OFSCDRS 2008

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

After the insurer terminated her weekly income replacement benefits, the applicant applied for arbitration.

However, the applicant subsequently failed to attend a resumed pre-hearing, failed to provide requested productions, and failed to attend the arbitration hearing.

The insurer brought a motion to dismiss the application for arbitration due to abandonment and delay.

The arbitrator found that the applicant had abandoned her case and that the application was vexatious.

The application for arbitration was dismissed, and the applicant was ordered to pay $3,000 in expenses to the insurer.

The insurer brought a motion for disclosure of information and documents in a statutory accident benefits dispute.

The insurer sought the addresses of the applicant's attendant care and housekeeping service providers, Defence Medical Reports from a related tort action, and details of the tort settlement.

The arbitrator ordered the applicant to provide the names and addresses of the service providers, finding it necessary for the insurer to prepare its defence.

However, the arbitrator denied the requests for the Defence Medical Reports and tort settlement details, as the insurer failed to provide sufficient evidence to justify production and the settlement details were not relevant to the issues in dispute.

The insurer brought a motion for the production of a Crown Brief and police records relating to drug trafficking charges against the applicant, arguing the records were relevant to the applicant's entitlement to income replacement benefits.

The applicant's counsel did not oppose the motion and subsequently sought to be removed from the record due to a breakdown in the solicitor-client relationship.

The arbitrator granted the unopposed production motion and ordered the applicant's counsel removed from the record.

The applicant, injured in a motor vehicle accident, sought income replacement benefits and requested that the insurer disclose whether it had conducted surveillance and, if so, produce it 90 days before the hearing.

The insurer refused to disclose whether surveillance existed and offered to produce any relied-upon surveillance 60 days prior.

The arbitrator ordered the insurer to promptly disclose whether surveillance had been conducted and, if it intended to rely on any surveillance, to produce it 90 days before the hearing to allow the applicant sufficient time to respond with medical evidence without incurring undue financial burden under the Dispute Resolution Practice Code.

The insurer requested a preliminary issues hearing to determine if the applicant was precluded from arbitrating her claims for treatment expenses and a higher income replacement benefit (IRB) due to the expiry of the two-year limitation period under s. 281.1(1) of the Insurance Act.

The applicant withdrew her claim for treatment expenses.

For the IRB claim, the arbitrator found that the insurer's provision of an accounting report and payment of a lump sum did not constitute a clear and unequivocal refusal of a higher benefit level.

Therefore, the limitation period was not triggered, and the applicant was permitted to proceed to arbitration on the quantum of her IRB.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits for medical treatments and housekeeping.

The insurer denied the claims.

The arbitrator found that the applicant suffered injuries outside the WAD II PAF Guideline, specifically radiculopathy, and awarded medical benefits for chiropractic, physiotherapy, and acupuncture treatments.

The arbitrator also awarded partial housekeeping benefits for the initial four weeks post-accident, finding the applicant's evidence of ongoing need unreliable.

The third treatment plan was denied as not reasonable or necessary.

Following the dismissal of the applicant's accident benefits claims, the arbitrator considered the issue of expenses.

The applicant objected to the determination of expenses, arguing the hearing was not completed and noting her appeal of the merits decision.

The arbitrator rejected this argument, finding authority under s. 282(11) of the Insurance Act.

As the applicant was entirely unsuccessful, raised no novel issues, and unnecessarily prolonged the proceedings, the insurer was awarded its expenses.

The arbitrator allowed the insurer's legal fees and most disbursements, but excluded the court reporter fee as not reasonably necessary, resulting in a total expense award of $9,457.84 payable by the applicant to the insurer.

The applicant brought a motion requesting that the arbitrator recuse himself on the basis of a reasonable apprehension of bias.

The applicant argued that a prior letter from the arbitrator, which recorded a procedural agreement between the parties, lacked an evidentiary foundation and therefore indicated bias.

The arbitrator dismissed the motion, finding that the letter itself was the record of the agreement reached during a telephone conference, and an informed person would not conclude that the arbitrator would not decide the issues fairly.

The applicant sought a preliminary determination on whether her accident benefits claims, currently pending in a court action, would be statute-barred if transferred to arbitration.

The arbitrator dismissed the motion, finding that the tribunal lacked jurisdiction to rule on the insurer's time-limitation defence until the applicant actually transferred the claims to the arbitration proceeding.

The applicant was granted 30 days to make the transfer.

The applicant sought to withdraw her arbitration proceeding regarding statutory accident benefits following a motor vehicle accident.

The insurer consented to the withdrawal but sought its expenses and an order requiring the applicant to pay the $3,000 arbitration fee if she recommenced the proceeding.

The arbitrator permitted the withdrawal and ordered the applicant to pay $1,200 in expenses, representing 50% of the insurer's allowable expenses, as well as $3,000 to the insurer only in the event she commences a new arbitration in respect of the same issues.

The appellant, who was twelve years old at the time of a motor vehicle accident, applied for an Educational Disability Benefit (EDB) and a Loss of Earning Capacity Benefit (LECB) under the Bill 164 Schedule.

The Director's Delegate confirmed the arbitrator's decision that when the appellant turned sixteen, no EDB was payable unless she suffered a complete inability to carry on a normal life.

However, the Delegate held that the test for an LECB offer when she turned sixteen was either a partial or complete inability to carry on a normal life, and remitted the matter to arbitration to determine if she met this test.

The appellant appealed an arbitrator's decision denying her claims for payment of three medical assessments and ordering her to pay a cancellation fee for failing to attend a Designated Assessment Centre (DAC) appointment.

The Director's Delegate found that the insurer failed to comply with the mandatory requirement to refer the in-home assessment to a DAC, and therefore was deemed to have accepted it as reasonably required.

The appeal was allowed in part, ordering the insurer to pay $869.50 for the in-home assessment.

The arbitrator's decision regarding the other assessments and the cancellation fee was upheld.

The applicant was injured in two separate motor vehicle accidents and filed two separate arbitration applications for statutory accident benefits against the same insurer.

At a pre-hearing discussion, the arbitrator considered whether the applications should be combined under Rule 30 of the Dispute Resolution Practice Code.

Finding that the parties and counsel were identical, and that there were common questions of fact and law regarding the duration and cause of the applicant's disability, the arbitrator ordered the applications combined to ensure the most just, quickest, and least expensive resolution and to avoid inconsistent findings.

The insurer brought a motion to stay the arbitration proceeding until the applicant attended a section 42 assessment with a physiatrist.

The applicant had previously attended multiple insurer examinations and the insurer had consistently denied his claim for non-earner benefits.

The arbitrator found that the insurer's request, made almost a year after learning of the applicant's physiatrist treatment and only five months before the hearing, was primarily to bolster its case rather than adjust the claim.

The motion was denied as the proposed assessment was not reasonable and necessary at this time.

The applicant sought statutory accident benefits for caregiving, housekeeping, and medical expenses following a motor vehicle accident.

The arbitrator dismissed the claims, finding the applicant's evidence regarding his inability to perform housekeeping and caregiving tasks lacked credibility, particularly given his continued full-time employment as a transport truck driver and surveillance evidence showing him performing activities he claimed he could not do.

The arbitrator preferred the insurer's medical expert, concluding the applicant's injuries did not warrant treatment beyond the Pre-Approved Framework.

The Applicant was injured in a motor vehicle accident and sought statutory accident benefits, including income replacement benefits (IRBs), medical and rehabilitation benefits, and the cost of assessments.

The arbitrator dismissed the claim for IRBs, finding the Applicant's evidence regarding his pre-accident employment to be unreliable and contradictory.

The claims for medication and assessment costs were also dismissed as they were either unrelated to the accident or not reasonable and necessary.

However, the arbitrator ordered the Insurer to pay $7,028.58 for physical therapy services because the Insurer failed to provide timely notice of its refusal to pay for the treatment plans as required by section 38 of the Statutory Accident Benefits Schedule.

The Insurer brought a motion for the production of various documents, including the Applicant's Ontario Scholastic Record and a medical report obtained in a related tort matter.

The Arbitrator dismissed the motion, finding that the request for the scholastic record was not relevant to the narrow issue of attendant care benefits.

Furthermore, the medical report was subject to the implied undertaking rule, and the Arbitrator lacked jurisdiction to order its production without a waiver from the court having jurisdiction over the tort action.

The motion was deemed premature, and the Applicant was awarded expenses.

The appellant was injured in a 1993 motor vehicle accident and sought rehabilitation and attendant care benefits.

The arbitrator dismissed the claims, finding the appellant failed to establish that the accident materially contributed to her physical, cognitive, and psychological conditions, largely due to a lack of pre-accident medical records and reliable evidence.

On appeal, the appellant argued the arbitrator erred by admitting insurer medical reports without cross-examination and by misapplying the burden of proof.

The Director's Delegate dismissed the appeal, holding that the failure to cross-examine does not compel acceptance of an expert's report and that the burden of proving causation remained on the appellant.

The applicant was injured in a motor vehicle accident and previously found entitled to income replacement benefits.

In this continuation of the arbitration, the arbitrator calculated the benefits owing at $3,082.60.

The insurer sought expenses against the applicant for a prior adjournment caused by the applicant's former counsel failing to summons a key witness.

The arbitrator denied the insurer's request for adjournment expenses, finding that the insurer engaged in sharp practice by unilaterally dropping its claim against the former counsel without notice, thereby prejudicing the applicant's ability to seek indemnity.

Both parties were ordered to bear their own expenses for the arbitration.

The insurer requested production of the draft reports and foundation material of the applicant's accounting and occupational therapy experts.

The applicant refused, claiming litigation privilege and arguing that the pre-hearing stage was too early to compel disclosure.

The arbitrator held that by voluntarily disclosing the experts' reports in his pre-hearing brief, the applicant impliedly waived litigation privilege over the foundation material (notes, draft reports, technical data, and test results) relied upon by the experts.

The applicant was ordered to produce this material, but was not required to produce counsel's instruction letters to the experts, as they were deemed irrelevant.