRBs.

Claims for a specific dental assessment cost and a special award were dismissed, but the applicant was awarded her arbitration expenses and interest on overdue benefits.

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

During pre-hearing discussions, the applicant exhibited signs of mental difficulty, prompting an arbitrator to order a preliminary issue hearing to determine his mental capacity to proceed in the dispute resolution process.

At the hearing, the applicant, who was self-represented, demonstrated a lack of comprehension regarding the proceedings and the insurer's submissions.

The arbitrator found that the applicant lacked the mental capacity to proceed and declared him a party under disability pursuant to Rule 10 of the Dispute Resolution Practice Code.

The arbitrator directed that the Public Guardian and Trustee be notified to take appropriate steps under the Substitute Decisions Act.

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

After failing to attend two scheduled pre-hearing discussions and failing to maintain current contact information with the Commission, the insurer brought a motion to dismiss the arbitration proceeding.

The arbitrator found that the insured had effectively abandoned his application and that his conduct rendered the proceeding vexatious.

The application for arbitration was dismissed pursuant to Rule 68.1 of the Dispute Resolution Practice Code, and the insured was ordered to pay $1,000 in expenses to the insurer.

The insurer sought its expenses for the arbitration and the appeal after successfully defending against the appellant's claim for income replacement benefits.

The Director's Delegate found that the insurer was entitled to its expenses based on its success at both stages and the arbitrator's findings that the appellant lacked credibility and misrepresented his pre-accident condition.

The appellant was ordered to pay $6,300 for the arbitration expenses and $1,500 for the appeal expenses.

At a pre-hearing conference for a statutory accident benefits dispute, the insurer sought written particulars of the applicant's claim for a special award, and the applicant requested production of the insurer's adjuster's notes beyond the date of the application for mediation.

The arbitrator ordered the applicant to provide written particulars of the special award claim, finding that the insurer was entitled to know the case it had to meet under the Statutory Powers Procedure Act.

The arbitrator denied the applicant's request for the adjuster's notes beyond the mediation application date, as the applicant had not established their relevance or provided particulars for the special award claim.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, including income replacement, medical, and housekeeping benefits, which the insurer denied.

The arbitrator found that the applicant suffered from accident-related depression that substantially disabled her from performing the essential tasks of her employment and housekeeping for a limited period.

The applicant was awarded income replacement and housekeeping benefits for the period from March to June 2005, along with interest.

Claims for ongoing income replacement, further medical benefits, examination expenses, and a special award were dismissed.

In a further decision regarding the calculation of the applicant's Residual Earning Capacity (REC), the arbitrator determined whether compensation for hours not actually worked and shift premiums constituted overtime earnings.

The arbitrator held that both the compensation received for 3.75 hours per week not actually worked and the shift premiums were earnings from full-time employment, not overtime, and must be included in the calculation of the applicant's REC.

The applicant was injured in a motor vehicle accident and sought ongoing income replacement benefits after the 104-week mark.

The insurer had reinstated benefits prior to the pre-hearing but did not concede entitlement.

The arbitrator found that the applicant suffered a complete inability to engage in any suitable employment due to chronic pain, reduced endurance, and inability to sit, stand, or keyboard for significant periods.

The applicant was awarded ongoing income replacement benefits and her arbitration expenses.

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

The insurer refused to pay the benefits, citing the applicant's failure to provide required information and medical reports indicating he did not suffer a substantial inability to engage in pre-accident activities.

The applicant applied for arbitration more than two years after the insurer's refusal.

The arbitrator held that the insurer's refusal was clear and unequivocal, and the applicant was precluded from proceeding to arbitration because the application was filed beyond the two-year limitation period set out in subsection 281(5) of the Insurance Act and subsection 51(1) of the Schedule.

The insurer applied to vary an arbitration order that awarded the insured 24-hour attendant care benefits, alleging a material change in circumstances based on surveillance evidence.

The insurer then sought to compel the insured to attend an Insurer's Examination under section 42 of the Statutory Accident Benefits Schedule prior to the variation hearing.

The Arbitrator held that the insured was not required to attend the examination, reasoning that an insurer must have sufficient evidence to support its claim before delivering an Application for Variation, rather than seeking to obtain such evidence after the application has been accepted.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, including income replacement, medical, and housekeeping benefits.

The insurer terminated benefits, arguing the applicant's injuries fell within the Pre-approved Framework Guideline for Whiplash Associated Disorder Grade II (WAD II).

The arbitrator found that the applicant's impairments did not fall outside the WAD II Guideline, relying on independent assessments and surveillance evidence showing the applicant working and driving.

The arbitrator dismissed the claims for further medical treatment, income replacement, and housekeeping benefits, and ordered the applicant to repay an overpayment of income replacement benefits.

The claim for a special award was also dismissed as the insurer acted reasonably.

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

At the scheduled hearing, the applicant failed to attend.

The applicant's representative requested to be removed from the record due to a breakdown in communication, which was granted.

As the applicant failed to adduce any evidence to prove entitlement to the claimed benefits, the application was dismissed.

The insurer was awarded its expenses of the arbitration, fixed at $879.40.

The applicant was injured in a motor vehicle accident and submitted an Application for Accident Benefits to the Motor Vehicle Accident Claims Fund without a police report.

The Fund argued it did not receive a completed application and that there was no nexus between it and the applicant.

The arbitrator found that while the application became complete when the Fund eventually received the police report, the applicant's choice to submit the application to the Fund was arbitrary.

Because the applicant failed to establish a sufficient nexus with the Fund, the Fund was not an 'insurer' within the meaning of section 268 of the Insurance Act and was not required to respond to the application.

The applicant, an arborist, was injured in a motor vehicle accident and received income replacement benefits for almost three years before the insurer terminated them.

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

The arbitrator reviewed the medical evidence, preferring the reports of the applicant's treating physicians over the insurer's psychiatric expert, whose report was found to be biased and focused inappropriately on credibility rather than medical opinion.

Finding that the applicant's case was not frivolous and that he faced financial hardship, the arbitrator ordered the insurer to pay interim income replacement benefits of $600 per week, less deductions for Canada Pension Plan disability payments.

The applicant, injured in a motor vehicle accident, sought production of the insurer's surveillance evidence, the entire accident benefits file up to the date of the second mediation, and the insurer's policy and training manuals.

The arbitrator ordered production of surveillance evidence limited to what the insurer intended to rely on at the hearing, pursuant to Rule 40.1 of the Dispute Resolution Practice Code.

The arbitrator also limited production of the accident benefits file to the date of the first Application for Mediation, finding that subsequent documents were protected by litigation privilege.

The request for policy manuals was denied as the applicant failed to establish their relevance or reasonable necessity.

The insurer appealed an arbitrator's decision awarding interest on death and funeral benefits calculated from the date of the insured's death.

The Director's Delegate allowed the appeal, finding that under the Statutory Accident Benefits Schedule, interest only accrues from the date the benefit becomes overdue, which is 30 days after the insurer receives the application, not the date of death.

The matter was remitted to the arbitrator to determine the actual benefits due date, as the record was insufficient to make that determination on appeal.

The applicant, a six-year-old catastrophically impaired by a brain injury sustained when struck by a motor vehicle, sought increased attendant care benefits for continuous supervision provided by his mother.

The insurer argued that much of the supervision was regular parenting.

The arbitrator found that the applicant's impulsivity, unpredictability, and behavioural issues required continuous and vigilant supervision beyond regular parenting, and awarded the increased benefits.

The arbitrator dismissed the applicant's claims for the higher attendant care rates introduced in the 2006 Schedule amendments, as the accident occurred in 2001, and for the cost of a vocational assessment.

The applicant's law firm brought a motion to withdraw as solicitors of record due to a breakdown in the solicitor-client relationship.

The applicant did not explicitly consent to the withdrawal.

The arbitrator granted the motion pursuant to Rule 9.8 of the Dispute Resolution Practice Code, finding that the relationship had broken down.

The withdrawal was permitted subject to conditions requiring the firm to complete documentary production obligations and provide the applicant with a full copy of her file.