OFSCDRS 2008

The applicant sought statutory accident benefits after sustaining burn injuries while repairing his wife's van.

The insurer denied the claim on the basis that the incident was not an 'accident' under the Schedule.

The arbitrator found that repairing a vehicle in a garage does not constitute the use or operation of an automobile.

Furthermore, the use of an air compressor to repair the vehicle was an intervening act that broke the chain of causation.

The application for benefits was dismissed.

The applicants, an elderly couple who acted as foster parents, were injured in two motor vehicle accidents.

They applied for statutory accident benefits, including rehabilitation benefits for child care costs related to their foster children, and housekeeping benefits.

The insurer denied the claims, arguing that child care did not qualify as a rehabilitation expense and relying on surveillance and medical reports to dispute the housekeeping claims.

The arbitrator found that the child care expenses were reasonable and necessary to rehabilitate the applicants and allow them to reintegrate into their societal roles as foster parents.

The arbitrator also awarded the housekeeping benefits and ordered the insurer to pay a special award of $5,000 in total, finding that the insurer had unreasonably withheld payments, failed to communicate adequately, and treated the vulnerable applicants in a harsh and high-handed manner.

The appellant was injured when the lower arm of a boom attached to a commercial vehicle failed while he was trimming trees.

The insurer denied statutory accident benefits, arguing the vehicle was being used as a tree-trimming device, not an automobile.

The Director's Delegate allowed the appeal, finding that the attached boom and bucket were integrated into the use of the vehicle.

Because the insurer did not use an OPCF-30 endorsement to exclude coverage for attached machinery, the injury arose from the use or operation of an automobile, meeting the definition of an 'accident' under the Schedule.

The applicant's representative, Mazin Rooz Mazin, brought a motion to be removed from the record due to a breakdown in the solicitor-client relationship, as the applicant failed to attend a pre-hearing conference and could not be reached for instructions.

The insurer did not oppose the removal but sought an order requiring the representative to produce an affidavit detailing the breakdown, to determine if costs should be sought against the representative for the lost pre-hearing day.

The arbitrator granted the motion to be removed from the record but declined to order the production of the affidavit, finding it intrusive and potentially involving privileged information without a substantial basis.

The arbitrator awarded the insurer $100 in expenses for the lost pre-hearing day against the applicant, noting the insurer was represented by a paralegal.

Following the dismissal of the applicant's claim for statutory accident benefits, the insurer sought its expenses of the arbitration.

The insurer requested the expense hearing 77 days after the decision, missing the 30-day time limit under Rule 79.1 of the Dispute Resolution Practice Code.

The arbitrator exercised discretion to set aside the time limit, noting the breach was technical and caused by ongoing settlement discussions, with no prejudice to the applicant.

Applying the criteria in O. Reg. 664, the arbitrator found the insurer entitled to expenses due to its complete success, better settlement offers, and the applicant's conduct prolonging the proceeding.

The insurer's claimed costs of $25,667.73 were significantly reduced to $7,616.04, as the claimed hours were excessive, rates exceeded Legal Aid limits, and unrecoverable disbursements were included.

The insurer was denied the costs of the assessment hearing due to submitting an inflated bill.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits, which were denied by the insurer.

The parties resolved all outstanding issues prior to the arbitration hearing, leaving only the issue of expenses.

The applicant submitted a Bill of Costs for $8,544.13.

The arbitrator reviewed the claimed fees and disbursements, noting the lack of supporting dockets and the uncomplicated nature of the case.

The arbitrator reduced the claimed fees but allowed the disbursements in full, awarding the applicant a total of $6,628.75 in expenses.

The applicant was injured in a motor vehicle accident and sought interim interim attendant care benefits after fracturing his ankle while awaiting an adjourned interim benefits motion.

The arbitrator found that the applicant was in immediate need of attendant care to prevent further injury and awarded $2,500 per month for two months, pending the full interim motion hearing.

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

In a pre-hearing dispute, the applicant requested that the insurer produce and pay for the clinical notes and records of doctors who performed medical examinations on the insurer's behalf.

The insurer agreed to produce the records but objected to paying for them.

The arbitrator ordered the insurer to pay for the production of the records, noting the consumer protection perspective of the Schedule, subject to the insurer's right to claim its expenses at the conclusion of the arbitration hearing.

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

The insurer terminated caregiver benefits, and the applicant applied for arbitration.

The insurer raised a preliminary issue that the application was filed outside the two-year limitation period under section 51(1) of the Schedule.

The applicant conceded the issue at the hearing.

The arbitrator found the applicant was precluded from proceeding and awarded $500 in expenses to the insurer.

In a preliminary issue hearing regarding a dispute over statutory accident benefits, the insurer challenged the conclusions of two Designated Assessment Centre (DAC) assessors.

The issue was whether a DAC assessor meeting privately with counsel for either party before testifying would affect the admissibility or weight of their opinion.

The Arbitrator held that such a meeting, by itself, does not affect the admissibility or weight of the opinion, as litigation privilege protects a party's right to seek such meetings.

However, if a party obtains previously-undisclosed information or provides new information to the DAC assessor, they must comply with disclosure rules under the Dispute Resolution Practice Code.

Following a successful arbitration where the insured's claims for statutory accident benefits were dismissed, the insurer sought its arbitration expenses.

The arbitrator found that the insurer was entirely successful and that the proceeding did not raise novel issues.

Applying the general rule of thumb of a 2:1 ratio for preparation time to hearing time, the arbitrator awarded the insurer 30 hours of counsel's time.

The insurer's claim for disbursements was denied due to a lack of receipts.

The insured was ordered to pay the insurer $2,908.71 in arbitration expenses.

The Applicant sought expenses following a preliminary issue hearing where it was determined she was injured in an 'accident' under the Statutory Accident Benefits Schedule.

The Insurer did not contest the disbursements but argued the claimed legal hours were excessive.

The Arbitrator agreed with the Insurer's submission of 18 hours, which the Applicant did not dispute, and awarded $1,396.08 in legal fees and $252.04 in disbursements.

The applicant claimed statutory accident benefits following a motor vehicle accident and applied for arbitration after mediation failed.

Following the commencement of the arbitration, the applicant failed to attend scheduled pre-hearings or participate in the process, leading her representative to withdraw.

The insurer requested an order dismissing the arbitration pursuant to Rule 68 of the Dispute Resolution Practice Code.

The arbitrator found that the arbitration had become frivolous due to the applicant's failure to participate in any meaningful way and dismissed the proceeding.

No expenses were awarded.

Following the dismissal of the insurer's appeal, the parties disputed the quantum of appeal expenses payable to the insured.

The insurer challenged the claimed hourly rate of $150 and the total hours docketed by the insured's counsel.

The Director's Delegate found the $150 hourly rate justified given counsel's experience and the relative complexity of the issues raised by the insurer on appeal.

Rejecting a strict line-by-line assessment or a fixed ratio of preparation to hearing time, the Delegate assessed a global figure of $5,000 for legal fees, disbursements, and GST.

The applicant sought statutory accident benefits, claiming she was injured as a passenger in a rear-end motor vehicle collision.

The insurer denied the claim on the basis that the applicant's involvement in the accident was not credible.

Relying on expert accident reconstruction evidence that demonstrated the damage to the vehicles was entirely inconsistent with the reported collision, the arbitrator found the applicant's version of events lacked credibility.

The arbitrator concluded the applicant failed to prove she was involved in an 'accident' under section 2(1) of the Schedule and dismissed the arbitration.

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

The insurer denied coverage and initiated a priorities dispute, arguing another insurer was responsible.

The insurer sought a preliminary determination at the Financial Services Commission of Ontario (FSCO) on whether the applicant was an 'insured' under the Schedule.

The arbitrator held that distinguishing between coverage disputes and priority disputes is artificial and contrary to the legislative scheme.

The issue of whether the applicant is an insured must be determined by a private arbitrator as part of the priorities dispute under O. Reg. 283/95, not by a FSCO arbitrator.

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

Following a preliminary issue hearing where the applicant was found not entitled to elect a non-earner benefit, the insurer sought its expenses.

The arbitrator considered the criteria under section 12 of Regulation 664, noting the insurer was entirely successful but the applicant's conduct did not unduly delay the proceeding.

The arbitrator ordered the applicant to pay $1,000 in expenses to the insurer.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them.

An arbitrator initially found the termination improper under section 37 of the SABS and ordered interim benefits paid until proper notice was given.

After the insurer complied, the arbitrator found the applicant did not meet the substantive test for disability and dismissed her claim for ongoing benefits, but also ruled she was not required to repay the interim benefits paid prior to the proper termination notice.

Both parties appealed.

The Director's Delegate dismissed both appeals, finding the arbitrator was not functus officio after the interim order, did not err in rejecting the applicant's medical evidence, and correctly concluded that requiring repayment of benefits paid before a proper termination notice would render the stoppage provisions meaningless.

The applicant was injured in a motor vehicle accident in 2004 and sought statutory accident benefits, including income replacement, housekeeping, and rehabilitation benefits for retraining as a massage therapist.

The insurer denied the claims, arguing the applicant's impairments fell within the Pre-Approved Framework (PAF) Guidelines and that her retraining was not reasonable and necessary.

The arbitrator found that the applicant had significant pre-existing chronic pain from prior accidents and that her decision to retrain was for personal insight rather than vocational rehabilitation.

The arbitrator concluded the applicant did not meet the burden of proving entitlement to further benefits beyond the PAF maximums.

All claims were dismissed.

The applicant was involved in three motor vehicle accidents in 2001 and sought income replacement benefits beyond October 6, 2002, claiming he was unable to return to his pre-accident job due to chronic pain and psychological problems.

The insurer terminated benefits based on multiple disability assessments concluding he was capable of working.

The arbitrator found that while the accidents contributed to his complaints, the applicant failed to prove he suffered a substantial inability to perform the essential tasks of his pre-accident employment.

The arbitrator preferred the evidence of the disability assessors over the applicant's treating physicians and experts, noting weaknesses in the latter's opinions and the fact that the applicant had successfully held other jobs post-accident.

The application for ongoing benefits and a special award was dismissed.