OFSCDRS 2008

The applicant sought statutory accident benefits, including income replacement benefits and the cost of an in-home assessment, following a motor vehicle accident.

The applicant failed to attend the arbitration hearing and was unrepresented.

The arbitrator dismissed the claims due to the applicant's failure to meet the burden of proof.

The insurer was awarded $500 in expenses.

The appellants appealed an arbitrator's decision dismissing their claims for income replacement benefits and a special award.

They brought a motion to stay the arbitrator's orders pending the appeal and requested that their appeals be combined.

The Director's Delegate combined the appeals as they arose from the same accident and involved the same parties and counsel.

However, the motion for a stay was dismissed because the arbitrator had not ordered the payment of any monies, meaning there was currently nothing to stay.

The Appellant insurer brought a motion to stay an arbitration order that awarded the Respondent non-earner benefits, pending its appeal of that order.

The Director's Delegate reviewed the criteria for granting a stay, noting that stays of arbitration orders are exceptional under the Insurance Act.

Considering the long history of the matter, the Appellant's failure to comply with the order before seeking a stay, the lack of alleged hardship to the Appellant, and questions regarding the official status of the unsworn hearing transcripts relied upon, the Delegate found no basis to exercise discretion to grant a stay.

The motion was dismissed.

The applicant sought her expenses for an arbitration proceeding after successfully claiming ongoing income replacement benefits.

The insurer disputed the number of hours billed by the applicant's lawyer, particularly the bulk billing of 23.6 hours for 118 pieces of correspondence.

The arbitrator allowed half of the bulk-billed hours due to a lack of supporting evidence, but found the remaining hours reasonable.

Certain disbursements for medical records not produced in the arbitration were also deducted.

The arbitrator ordered the insurer to pay $11,514.50 for the applicant's legal fees, disbursements, and GST.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, including rehabilitation benefits for university tuition, income replacement benefits (IRBs) beyond 104 weeks, attendant care benefits, and housekeeping services.

The arbitrator dismissed all of the applicant's claims, finding that her pursuit of a university degree was not a reasonable and necessary rehabilitation measure, and that medical evidence did not support her inability to engage in suitable employment.

Furthermore, the arbitrator ordered the applicant to repay $4,487.11 in overpaid IRBs, as she had failed to disclose her return to part-time work.

The insurer brought a motion for an order compelling the applicant to attend Insurer's Examinations with a psychiatrist, oncologist, and physiatrist under section 42 of the Statutory Accident Benefits Schedule.

The arbitrator dismissed the motion, finding no jurisdiction to order an insured to attend an examination.

Furthermore, the arbitrator held that the insurer's notice failed to provide sufficient particulars about the nature of the proposed examinations, depriving the applicant of the ability to give informed consent.

In a pre-hearing for a statutory accident benefits dispute, the applicant sought an order compelling the insurer to produce an affidavit of documents for its file subsequent to mediation.

The insurer sought an order compelling the applicant to disclose whether a tort claim had been initiated.

The arbitrator dismissed the applicant's request, finding no evidence to justify ordering an affidavit of documents and noting that documents created post-mediation are highly likely to be protected by litigation privilege.

The arbitrator granted the insurer's request, ordering the applicant to provide a written answer regarding the existence of a tort claim, as such information is relevant to the arbitration.

The representative of an insured appealed an arbitrator's decision ordering him to personally pay the insurer's fixed expenses of $1,566 for costs thrown away prior to the withdrawal of the insured's application for arbitration.

The Director's Delegate dismissed the appeal, finding no error in the arbitrator's conclusion that the representative caused expenses to be wasted by unreasonable delay under s. 282(11.2) of the Insurance Act by failing to withdraw the claim when it was apparent that the underlying dispute had been resolved.

The applicant's counsel brought a motion under Rule 10.3 of the Dispute Resolution Practice Code, asserting that the applicant lacked the capacity to instruct him and seeking the appointment of the Public Guardian and Trustee.

Counsel sought to exclude the insurer from the hearing to protect solicitor-client privilege and requested leave to appear on his own affidavit.

The arbitrator dismissed both requests, finding that the insurer had a direct interest in the capacity issue due to its limitation defence, and that the presence of medical evidence distinguished the case from precedents allowing counsel to rely on their own affidavit.

The arbitrator granted the insurer's request for an adjournment to obtain its own capacity assessment.

In a pre-hearing motion at the Financial Services Commission of Ontario, the insurer sought production of the applicant's 2002 income tax return.

The applicant argued the document was irrelevant because her claim for income replacement benefits was based on her earnings in the four weeks prior to the motor vehicle accident.

The arbitrator ordered the production of the tax return, finding it relevant to establishing the applicant's level of remuneration for the purpose of determining suitable employment under the post-104-week disability test.

Following a mixed success decision on statutory accident benefits, both the applicants and the insurer sought their expenses of the arbitration hearing.

The arbitrator considered the criteria under section 12(2) of O. Reg. 664, finding that the only relevant criterion was the degree of success.

Because both parties achieved mixed success and it was impossible to determine whether the hearing could have been avoided, the arbitrator ordered that each party bear their own expenses.

The insurer appealed an arbitrator's decision finding that the claimant was involved in a motor vehicle accident, arguing that the accident was staged and that the arbitrator failed to provide sufficient reasons for rejecting its expert and circumstantial evidence.

The Director's Delegate dismissed the appeal, holding that the arbitrator's reasons were adequate, that she properly assessed the claimant's credibility, and that her factual findings were entitled to deference.

The arbitrator was not required to engage in a detailed analysis of every piece of evidence, and there was no error of law in her preference for the claimant's direct evidence over the insurer's expert theories.

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

The insurer requested an examination under oath pursuant to section 33(1.1) of the Statutory Accident Benefits Schedule.

The applicant failed to attend the scheduled examination, arguing that notice was improperly sent to his counsel rather than to him personally, and that the insurer failed to reasonably accommodate his schedule.

The arbitrator found that notice to the applicant's solicitor was sufficient under section 68(2)(a) of the Schedule and that the applicant's counsel failed to respond to scheduling attempts.

Consequently, the insurer is not liable to pay benefits from the date of the missed examination until the applicant complies.

Following a successful claim for statutory accident benefits, the applicant sought his expenses for the arbitration hearing.

The insurer argued that each party should bear their own costs due to mixed results and that the claimed amount was excessive.

The arbitrator found the applicant was substantially successful and entitled to his reasonable expenses.

The arbitrator assessed the fees for the applicant's student-at-law and supervising lawyer, as well as disbursements including expert witness fees, awarding a total of $7,904.80 plus GST.

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

The parties attended mediation and agreed to settle the claim for $10,000.

The applicant signed a release and a Settlement Disclosure Notice, but later rescinded the settlement, arguing the insurer failed to comply with the settlement regulation.

The arbitrator found that the Settlement Disclosure Notice was defective because it was not signed by the insurer and incorrectly stated the maximum available benefit without explaining the calculation for a self-employed person.

As the insurer failed to comply with the mandatory requirements of section 9.1 of Ontario Regulation 664, the applicant was entitled to rescind the settlement.

The arbitrator concluded the claim for income replacement benefits had not been settled.

The solicitor for the deceased insured commenced an arbitration for accident benefits (death and funeral benefits) in the name of the deceased's estate.

The insurer brought a motion to dismiss the arbitration on the basis that the estate had no legal standing to claim such benefits, which are payable only to dependants personally.

The arbitrator dismissed the arbitration as a nullity and a frivolous and vexatious proceeding.

Finding that the solicitor commenced the proceeding on behalf of a non-existent principal and advanced a claim with no possibility of success, the arbitrator ordered the solicitor to personally pay the insurer's legal expenses pursuant to section 282(11.2) of the Insurance Act.

The appellant's appeal regarding income replacement benefits was previously dismissed.

The respondent sought its appeal expenses.

The Director of Arbitrations ordered the self-represented appellant to pay the respondent's appeal expenses fixed at $3,037.33, noting the respondent's complete success on appeal and an early offer to settle on a without-costs basis.

Following an arbitration where the applicant's claims for statutory accident benefits were denied and the insurer was partially successful on its claim for repayment, the insurer sought its expenses of the proceeding.

The arbitrator considered the criteria under the Expense Regulation, primarily the degree of success.

The insurer claimed $5,674.48 but the arbitrator reduced this amount, disallowing the cost of a court reporter and an unsubstantiated expert fee.

The arbitrator fixed the insurer's expenses at $2,000.00, inclusive of fees, disbursements, and GST, after applying a modest set-off because the insurer failed to attempt to resolve the expense issue prior to the hearing.

The parties sought a determination of legal expenses following an appeal and cross-appeal regarding statutory accident benefits.

The insurer's appeals were dismissed, and the insured's cross-appeals were also dismissed.

The Director's Delegate awarded the insured his legal expenses for the insurer's appeals, fixed at $7,514.52, but declined to award any costs for the cross-appeals, noting that the insurer was uniformly unsuccessful in its appeals and the insured did not seek costs for the cross-appeals.

The applicant was walking across a street when she heard a fire truck siren and saw the vehicle approaching.

Frightened, she quickened her pace to get out of the way and fell, sustaining serious injuries.

She applied for statutory accident benefits, which the insurer denied on the basis that she was not injured in an 'accident' as defined in section 2(1) of the Schedule.

On a preliminary issue hearing, the Arbitrator found that the use and operation of the fire truck was the dominant feature in the incident and the direct cause of the applicant's injuries.

The Arbitrator concluded that the applicant was injured as a result of an accident and is entitled to proceed with her claim for benefits.