OFSCDRS 2007

Following the dismissal of the respondent's arbitration as abandoned, the applicant insurer sought its reasonable expenses.

The respondent failed to provide submissions.

The arbitrator found that the respondent's conduct, including failing to provide productions and abandoning the proceeding, prolonged and hindered the arbitration.

The applicant was awarded $2,141.35 in expenses, representing counsel fees and disbursements for steps taken after the initial pre-hearing conference.

The insurer brought a motion to remove the applicant's representative, Ms. Lubman, due to a conflict of interest.

Ms. Lubman owned the clinic that provided the psychological evaluation for which the applicant sought payment.

The arbitrator found that the applicant did not have a sufficient understanding of the consequences of the conflict of interest and had not made an informed decision to waive it.

The motion was granted and Ms. Lubman was removed as the applicant's representative.

The applicant's law firm, Mazin Rooz Mazin, brought a motion to withdraw as solicitors of record in a statutory accident benefits dispute, citing a breakdown in the solicitor-client relationship and an inability to obtain meaningful instructions.

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 its documentary production obligations and provide the applicant with a full copy of his file prior to the upcoming arbitration hearing.

The applicant sought statutory accident benefits following an alleged motor vehicle accident.

The insurer disputed the claim, raising the preliminary issue of whether an 'accident' actually occurred.

The arbitrator found the applicant's testimony to be highly inconsistent and lacking credibility, noting that the applicant had previously given a different sworn statement.

Expert evidence indicated the vehicle damage was inconsistent with the applicant's description and more consistent with being driven against a rough surface.

Furthermore, the other individuals allegedly involved in the accident had been convicted of fraud related to the same incident.

The arbitrator concluded the applicant failed to prove on a balance of probabilities that he was involved in an accident.

The applicant was injured in a motor vehicle accident and subsequently experienced mental deterioration.

A preliminary issue hearing was held to determine if the applicant had the mental capacity to proceed in the dispute resolution process.

Relying on the uncontradicted psychiatric evidence of Dr. Hoffman and the testimony of the applicant's wife, the arbitrator found the applicant incapable of managing property and personal care under the Substitute Decisions Act.

The arbitrator appointed the applicant's wife to act on his behalf in the arbitration proceedings.

The insurer brought a motion for leave to amend its Response to an Application for Arbitration to include new issues, specifically whether the applicant was actually involved in the motor vehicle accident, whether the applicant must repay benefits received, and the quantum of income replacement benefits.

The motion was prompted by unsolicited witness statements suggesting the applicant was not in the accident.

The arbitrator granted the motion, finding that the issue of involvement goes to the heart of entitlement, the amendment was sought in a timely manner after the evidence surfaced, and the delay and prejudice did not outweigh the need to determine the core issue of entitlement.

The applicant sought statutory accident benefits following a motor vehicle accident, claiming entitlement to income replacement, medical, transportation, and housekeeping benefits.

The insurer had terminated income replacement benefits and denied the other claims.

The arbitrator dismissed the application, finding the applicant's evidence regarding his inability to work due to pain to be vague and unpersuasive, particularly given his continued employment for months post-accident and significant unexplained bank deposits.

The claims for medical, transportation, and housekeeping benefits were also dismissed due to a lack of supporting evidence.

The insurer appealed an arbitrator's decision awarding the claimant ongoing income replacement benefits (IRBs), medical benefits, interest, and a $10,000 special award following a motor vehicle accident.

The claimant had returned to work for six years before stopping due to disability.

The Director's Delegate upheld the arbitrator's finding that the accident materially contributed to the claimant's disability, rejecting the insurer's argument that intervening events were the sole cause.

The Delegate also upheld the special award, finding the insurer unreasonably withheld benefits by ignoring its own expert's advice and relying on a flawed DAC report.

The claimant's cross-appeal regarding the inclusion of employer-paid benefits in her pre-accident income and the assessment of her arbitration expenses was dismissed.

The insurer brought a motion to stay the arbitration hearing until the applicant attended a section 42 insurer's examination.

The applicant refused to attend the examination unless she was permitted to videotape it, citing a prior injury during an assessment and cognitive deficits.

The arbitrator applied the principles from Bellamy v. Johnson and found that the applicant's insistence on videotaping the assessment was not an unreasonable refusal to attend, provided the recording is conducted with safeguards to ensure objectivity and minimize disruption.

Following an arbitration decision awarding the applicant income replacement benefits, the arbitrator considered claims for pre-judgment interest and a special award.

The arbitrator found the applicant entitled to interest at 2% per month compounded monthly on the overdue benefits.

Regarding the special award, the arbitrator determined there was jurisdiction to consider delays in payments made prior to the arbitration hearing.

A special award of $625 was ordered for an initial unreasonable delay in 2004, but claims for special awards for subsequent periods were dismissed as the insurer's actions were not found to be unreasonable.

The applicant was injured in a rear-end motor vehicle accident and sought ongoing income replacement benefits (IRBs) and medical benefits after the insurer terminated them.

The insurer argued the applicant was not completely unable to engage in suitable employment and questioned his credibility, citing symptom magnification and malingering.

The arbitrator found the applicant credible and concluded that the accident caused significant physical and psycho-emotional impairments, including chronic pain syndrome, fibromyalgia, and post-traumatic stress disorder, rendering him completely unable to work.

The arbitrator awarded ongoing IRBs from the 104-week mark, payment of outstanding medical accounts for psychological treatment, and a $5,000 special award against the insurer for unreasonably delaying and denying benefits despite receiving medical reports supporting the applicant's disability.

The insurer brought an application to vary a consent order that required it to pay ongoing income replacement benefits to the insured.

The insurer argued that the change in the test for entitlement to income replacement benefits at the 104-week mark constituted a material change in circumstances justifying a variation of the order.

The arbitrator dismissed the application, finding that the change in the test for entitlement, in isolation, did not constitute a material change in circumstances, especially since the insurer had consented to the order shortly before the 104-week mark without insisting on a time limit and later conceded that the insured met the post-104-week test.

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

Following a consent order requiring the insurer to pay ongoing benefits, the insurer unilaterally terminated the benefits based on new medical information, arguing the test for entitlement had changed at the 104-week mark.

The arbitrator found that the insurer acted unreasonably by terminating benefits in contravention of the consent order and section 287 of the Insurance Act, which requires an insurer to continue payments until a variation order is obtained.

The arbitrator ordered the insurer to pay a special award of $6,000 for unreasonably withholding payments.

The applicant failed to attend two scheduled arbitration pre-hearings despite an undertaking by his counsel to arrange a date when he could attend.

The insurer sought expenses for costs thrown away.

The arbitrator found that the applicant's counsel breached an enforceable undertaking to the tribunal and failed to take sufficient positive action to ensure compliance.

The arbitrator concluded that the counsel's conduct amounted to an abuse of process and caused expenses to be wasted without reasonable cause.

The insurer was awarded $800 in expenses, payable jointly and severally by the applicant and his counsel of record.

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

The insurer terminated the benefits but, due to a clerical error, continued to issue payments for nearly a year, resulting in an overpayment of $19,542.86.

The applicant applied for arbitration but failed to appear at the hearing.

The arbitrator dismissed the applicant's claims for ongoing benefits and ordered the applicant to repay the overpaid amount plus interest, as the insurer had provided notice of the error within the required 12-month period.

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

After his representatives withdrew from the record, the applicant failed to attend the scheduled arbitration hearing.

As no evidence was adduced in support of the application, the arbitrator dismissed the application as abandoned.

The applicant was ordered to pay the insurer's expenses of the arbitration, fixed at $587.28, due to his conduct which prolonged and hindered the proceeding.

The applicant applied for arbitration at the Financial Services Commission of Ontario after the insurer refused to pay various statutory accident benefits following a motor vehicle accident.

The applicant's representatives withdrew from the record due to an inability to communicate with her.

The applicant failed to attend the pre-hearings, a motion, and the scheduled arbitration hearing.

As no evidence was adduced in support of the application, the arbitrator dismissed the application as abandoned and ordered the applicant to pay the insurer's expenses of the proceeding, fixed at $587.28.

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

After his representatives withdrew from the record, the applicant failed to attend the arbitration hearing.

As no evidence was adduced in support of the application, the arbitrator dismissed the application as abandoned.

The applicant was ordered to pay the insurer's arbitration expenses in the amount of $978.80.

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

The parties reached a settlement at a pre-hearing, and the Applicant cashed the settlement cheque but failed to execute the settlement documents.

The Applicant and his representative subsequently failed to attend a resumed pre-hearing or respond to communications from the Commission.

The Insurer requested that the arbitration be dismissed.

The Arbitrator found that the Applicant had abandoned the arbitration and dismissed the proceeding as frivolous, vexatious, and commenced in bad faith pursuant to Rule 68.1 of the Dispute Resolution Practice Code.

Following a decision on statutory accident benefits, both parties sought their expenses of the arbitration.

The applicant had achieved partial success on her claims for caregiver, housekeeping, and treatment benefits, while the insurer successfully defended the novel claim for dynamic motion imaging (DMX).

The arbitrator found that the novelty and importance of the DMX issue justified bringing the matter to a hearing, balancing out the fact that the applicant's recovery approximated the insurer's settlement offer.

Accordingly, the arbitrator ordered that each party bear their own expenses.