OFSCDRS 2008

The applicant was injured in a motor vehicle accident and sought post-104 week income replacement benefits.

The insurer terminated benefits, arguing the applicant continued to operate his horse farm.

The arbitrator found that the applicant suffered from severe chronic pain and depression, rendering him completely unable to engage in any employment for which he was reasonably suited, including his pre-accident work as a truck driver and farmer.

The arbitrator awarded income replacement benefits at $400 per week, interest on overdue payments, and a $25,000 special award against the insurer for unreasonably terminating benefits without sufficient medical or vocational investigation.

The insurer brought a motion seeking an order to compel the applicant to produce tort materials or prepare an Affidavit of Documents of tort materials.

The arbitrator dismissed the motion, finding the request was overbroad, unparticularized, and brought too late.

Furthermore, the insurer failed to provide compelling reasons why the medical reports obtained pursuant to the Statutory Accident Benefits Schedule were insufficient, and ordering production of discovery transcripts from the tort action would unfairly distort the arbitration process.

Following the dismissal of the applicants' claims for statutory accident benefits, the insurer sought $33,500 in expenses.

The arbitrator found that while the insurer was completely successful in defending the claims, it had spent excessive time pursuing an unproven conspiracy theory regarding a fraud ring.

The arbitrator reduced the allowable preparation and hearing time, disallowing expenses for the days devoted entirely to the conspiracy theory.

The applicants were ordered to pay a total of $12,013.36 in expenses, apportioned between them based on their respective involvement in the hearing.

Following an arbitration hearing where the applicant was unsuccessful in claiming statutory accident benefits, the insurer sought its expenses of $13,330.90.

The arbitrator considered the criteria under the Expense Regulation, particularly whether a novel issue was raised.

Although the factual underpinnings of the novel issue were ultimately lacking, the arbitrator found that the applicant proceeded to arbitration primarily to resolve a novel issue regarding the calculation of income replacement benefits based on a full-time job and a job offer.

The arbitrator concluded that the proceeding was not frivolous or vexatious and declined to award expenses to the insurer.

The appellant insurer appealed an arbitrator's decision awarding the respondent income replacement and housekeeping benefits following a motor vehicle accident.

The insurer argued the arbitrator failed to apply the proper causation test and failed to provide adequate reasons, particularly regarding the respondent's pre-existing depression and medical history.

The Director's Delegate dismissed the appeal, finding the arbitrator correctly applied the material contribution test and properly treated the respondent as a 'thin skull' rather than a 'crumbling skull' case.

The Delegate held that the arbitrator's factual findings were supported by the evidence and her reasons were adequate.

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

He elected to opt out of workers' compensation benefits under the Workplace Safety and Insurance Act to pursue a tort action, which would allow him to claim statutory accident benefits.

The arbitrator found that the election was not made bona fides, as the appellant's primary intention was to claim accident benefits rather than pursue a tort action.

On appeal, the Director's Delegate upheld the arbitrator's decision, finding no error of law in the arbitrator's preference for the appellant's subjective testimony over objective factors, such as the eventual settlement of the tort claim.

The appeal was dismissed.

The parties sought their respective expenses following an arbitration decision that dismissed the applicant's claim for statutory accident benefits.

The insurer argued it was wholly successful and entitled to expenses.

The applicant argued the insurer's representative unnecessarily prolonged and obstructed the hearing.

The arbitrator found that the insurer's representative's conduct, including unnecessary preliminary objections and repetitive cross-examinations, unnecessarily prolonged a simple one-day hearing into three days.

Consequently, the insurer was denied its expenses.

The applicant was also denied his expenses because his underlying claim failed due to his lack of credibility and significant contradictions with his medical records.

Each party was ordered to bear its own expenses.

The applicants, a husband and wife, sought statutory accident benefits for caregiving, housekeeping, and medical treatment following a motor vehicle accident.

The insurer denied the claims.

At arbitration, the applicants argued they were unable to perform their pre-accident caregiving and housekeeping duties and required ongoing medical treatment.

The arbitrator found the applicants' evidence to be contradictory and implausible, noting they both continued to work and even studied for new careers while claiming to be completely disabled from household tasks.

The arbitrator also drew an adverse inference from their failure to call their alleged service provider as a witness.

The claims for caregiving, housekeeping, medical benefits, and interest were dismissed.

The appellant sought a stay of an arbitrator's order requiring her to repay $4,487.11 in income replacement benefits to the insurer, pending her appeal of the arbitrator's denial of other benefits.

The Director's Delegate applied the Scavuzzo criteria and found that the appellant was not actually appealing the repayment order itself, which arose from her failure to disclose post-accident employment.

The Delegate concluded that the appellant failed to establish a compelling case or exceptional circumstances to justify a stay, noting that her claims of financial hardship were insufficiently detailed to overcome the deference owed to the arbitrator's findings.

The insurer appealed an arbitrator's decision awarding the insured non-earner benefits, prescription costs, and the cost of a medical report following a motor vehicle accident.

The insurer argued the arbitrator erred by relying on the evidence of the insured's husband, who had previously assisted the insured in providing inaccurate histories to medical assessors.

The Director's Delegate dismissed the appeal, finding that the arbitrator's credibility assessments and weighing of the evidence were fact-driven determinations entitled to deference.

The arbitrator had a sufficient evidentiary basis, including evidence from the treating psychologist and the insurer's own examining psychiatrist, to conclude that the accident significantly exacerbated the insured's pre-existing depression and prevented her from engaging in substantially all of her pre-accident activities.

The applicant sought statutory accident benefits following the death of her daughter in a motor vehicle accident.

The insurer disputed her entitlement to ongoing income replacement benefits (IRBs), alleging she failed to submit a disability certificate, a treatment plan, and failed to attend scheduled examinations.

The arbitrator found the applicant was not precluded from receiving IRBs, as her failure to attend examinations and pursue rehabilitation was reasonably explained by her severe mental illness related to the accident.

The arbitrator also determined the proper calculation of her pre-accident income, ruling that her self-employment benefits should be treated as Employment Insurance benefits.

Finally, the arbitrator granted a special award against the insurer, finding it acted unreasonably in calculating the quantum of her IRBs by relying on an accounting approach that contradicted established jurisprudence.

The applicants were injured in a motor vehicle accident and applied for statutory accident benefits.

The insurer took the position that the applicants were in the course of their employment and therefore only entitled to workers' compensation benefits.

The applicants eventually withdrew their applications for arbitration.

The insurer sought its expenses under section 282(11) of the Insurance Act, arguing the proceedings were frivolous and vexatious.

The arbitrator dismissed the insurer's claim for expenses, finding that the insurer failed to provide the applicants with complete and correct information about the interaction between the Statutory Accident Benefits Schedule and the Workplace Safety and Insurance Act, 1997, and the proper dispute resolution procedures.

The applicant sought statutory accident benefits after being assaulted by a co-worker who dragged him out of his truck and threw him against it.

The insurer denied benefits on the basis that the incident was not an 'accident' under section 2 of the Statutory Accident Benefits Schedule.

The arbitrator agreed, finding that the applicant's injuries were caused by the assault, not by the use or operation of the automobile.

As there was no accident, the insurer was not required to pay benefits pending dispute resolution under subsection 59(5).

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

The insurer issued a notice of stoppage, prompting the appellant to request a designated assessment centre (DAC) evaluation.

The insurer was required to continue paying benefits pending the DAC report.

After a negative DAC report, the insurer issued a final notice stopping benefits.

The arbitrator initially ruled that the two-year limitation period began with the first notice of stoppage.

On appeal, the Director's Delegate held that the limitation period did not begin to run until the insurer provided notice after the negative DAC report, as the insurer was statutorily required to continue payments in the interim.

The appeal was allowed, and the appellant was permitted to proceed to arbitration.

The applicant sought to vary an arbitrator's decision regarding income replacement benefits based on new accounting evidence, while the respondent insurer filed a notice of appeal.

The parties disputed whether the original arbitrator or a new appellate officer should hear the application for variation/revocation.

The Director's Delegate held that, given the pending appeal and the complexity of the accounting evidence, there was no advantage to having the original arbitrator hear the variation application.

The Delegate ordered that the application for variation/revocation be heard by the same appellate officer hearing the appeal, and stayed both proceedings pending the release of the arbitrator's decision on the quantum of a special award.

The appellant insurer appealed an arbitrator's decision finding that the respondent was involved in an 'accident' under the Statutory Accident Benefits Schedule.

The respondent tripped and fell on a raised hump of asphalt immediately after disembarking from a bus that had stopped on the roadway instead of the curb.

The Director's Delegate dismissed the appeal, upholding the arbitrator's finding that the bus created or added to the risk, and the disembarkation was not yet complete, making the use or operation of the bus a direct cause of the injuries.

The insurer appealed an arbitrator's decision granting a $50,000 special award to the respondent for unreasonably withholding accident benefits following the death of a pedestrian.

The insurer argued the arbitrator erred in law by imposing the award and in calculating its quantum, contending the evidence of an 'accident' was equivocal.

The Director's Delegate dismissed the appeal, finding the special award was justified not by the ultimate evidence, but by the insurer's egregious adjusting practices, including failing to investigate, ignoring evidence, and allowing tort considerations to influence the first-party claim.

The quantum of the award was upheld as rationally related to the misconduct and necessary for deterrence.

The appellant, a legal representative, appealed an arbitrator's order holding him personally liable for the insurer's legal expenses due to his client's non-attendance at pre-hearings.

The representative sought to withdraw as counsel of record due to a conflict of interest and a breakdown in the solicitor-client relationship.

The Director's Delegate permitted the withdrawal.

On the issue of standing, the Delegate held that a representative against whom an expense order is made has a substantial and direct interest in the outcome, entitling them to party status under section 5 of the Statutory Powers Procedure Act for the purpose of appealing the expense order.

The appellant's appeal regarding his entitlement to statutory accident benefits was previously dismissed.

The respondent insurer subsequently sought its appeal expenses.

The Director of Arbitrations found that the respondent was entirely successful on the appeal and that the issues raised were not novel, as the appellant had challenged the application of well-settled law to an unusual set of facts.

The Director awarded the respondent its appeal expenses, reducing the claimed amount to align with Legal Aid rates for senior counsel and to remove duplication for a second counsel's attendance, fixing the total at $4,318.79.

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

The parties entered into a settlement agreement, which the appellant subsequently attempted to rescind, then reconfirmed, and then attempted to rescind again after the two-day cooling off period had expired.

The arbitrator found that the settlement was binding because the appellant failed to rescind it within the statutory cooling off period.

On appeal, the Director's Delegate upheld the arbitrator's decision, finding no error in the conclusion that the settlement was binding and that there was no undue influence or coercion.