OFSCDRS 2009

The insurer appealed a pre-hearing arbitrator's order requiring it to produce its first-party adjusting file up to the date of the application for mediation, including reserve information.

The Director's Delegate allowed the appeal in part, finding that reserve information is generally irrelevant to the adjusting of a file and is protected by a zone of privacy, and therefore need not be produced.

However, the Director's Delegate upheld the order requiring production of the file up to the date of the application for mediation, as the insurer failed to establish that the dominant purpose of the documents created before that date was litigation.

The appellant insurer appealed an arbitrator's order requiring it to produce its complete adjusting notes, including reserves, to the date the respondent filed for mediation.

The Director's Delegate allowed the appeal and rescinded the order to produce reserves.

The Delegate held that reserve information is generally irrelevant to an insurer's conduct in assessing a claim and is protected by a zone of privacy.

Furthermore, the respondent had not even requested the production of reserves.

The order was varied to exclude reserves from the production of the adjusting records.

The insurer appealed an arbitrator's interim order which found that the capital cost allowance (CCA) for the respondent's taxi should not be taken into account when calculating his income replacement benefits (IRBs).

The Director's Delegate allowed the appeal, finding that the arbitrator erred in law.

Under section 62(1)(a) of the Statutory Accident Benefits Schedule, expenses eligible for the CCA are excluded from the calculation of income, but the CCA itself is not an expense eligible for the CCA.

Therefore, the CCA must be taken into account in calculating the respondent's IRBs.

The applicant brought a motion for interim benefits pending the determination of her entitlement and that of her husband's estate to statutory accident benefits.

The insurer opposed, arguing prejudice if the applicant were required to repay the benefits.

The arbitrator found that the applicant demonstrated a prima facie case, need, and urgency, noting the family's precarious financial situation and the previous preliminary finding that the impairments were caused by the accident.

The arbitrator ordered the insurer to pay $30,000 in interim benefits.

The insurer appealed an arbitrator's decision allowing the insured to proceed to arbitration for income replacement benefits despite missing the two-year limitation period.

The Director's Delegate upheld the arbitrator's finding that the insurer's initial refusal of benefits was invalid because it failed to provide the insured with the required information to make an informed election between caregiver and income replacement benefits.

The insured also had a reasonable explanation for her delay in providing complete employment information.

The appeal was dismissed.

The applicant was struck by a motor vehicle and claimed statutory accident benefits, including income replacement benefits (IRBs) and housekeeping benefits.

The insurer terminated IRBs and housekeeping benefits, leading to arbitration.

The arbitrator found that while the applicant's complaints of pain were likely exaggerated and lacked objective medical evidence after January 2007, he was substantially disabled from performing his pre-accident employment until his shoulder bursitis healed.

The arbitrator awarded IRBs for a closed period but dismissed the claims for ongoing IRBs, housekeeping benefits, and the cost of a redundant functional abilities evaluation.

Each party was ordered to bear their own expenses.

The applicant sought expenses following a successful arbitration for statutory accident benefits.

The insurer disputed the hourly rates claimed for the applicant's counsel, law clerks, and a non-lawyer legal researcher.

The arbitrator awarded an enhanced rate of $150 per hour for counsel, finding it justified by access to justice considerations and counsel's efficient presentation.

The arbitrator also awarded an enhanced rate of $70 per hour for the legal researcher due to her particular expertise.

However, the arbitrator restricted the rate for law clerks to the Legal Aid rate of $23 per hour, as no evidence was presented to justify an enhanced rate.

Total expenses of $16,669.05 were awarded to the applicant.

The applicant was injured in a motor vehicle accident and received statutory accident benefits from his insurer, Coachman, until they were terminated.

He also sued the at-fault driver and settled the tort claim with the tortfeasor's insurer, Nordic.

As part of the settlement, a court order assigned the applicant's accident benefits claim to Nordic.

Nordic then pursued the accident benefits arbitration against Coachman in the applicant's name.

Coachman argued the assignment was void under section 65 of the Statutory Accident Benefits Schedule.

The arbitrator held that the court order approving the assignment fell within the exception in section 65(2)(a) for assignments under section 267.8 of the Insurance Act, and therefore Nordic was not precluded from proceeding with the arbitration.

The applicant applied for arbitration regarding statutory accident benefits following a motor vehicle accident.

A preliminary issue hearing was directed to determine whether the applicant possessed the mental capacity to proceed in the dispute resolution process, given his acquired brain injury and difficulties organizing his thoughts.

The arbitrator found that the applicant was presumed to have capacity and that there was insufficient evidence to rebut this presumption.

The applicant demonstrated an understanding of the process, the relief sought, and the possible outcomes.

The appellant sought to appeal a preliminary order that stayed his arbitration for statutory accident benefits until he attended an examination under oath.

The arbitrator had found that the appellant's failure to attend the examination without reasonable explanation was an abuse of process, justifying a stay under the Statutory Powers Procedure Act.

The Director's Delegate accepted the preliminary appeal, noting that the remedy of a stay for non-attendance at an examination under oath was novel and raised important questions about the limits of an arbitrator's power to fashion remedies not explicitly provided in the Schedule.

The appellant's request to stay the arbitrator's scheduling timeline was denied.

The appellant insurer sought to appeal a preliminary decision of an arbitrator which held that the respondent insured was not precluded from proceeding to arbitration by the limitation period.

The arbitrator had found that the 90-day extension under s. 281.1(2)(b) of the Insurance Act commenced when the mediator's report was received, not when it was dated.

The Director's Delegate declined to reject the appeal under Rule 50.2 of the Dispute Resolution Practice Code, finding that clarification of the law on this limitation issue was important given inconsistent case law.

The appeal was allowed to proceed and timelines for written submissions were set.

The applicant sought a determination from the Financial Services Commission of Ontario that she sustained a catastrophic impairment in a motor vehicle accident.

However, she was concurrently advancing claims for statutory accident benefits in a Superior Court action.

The arbitrator declined to decide the sole issue of catastrophic impairment and stayed the arbitration application, finding that the issue was too closely intertwined with the entitlement issues before the court.

Proceeding with the arbitration would risk a multiplicity of proceedings and inconsistent findings.

The applicant was injured in multiple motor vehicle accidents, most notably in September 1996.

She claimed the cost of psychological treatment, which the insurer denied, arguing the need for treatment arose from subsequent accidents or life events.

The arbitrator found that the applicant's need for psychological treatment largely stemmed from the September 1996 accident and that the treatment was reasonable and necessary.

The arbitrator also found that the insurer unreasonably withheld and delayed payment of the benefits, failing to comply with its obligation to pay pending resolution of the dispute and failing to arrange a timely assessment.

The applicant was awarded the cost of the treatment, interest, and a special award of $5,000.

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

The parties settled the substantive issues, with the insurer agreeing to pay $5,350 for income replacement, attendant care, and housekeeping benefits.

The only remaining issue was entitlement to the expenses of the arbitration proceeding.

The arbitrator considered the criteria under section 12 of Ontario Regulation 664 and found that success was mixed and both parties could have avoided the proceeding by acting reasonably from the outset.

The arbitrator ordered that each party bear their own expenses.

The appellant insurer appealed an arbitrator's decision awarding interest on dependant death benefits to the respondents.

The parties agreed that the arbitrator erred in law by finding the respondents directly dependent on the deceased, rather than dependent on the deceased's spouse.

The Director's Delegate rescinded the arbitrator's orders regarding the respondents' entitlement to interest and a special award.

The issue of the respondents' entitlement to interest was remitted to arbitration for a new hearing to determine whether the respondents' own actions prevented the insurer from assessing their entitlement, which would trigger an exception to the mandatory interest provision.

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

After commencing arbitration, the applicant failed to attend multiple pre-hearings and could not be located by his counsel, who was subsequently permitted to withdraw.

The arbitrator issued a notice of intention to dismiss the application as frivolous and vexatious under Rule 68 of the Dispute Resolution Practice Code.

Receiving no response, the arbitrator dismissed the application, finding it had been abandoned.

The insurer brought a motion for the production of Children's Aid Society (CAS) files relating to the minor applicant and her two sisters.

The applicant sought attendant care benefits following a motor vehicle accident.

The arbitrator found the CAS files were arguably relevant to determining whether the applicant's attendant care needs arose from the accident or pre-existed it, and to understanding the overlapping care requirements of the siblings who lived together.

The motion was granted, subject to an order restricting the use and dissemination of the files to protect the minors' privacy.

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

The insurer argued the applicant was unemployed at the time of the accident and exaggerated his symptoms.

The arbitrator found the applicant was employed through a temporary placement agency at the time of the accident and that his pre-accident health issues did not prevent him from working.

Relying on objective medical evidence of a torn shoulder tendon, the arbitrator rejected the insurer's expert opinions that the applicant was magnifying his symptoms.

The arbitrator concluded the applicant was substantially unable to perform the essential tasks of his employment and awarded IRBs up to the date he reported limitations from unrelated health conditions.

The insurer brought a motion to determine whether insurer's examinations under section 42 of the Statutory Accident Benefits Schedule were reasonably required to assess whether the applicant met the post-104 week test for entitlement to income replacement benefits.

The arbitrator found that the change in the test for entitlement at 104 weeks was sufficient to entitle the insurer to an examination addressing the new test.

The assessments were found to be reasonably required and the arbitration hearing was adjourned on consent.

The applicant, injured in a motor vehicle accident, sought statutory accident benefits which were terminated by the insurer.

In the context of an arbitration claiming a special award for unreasonably withholding benefits, the applicant sought production of the insurer's reserve information.

The insurer resisted, claiming the information was irrelevant and protected by privilege.

The arbitrator found that the reserve information had a semblance of relevance to the issue of whether the insurer acted reasonably.

Furthermore, the insurer provided no evidence to establish that the dominant purpose of creating the reserves was for litigation, thus failing to prove litigation privilege.

The arbitrator ordered the production of reserve information up to the date of the application for mediation, with subsequent reserve information to be reviewed by the arbitrator for privilege before release.