OFSCDRS 2010

The applicant was injured in a motor vehicle accident and claimed income replacement benefits under the Statutory Accident Benefits Schedule.

The insurer terminated benefits, arguing the applicant was self-employed or a part-owner of the convenience store where she worked, rather than an employee.

The arbitrator found that the insurer was not estopped from raising the self-employment argument.

However, based on the credible testimony of the applicant and her witnesses, the arbitrator concluded she was an employee.

The lack of formal financial documentation was reasonably explained by the business operating on a First Nations reserve on a cash basis.

The applicant was awarded income replacement benefits of $400.00 per week.

The appellant appealed an arbitrator's decision denying her claims for income replacement and housekeeping benefits following a motor vehicle accident.

The arbitrator had found the appellant's evidence regarding her employment to be fabricated.

On appeal, the appellant argued that because the respondent insurer missed the statutory timeline to respond to her application by 15 days, she was automatically entitled to the benefits regardless of her actual eligibility.

The Director's Delegate rejected this argument, finding that the Statutory Accident Benefits Schedule provides specific remedies for delayed payments, such as mandatory interest and potential special awards, but does not mandate automatic entitlement to benefits for an insurer's procedural delay.

The appeal was dismissed.

The applicant was catastrophically injured when he attempted a headstand against a stripper pole in a moving party bus and fractured his neck.

The insurer denied statutory accident benefits, arguing the incident was not an 'accident' under the Schedule.

The arbitrator found that the use of the party bus and its amenities, including the pole, was an ordinary and well-known use of that specific type of vehicle.

The arbitrator concluded that the use or operation of the vehicle directly caused the impairment, satisfying both the purpose and causation tests.

The incident was deemed an accident within the meaning of the Schedule.

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

After failing to attend a pre-hearing discussion and a subsequent hearing for disposition, despite proper notice, the arbitrator found the applicant had abandoned his claims.

The arbitration was dismissed under Rule 37.7 of the Dispute Resolution Practice Code, and the insurer was awarded $750 in costs for its attendance.

The Applicant sought various statutory accident benefits following a motor vehicle accident.

Despite initiating the arbitration, the Applicant refused to participate in the hearing process or present any evidence.

The arbitrator dismissed all claims, noting that the Applicant bears the burden of proof and failed to establish the merits of his claims on a balance of probabilities.

No costs were awarded.

The insurer moved for a production order compelling the claimant to produce a decoded OHIP summary from 2000 onwards and prescription records from 1990 onwards, arguing they were relevant to the claim for non-earner benefits following a 2007 motor vehicle accident.

The arbitrator noted that while medical records are producible if relevant, the standard practice at the Commission is to limit production to one year prior to the accident unless a basis for a broader request is provided.

Finding that the insurer failed to demonstrate the relevance of records going back a decade or more, the arbitrator refused the broad request but extended the standard timeframe slightly, ordering the claimant to make best efforts to produce the requested records for a period of two years prior to the accident.

Following an arbitration where the applicant's claim for statutory accident benefits was dismissed, the arbitrator determined the issue of expenses.

Applying the criteria under section 12 of Ontario Regulation 664, the arbitrator noted that the insurer was completely successful.

However, the arbitrator found that the issues regarding the specific treatment plans could have been raised at an earlier arbitration hearing between the same parties.

Concluding that both parties used the process to frustrate the other, the arbitrator ordered that each party bear their own expenses.

The insured was receiving income replacement and housekeeping benefits following a motor vehicle accident.

The insurer terminated these benefits after conducting insurer medical examinations (IMEs).

The insured disputed the termination, arguing the insurer failed to comply with section 37(1) of the Statutory Accident Benefits Schedule by not requesting a new disability certificate before scheduling the IMEs.

The arbitrator agreed and ordered the insurer to pay ongoing benefits.

On appeal, the Director's Delegate upheld the finding that the insurer breached section 37(1) but, following the Court of Appeal in Stranges, varied the order to make the benefits interim, requiring the insured to prove substantive entitlement at a final arbitration hearing.

The applicant was receiving income replacement benefits following a motor vehicle accident.

The insurer terminated these benefits based on a revised section 42 psychological report.

The applicant brought a preliminary issue arguing the insurer breached procedural requirements under sections 35, 37, and 42 of the Statutory Accident Benefits Schedule, and that this non-compliance entitled her to ongoing benefits.

The arbitrator found that the insurer did breach the procedural requirements by failing to provide timely notice and failing to request a new disability certificate.

However, applying appellate jurisprudence, the arbitrator held that these procedural flaws did not invalidate the clear and unequivocal notice of termination, nor did they automatically entitle the applicant to ongoing benefits.

The preliminary issue was dismissed, and the matter was ordered to proceed to a full hearing on the merits.

The appellant insurer appealed a preliminary pre-hearing order of an arbitrator regarding document production and alleged bias by the arbitrator.

The Director's Delegate rejected the appeal under Rule 51.2(c) of the Dispute Resolution Practice Code, finding it was from a preliminary order that did not finally decide the issues in dispute and lacked apparent strength.

The appellant was directed to proceed with a separate motion under subsection 282(12) of the Insurance Act to address the bias allegations.

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

A dispute arose regarding her entitlement to income replacement benefits and attendant care benefits, which she initially pursued through a court action.

She later sought to add these claims to an ongoing arbitration proceeding regarding her catastrophic impairment status.

The insurer argued that the claims were statute-barred from proceeding to arbitration under section 281.1 of the Insurance Act and section 51 of the Schedule.

The Arbitrator held that the claims were not statute-barred, finding that commencing a court action within two years of the insurer's refusal to pay fully satisfied the limitation requirement, and the claims could subsequently be added to the arbitration proceeding.

Furthermore, the insurer failed to properly terminate the attendant care benefits by not arranging a required DAC assessment.

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

The insurer terminated these benefits at the 104-week mark based on a multidisciplinary assessment suggesting the applicant could perform alternative employment.

The applicant sought a special award, arguing the termination was unreasonable.

The arbitrator found that the insurer failed to critically assess the expert reports, which contained significant inconsistencies and ignored the applicant's pre-accident income and limited education.

The insurer's reliance on a flawed assessment process and failure to consider credible evidence to the contrary constituted an unreasonable withholding of benefits.

A special award of 40% of the withheld benefits was ordered.

The applicant's representative, Injury Claims Specialists Inc., brought a motion to be removed from the record due to a breakdown in the relationship with the applicant.

Neither the applicant nor the insurer attended the motion.

The arbitrator found that proper notice was given and that the relationship had broken down.

The motion was granted, and the representative was removed from the record.

The applicant, who was catastrophically injured in a motor vehicle accident, brought a motion to compel the insurer to pay $252,000 towards home modifications or the purchase of a new home.

The insurer had previously indicated it would consider paying this amount but argued it was not yet payable because the applicant had not incurred the expense or provided an invoice.

The arbitrator found that while the insurer had agreed to pay the amount, the applicant had not taken concrete steps towards purchasing a new home or renovating his existing home to constitute an 'invoice' under section 38 of the Schedule.

The motion was dismissed, along with claims for interest and a special award.

The applicant, a pedestrian struck by a vehicle, sought statutory accident benefits for breast reconstruction surgery in Germany, arguing that neck injuries from the accident prevented her from undergoing the procedure in Ontario under general anesthesia with intubation.

The arbitrator dismissed the claim, finding no evidence that the applicant was a candidate for the overseas surgery or that it was reasonable and necessary, especially since medical evidence indicated the procedure could be performed in Ontario without intubation.

Claims for a rehabilitation clinic account and unspecified future surgeries were also dismissed, as the former was settled directly by the insurer and the latter lacked particulars and had not been mediated.

The appellant appealed an Arbitrator's decision denying a special award under s. 282(10) of the Insurance Act.

The insurer had denied accident benefits based on an engineering report and suspicions of a staged accident, partly due to the common ethnicity of the individuals involved.

The Director's Delegate found that the Arbitrator erred in law by failing to provide adequate reasons for concluding that the insurer reasonably relied on the engineering report, especially after the expert's testimony undermined the report's conclusions.

The appeal was allowed and the issue of the special award was returned to arbitration.

The applicant was injured when she slipped and fell on black ice in a parking lot after disembarking from a motorcoach.

She applied for statutory accident benefits, which the insurer denied on the basis that the incident was not an 'accident' under section 2(1) of the Statutory Accident Benefits Schedule.

The arbitrator found that the applicant had safely disembarked and walked a short distance before falling.

Applying the direct causation test from Chisholm, the arbitrator concluded that the slip and fall was an intervening act not directly caused by the use or operation of the motor vehicle.

The application for arbitration was dismissed.

Following a decision on statutory accident benefits where the insurer was wholly successful, the insurer sought its expenses for the arbitration proceeding.

The arbitrator found that the applicant had obstructed the proceeding by failing to comply with an arbitrator's order to produce his employment file and by failing to provide particulars of a special award claim before withdrawing it at the hearing.

The arbitrator awarded the insurer its legal fees and disbursements, reducing some of the claimed hours as excessive.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits, specifically non-earner benefits, from the insurer.

The parties proceeded to arbitration at the Financial Services Commission of Ontario.

The arbitrator applied the principles from Heath v. Economical Mutual Insurance Co. to determine whether the applicant suffered a complete inability to carry on a normal life.

The arbitrator found that the applicant failed to prove that the accident continuously prevented her from engaging in substantially all of her pre-accident activities, as she continued to perform most of her usual activities despite increased pain.

The application for non-earner benefits and interest was dismissed, and the issue of expenses was deferred.

The applicant applied for arbitration at the Financial Services Commission of Ontario after being denied statutory accident benefits by the insurer following a motor vehicle accident.

The applicant claimed entitlement to caregiver benefits, assistive devices, housekeeping services, and examination costs.

Neither party attended the scheduled arbitration hearing nor submitted any evidence to support their respective claims.

Consequently, the arbitrator dismissed the applicant's claims for benefits and both parties' claims for arbitration expenses.