OFSCDRS 2010

The applicant was involved in a motor vehicle accident and applied for a non-earner benefit, which the insurer denied.

The applicant applied for arbitration more than two years after the denial and more than 90 days after the mediator's report.

The arbitrator held that the insurer's denial was clear and unequivocal, and the applicant was barred from proceeding to arbitration due to the expiry of the limitation period under the Insurance Act and the Statutory Accident Benefits Schedule.

The applicant sought a caregiver benefit following a motor vehicle accident.

At a preliminary hearing, the arbitrator questioned whether the applicant's son-in-law, who is not a licensed legal practitioner, could represent her, and whether the applicant could participate by teleconference from India.

The arbitrator ruled that the son-in-law could represent the applicant only if both filed sworn declarations confirming he would receive no compensation and that any benefits would go solely to the applicant.

The issue of the teleconference hearing was deferred until the representation issue was resolved.

The insurer's request for expenses against the son-in-law personally was dismissed as he was not receiving compensation.

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

The applicant subsequently passed away before the arbitration hearing.

The applicant's former counsel was unable to obtain instructions from a representative of the estate and was permitted to withdraw as solicitors of record.

The solicitor for the estate then requested to withdraw all of the estate's disputes against the insurer on a without expenses basis.

The insurer consented to the withdrawal.

The arbitrator permitted the estate to withdraw all of its disputes on a without expenses basis.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, claiming he sustained a catastrophic impairment due to mental and behavioural disorders.

The insurer denied the claim, relying on an assessment that found only mild impairments.

The arbitrator found the insurer's assessment flawed for failing to follow the AMA Guides and ignoring relevant medical documentation.

Relying on the applicant's experts and treating practitioners, the arbitrator concluded the applicant suffered marked impairments in activities of daily living, social functioning, and adaptation, qualifying as a catastrophic impairment.

The arbitrator also awarded attendant care benefits of $2,460.69 per month and interest on overdue payments.

Following a final arbitration decision that found the applicant was not entitled to income replacement benefits, the parties sought a determination on expenses.

The arbitrator awarded the insurer its expenses for the main arbitration proceeding, as it was the successful party.

However, the applicant was awarded her expenses for her successful interim benefits motion.

The arbitrator also held that she lacked jurisdiction to order the applicant to repay the interim benefits received, because the final arbitration decision was silent on the issue and the insurer had not brought an application to vary that decision.

The insurer, having successfully defended an appeal regarding whether the insured was injured in an accident, sought its expenses for the appeal proceeding.

The Director's Delegate found that the insurer was entirely successful and that the appeal had little chance of success.

The insurer was awarded its legal fees and disbursements fixed at $1,894.92.

The appellant appealed an arbitrator's decision dismissing his claims for statutory accident benefits against the insurer.

The arbitrator had found that the appellant failed to commence mediation within the two-year limitation period.

On appeal, the Director's Delegate found that the appellant's failure to notify the insurer of the accident until six months after it occurred, without a reasonable explanation, was determinative and precluded him from proceeding to arbitration for any claims arising out of the accident.

The appeal was dismissed.

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

A preliminary issue hearing was held to determine whether the applicant sustained a catastrophic impairment under clauses 2(1.2)(f) and (g) of the Statutory Accident Benefits Schedule.

The arbitrator found that the applicant did not suffer a marked or extreme mental or behavioural impairment under clause (g).

However, combining the applicant's physical impairments (34%) and mental/behavioural impairments (29%), the arbitrator concluded that the applicant sustained a 55% whole person impairment.

Therefore, the applicant was deemed to have sustained a catastrophic impairment under clause (f).

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

The insurer denied payment for a catastrophic impairment rebuttal report, arguing it was submitted beyond the 80-business-day time limit under paragraph 42.1(3)3 of the Schedule.

The Arbitrator dismissed the appellant's claim.

On appeal, the Director's Delegate found the Arbitrator erred in law by misapprehending the trigger date for the 80-day time limit, as the insurer had not provided clear notice of its determination.

The Arbitrator's order was rescinded and the issue remitted for a new hearing.

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

Following an unsuccessful mediation, the insurer argued that the applicant's subsequent application for arbitration was time-barred because it was filed more than 90 days after the date of the mediator's report.

The arbitrator held that the 90-day limitation period under section 281.1(2)(b) of the Insurance Act is triggered by the receipt or deemed receipt of the mediator's report, not the date of the report itself.

Finding that the applicant's counsel did not receive the report until a later date, the arbitrator concluded the application was timely and the applicant was not precluded from proceeding to arbitration.

The insurer applied to vary or revoke an arbitration order that granted the insured ongoing income replacement benefits (IRBs).

The insurer argued that the transition from the 'own occupation' test to the stricter 'any occupation' test at the 104-week mark constituted a material change in circumstances under s. 284 of the Insurance Act, and relied on new insurer examinations to argue the insured did not meet the stricter test.

The Director's Delegate held that a change in the legal test alone does not automatically constitute a material change in circumstances where a final order for benefits has been made, noting the protection of benefits under s. 287 of the Insurance Act.

The Delegate found that the insurer's medical assessors failed to document any material change in the insured's condition, as they largely ignored the Arbitrator's previous findings of psychological disability.

The application for variation or revocation was dismissed.

The applicant repeatedly failed to attend scheduled pre-hearing conferences without adequate excuse.

The applicant's representative was unable to contact him and was removed from the record.

The insurer requested that the application be dismissed as frivolous or vexatious under Rule 68 of the Dispute Resolution Practice Code.

The arbitrator gave the applicant twenty days to provide written submissions objecting to the dismissal.

The applicant failed to respond.

The arbitrator found the application had become vexatious and dismissed it.

The insurer was previously awarded its expenses of the arbitration proceeding.

The parties could not agree on the amount.

The insurer claimed $8,748.50, including legal fees and disbursements.

The applicant objected to the disbursement for mileage and parking for out-of-town counsel.

The arbitrator allowed the legal fees and parking expenses but disallowed the mileage expenses, finding no reasonable justification for retaining out-of-town counsel.

The applicant was ordered to pay the insurer's expenses assessed at $8,184.54.

The applicant sought statutory accident benefits after allegedly being struck by a taxi van outside a banquet hall.

The insurer denied the claim, arguing the applicant failed to prove the incident occurred, pointing to the lack of a police report, inconsistencies in medical records, and delayed notice.

The arbitrator found the applicant and her witnesses credible, concluding she was knocked to the ground by the van and sustained an impairment.

The arbitrator also rejected the insurer's defence regarding late notice, finding the applicant had a reasonable explanation for the delay as she did not initially realize the incident qualified as a motor vehicle accident.

The insurer brought a preliminary motion seeking an order to compel the applicant to produce her entire post-accident employment file.

The applicant had applied for statutory accident benefits following a motor vehicle accident but did not claim income replacement benefits, having returned to work three days after the accident.

The insurer argued the employment file was relevant to assessing her disability from activities of daily living.

The arbitrator dismissed the motion, finding that the request failed to meet the tests of relevance and reasonableness, as no income replacement benefits were claimed and there was already adequate medical documentation to address the entitlement questions.

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

The insurer terminated housekeeping benefits and provided an Explanation of Benefits.

More than two years later, the applicant applied for arbitration.

The insurer raised a preliminary issue that the application was statute-barred.

The arbitrator found that the Explanation of Benefits complied with the legal requirements and that the application was filed beyond the two-year limitation period.

The application for arbitration was dismissed, and the applicant was ordered to pay the insurer's expenses.

The applicant was injured while riding a rented all-terrain vehicle (ATV) in British Columbia and applied for statutory accident benefits from her mother's Ontario automobile insurer.

The insurer denied the claim on the basis that the ATV was not an 'automobile' under the Statutory Accident Benefits Schedule.

The arbitrator held that the definition of 'automobile' under subsection 224(1) of the Ontario Insurance Act, which includes vehicles required to be insured under 'any Act', refers exclusively to Acts of the Ontario Legislature.

Because the ATV was not required to be insured under Ontario law, it was not an automobile, and the applicant was not involved in an 'accident' within the meaning of the Schedule.

The applicant was injured in a motor vehicle accident and sought attendant care benefits from the insurer.

The insurer raised a preliminary issue, arguing that the applicant was precluded from proceeding to arbitration because the specific time period for the attendant care benefits claimed had not been the subject of a failed mediation.

The arbitrator found that the issue of attendant care benefits had indeed been mediated and failed, as evidenced by the mediator's report.

The arbitrator held that section 281(2) of the Insurance Act does not require a detailed analysis of every element of an issue raised in mediation.

The applicant was permitted to proceed to arbitration, and the arbitrator awarded expenses to the applicant, finding the insurer's position to be unnecessary and vexatious.

The self-represented applicant sought a catastrophic impairment designation following a motor vehicle accident.

The insurer denied the claim based on a Designated Assessment Centre (DAC) report.

In an interim decision, the arbitrator found that the DAC assessment was fundamentally flawed because it lacked a mandatory psychological assessor and failed to properly assign impairment ratings for all conditions, including fibromyalgia.

The arbitrator ordered that the applicant be given the option to undergo a new, properly constituted multidisciplinary assessment, or proceed to a final hearing based on the existing evidence.

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

Following an interim order for income replacement benefits, the insurer paid the arrears but argued that no special award was payable because no benefits were 'outstanding' when the matter was finally resolved.

The arbitrator held that because the interim payments were subject to a repayment condition until the final settlement, the benefits remained 'outstanding' within the meaning of the previous order and the Insurance Act.

The insurer's position was rejected, and the special award remained payable.