OFSCDRS 2009

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

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

Prior to the preliminary issue hearing, the applicant settled her long-term disability claim, which would offset any potential income replacement benefits, and subsequently withdrew her arbitration.

The insurer sought $6,088.65 in expenses for its preparation for the preliminary issue hearing.

The arbitrator dismissed the insurer's claim for expenses, finding that the applicant had a valid reason for withdrawing and had provided timely notice to the insurer two months before the hearing.

The appellant appealed an arbitrator's decision awarding him $6,628.75 in legal expenses following a settlement of his statutory accident benefits claim.

The appellant argued the arbitrator erred by not bifurcating the expense hearing to separately determine expenses incurred preparing for the hearing itself, and alleged a reasonable apprehension of bias.

The Director's Delegate dismissed the appeal, finding no evidence that the parties jointly requested a bifurcated expense hearing as required by the Dispute Resolution Practice Code, and no evidence that the arbitrator had closed her mind or prejudged the issues.

The parties settled the applicant's claims for statutory accident benefits prior to the arbitration hearing.

The applicant sought $15,710.81 in legal fees and disbursements.

The insurer agreed the applicant was entitled to expenses but disputed the amount, arguing the hours claimed were excessive and certain expert reports were not reasonably required.

The arbitrator found the preparation time and correspondence hours reasonable, and accepted that the disputed expert reports were reasonably required.

The arbitrator fixed costs and disbursements at $12,000 inclusive of GST.

The appellant appealed an arbitrator's decision denying his claims for income replacement benefits and certain medical benefits.

The respondent insurer cross-appealed the arbitrator's order requiring it to pay $7,028.58 for two treatment plans on the basis that it failed to provide a timely response under the Statutory Accident Benefits Schedule.

The Director's Delegate dismissed the appellant's appeal because it improperly challenged findings of fact rather than errors of law.

The cross-appeal was also dismissed, as the arbitrator correctly applied the mandatory statutory consequences for the insurer's failure to respond to the treatment plans within the prescribed timelines after receiving them by fax.

The appellant appealed an arbitrator's decision denying her claims for increased income replacement benefits (IRBs) based on self-employment losses, lost educational expenses, and an additional death benefit following the death of her daughter in a motor vehicle accident.

The respondent cross-appealed the arbitrator's finding that the appellant's Employment Insurance (EI) benefits were not taxable income.

The Director's Delegate dismissed the appellant's appeal, upholding the arbitrator's findings that pre-accident business losses are not recoverable, the $400 weekly IRB cap applied, the appellant was not enrolled in an educational program at the time of the accident, and she did not qualify as a dependant for the additional death benefit.

The Delegate allowed the respondent's cross-appeal, finding the arbitrator erred in law by not recognizing EI benefits as taxable income under the Income Tax Act, and remitted the IRB calculation back to the arbitrator.

The applicant sought arbitration for medical, attendant care, and housekeeping benefits following a motor vehicle accident.

The insurer argued the application was filed beyond the two-year limitation period.

The arbitrator found that the insurer's initial refusals were either not clear and unequivocal or failed to properly inform the applicant of the dispute resolution process as required by the Schedule and the rule in Smith v. Co-operators.

Consequently, the limitation period was not triggered or had not expired, and the applicant was not precluded from proceeding to arbitration.

The applicant sought statutory accident benefits following an alleged motor vehicle accident on a public transit bus.

The insurer brought a motion regarding the applicant's failure to attend insurer medical examinations and examinations under oath.

The arbitrator found that the applicant failed to attend medical examinations without a reasonable explanation, rendering him ineligible for benefits during the period of non-compliance.

Furthermore, the applicant failed to attend scheduled examinations under oath.

The arbitrator held that the insurer was not liable to pay benefits during the periods of non-compliance and ordered a stay of the arbitration proceedings until the applicant attends an examination under oath, finding that allowing the hearing to proceed would result in an abuse of process.

The insurer brought a motion to dismiss the applicant's arbitration proceeding for statutory accident benefits due to her failure to pursue the claim and attend pre-hearings.

The applicant, who had difficulty retaining counsel due to personal circumstances, finally retained a lawyer who attended the motion and undertook to produce requested documents.

The arbitrator dismissed the motion to dismiss, ordered the applicant to produce the specified documents within 30 days, and awarded the insurer $250 in costs thrown away for the applicant's previous non-attendance.

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

He had not reported approximately $20,000 in income on his original 2006 income tax return, but later filed an amended return to include it.

The insurer argued that under section 64.1 of the Statutory Accident Benefits Schedule, the unreported income should not be included in the calculation of benefits.

The arbitrator agreed, finding that the purpose of section 64.1 is to avoid complex inquiries into undeclared income, and that an amended return filed after the fact to remedy non-disclosure does not override the original return for the purpose of calculating benefits.

The applicant sought expenses following an arbitration decision regarding statutory accident benefits.

The arbitrator found that the applicant was generally successful, having obtained an award for housekeeping benefits and successfully defeated the insurer's position on non-earner benefits.

The insurer's argument that the applicant's late withdrawal of the attendant care claim should disentitle him to expenses was rejected, as the insurer failed to demonstrate significant costs thrown away.

The applicant was awarded expenses in the amount of $18,832.68.

The applicant sought to exclude the insurer from participating in the arbitration because it filed its response 12 days late.

The insurer brought a motion to extend the time to file its response under Rule 81 of the Dispute Resolution Practice Code.

The arbitrator found the delay was unintentional, the insurer had a potential defence on the merits, and the applicant suffered no prejudice.

The arbitrator extended the time for the insurer to file its response nunc pro tunc.

The applicant was awarded her expenses for the preliminary issue hearing in the amount of $532.44 plus GST.

The applicant's representative brought a motion to be removed from the record and to seal the motion record, arguing that the record contained information protected by solicitor-client privilege.

The representative had not served the motion record on the insurer.

The arbitrator ordered the representative to serve the motion record on the insurer, finding nothing within it that could not reasonably be disclosed.

The motion to be removed from the record and to seal the record was adjourned to be heard orally by the preliminary issue hearing arbitrator.

The appellant insurer sought to appeal an arbitrator's interim order regarding the calculation of Capital Cost Allowance (CCA) for the respondent's self-employment income in determining income replacement benefits.

The Director's Delegate allowed the appeal to proceed, noting that the arbitrator failed to consider a significant prior appeal decision on the treatment of CCA.

A stay of the arbitrator's orders regarding the CCA calculation and a special award hearing was granted pending the appeal.

The applicant was injured in a motor vehicle accident and applied for a determination of catastrophic impairment.

The insurer denied the application, and the applicant subsequently submitted two more applications for the same determination more than two years later, arguing that a change in the law permitted re-application.

The insurer argued the arbitration was time-barred under s. 281(5) of the Insurance Act.

The arbitrator held that the two-year limitation period applies to catastrophic impairment determinations and runs from the date of a valid refusal.

Because the applicant's subsequent applications were based on the same criteria and did not demonstrate a change in condition, the limitation period was not reset.

The application for arbitration was dismissed as time-barred.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits from the insurer, including caregiver, housekeeping, and medical benefits.

The insurer terminated caregiver and housekeeping benefits after an occupational therapy in-home assessment.

The arbitrator found that the applicant was not substantially unable to perform her pre-accident caregiving activities, as she could still perform the essential tasks, and denied caregiver benefits.

The claim for medical benefits was denied for lack of evidence.

However, the arbitrator found the applicant was substantially unable to perform some of her pre-accident housekeeping tasks due to pain, and awarded housekeeping benefits at a reduced rate of $50 per week.

Each party was ordered to bear their own arbitration expenses.

The Appellant appealed an arbitration decision dismissing its claim for death and funeral benefits and awarding costs against its representative.

On a preliminary motion, the Director's Delegate granted the Appellant leave to expand its Notice of Appeal but denied requests to introduce fresh evidence, including several affidavits.

The Delegate also denied requests to remove counsel for both parties so they could testify as witnesses, and determined the contents of the appeal record.

The Respondent was ordered to confirm or produce a will referenced in earlier proceedings.

The insurer appealed an arbitrator's decision refusing its request for an adjournment to conduct insurer examinations under section 42 of the Statutory Accident Benefits Schedule.

The Director's Delegate held that while arbitrators have the jurisdiction under the Statutory Powers Procedure Act to adjourn a hearing and stay proceedings where an insured unreasonably refuses to attend an insurer examination, the arbitrator in this case properly exercised his discretion in refusing the adjournment.

The arbitrator found the request was made too late and the insurer already knew the case it had to meet.

The appeal was dismissed.

The appellant was injured in a motor vehicle accident and applied for statutory accident benefits, claiming a catastrophic impairment.

An arbitrator found the appellant did not sustain a catastrophic impairment and directed the parties to request an expense hearing if they could not agree on legal expenses.

The appellant appealed the preliminary decision and sought a stay of the expense hearing.

The Director's Delegate accepted the appeal, finding it raised important and novel issues, including whether impairments should be rated before future surgery.

The Delegate also granted a stay of the expense hearing, concluding it would be more cost-effective and efficient to determine the appeal first, as the expense hearing would likely duplicate the appeal issues.

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

The insurer denied the claims and provided stoppage notices.

The applicant filed for arbitration more than four years after the initial denial, well beyond the two-year limitation period under the Insurance Act and the Statutory Accident Benefits Schedule.

The applicant argued that his former solicitor was negligent and failed to inform him of the time limits, and that the insurer's notices were defective because they lacked signatures.

The arbitrator held that the applicant is bound by the actions of his agent (solicitor) and that the absence of a signature on the mandatory forms did not invalidate them.

The arbitration was dismissed as time-barred.

The parties agreed on the amount of the applicant's Loss of Earning Capacity Benefits (LECB) but disputed the commencement date.

The insurer argued entitlement should begin on January 29, 2004, when the REC DAC evaluation was completed.

The applicant argued it should begin in May 2001, when the insurer made its original LECB offer of zero.

The Arbitrator held that the goal of consumer protection is best served by making LECB entitlement commence from the date the insurer made its original LECB offer, or when it should have been made.

The Arbitrator ordered that the applicant's LECB entitlement commenced in May 2001.