OFSCDRS 2011

The applicant, an Ontario resident, was injured in a motor vehicle accident in Quebec and elected to receive personal assistance and care expenses under the Quebec Automobile Insurance Act.

The insurer paid benefits initially but terminated them in November 2003 based on an occupational therapy assessment.

The applicant sought retroactive and ongoing benefits, arguing the assessment failed to account for her cognitive deficits.

The arbitrator found the initial assessment flawed and accepted a later assessment that properly scored the applicant's need for assistance with complex tasks due to her brain injury.

The arbitrator awarded retroactive benefits of $70 per week for the period from November 2003 to January 2010, and ongoing benefits at a higher rate thereafter.

Furthermore, the arbitrator found the insurer unreasonably withheld benefits by failing to reassess the applicant upon receiving new information about her cognitive challenges, and ordered the insurer to pay a special award and interest.

The applicant was injured in a motor vehicle accident and applied for a non-earner benefit but failed to submit a Disability Certificate for over a year.

The insurer denied benefits for the period prior to the submission of the certificate.

The arbitrator found that the applicant's drug addiction and mental illness, which severely impaired her motivation and ability to function, provided a reasonable explanation for the delay under section 31 of the Statutory Accident Benefits Schedule.

The applicant was therefore not precluded from claiming the benefit for the disputed period.

The applicant sought income replacement benefits and housekeeping benefits following a motor vehicle accident.

The insurer denied the claims, relying on surveillance evidence showing the applicant working at her family's dry cleaning business and performing physical tasks without apparent difficulty.

The arbitrator found the applicant and her husband lacked credibility, noting numerous contradictions in their testimony.

The arbitrator preferred the medical evidence of the insurer's experts, who concluded the applicant could perform her pre-accident work and housekeeping tasks, over the applicant's experts, who were unaware she had returned to work.

The application for benefits, interest, and a special award was dismissed.

The applicant sought statutory accident benefits after falling from the hood of a truck while performing body work repairs.

The insurer denied the claim, arguing the incident was not an 'accident' under the Statutory Accident Benefits Schedule.

The arbitrator held that repairing a vehicle does not constitute a 'use' of the vehicle within the meaning of the Schedule.

Furthermore, the applicant's injuries were not directly caused by the use or operation of the truck.

The preliminary issue was resolved in favour of the insurer, and the claim was dismissed.

The respondent was injured while working as a parking lot attendant and applied for workers' compensation benefits, which were denied due to a lack of medical documentation showing personal injury.

He then sought statutory accident benefits from his automobile insurer.

The insurer denied the claim on the basis that the respondent was entitled to workers' compensation benefits.

The Arbitrator found the respondent could proceed with his claim for statutory accident benefits.

On appeal, the Director's Delegate reversed the decision, holding that the respondent's failure to prove personal injury before the Board did not entitle him to claim statutory accident benefits, as the Board had exclusive jurisdiction over the workplace accident.

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

Due to the applicant's deteriorating mental capacity, her counsel brought a motion to appoint her separated spouse as her representative in the arbitration process under Rule 10.5 of the Dispute Resolution Practice Code.

The insurer opposed the appointment because the spouse did not reside with the applicant and sought to dismiss the arbitration for delay.

The arbitrator granted the motion, noting the spouse had already been appointed litigation guardian in the related tort action, the Public Guardian and Trustee declined to act, and the delay was attributable to the applicant's incapacity.

The insurer brought a motion for the production of various documents and information from the applicant in a dispute over income replacement benefits.

The applicant argued that the test for production at FSCO should be strict 'relevance' rather than 'semblance of relevance', relying on recent amendments to the Rules of Civil Procedure.

The arbitrator rejected this argument, holding that the 'semblance of relevance' test and a broad stroke approach to production remain the standard at FSCO, subject to considerations of proportionality and privilege.

The arbitrator ordered the applicant to produce her CPP and disability files, income tax returns, ODSP file, educational history, and employment file, but denied the request for health care and collateral coverage plans.

Following a preliminary issue hearing where the insured's application for arbitration was dismissed on the basis that he failed to prove he was involved in an 'accident', the insurer sought its legal expenses and disbursements.

The arbitrator found that the insurer was the successful party and was entitled to its expenses.

The arbitrator awarded the insurer $9,839.20, which included legal fees, disbursements, and the maximum allowable amounts for its expert witness's preparation and attendance, noting that the insurer's expert evidence was preferred because the expert inspected both vehicles closer to the date of the incident.

The applicant sought an order requiring the insurer to produce its complete file created after the date she filed her Application for Mediation.

The insurer opposed, arguing the file was protected by litigation privilege and irrelevant as claims handling was complete.

The arbitrator dismissed the motion, finding the applicant failed to establish the relevance of post-mediation documents and upholding the Commission's general presumption that documents created after an Application for Mediation are prepared for the dominant purpose of litigation.

The appellant, who suffered catastrophic injuries resulting in quadriplegia, appealed an arbitrator's decision denying his claim for $204,130 in home renovations as a rehabilitation benefit.

The insurer had already paid approximately $331,000 towards the purchase of a new home, representing the value of renovations that would have been required for the appellant's existing rented home.

The Director's Delegate upheld the arbitrator's decision, finding that under section 15(8) of the Statutory Accident Benefits Schedule, the maximum benefit available for the purchase of a new home is the value of the renovations to the existing home.

The new home did not become the 'existing home' for the purpose of claiming further renovation costs.

The appellant insurer appealed an arbitration decision that found the respondent's application for arbitration was not statute-barred.

The dispute centered on when the 90-day limitation period under s. 281.1(2)(b) of the Insurance Act commenced following a failed mediation.

The Director's Delegate held that the arbitrator erred in strictly applying the Rules of Civil Procedure to conclude that delivery of the mediator's report to the claimant's representative was required, finding instead that the period runs from the earlier of delivery to the insured or their representative.

Furthermore, the Delegate found that the arbitrator breached natural justice by denying the insurer the opportunity to cross-examine the respondent's legal assistant on her affidavit regarding the receipt date of the report.

The appeal was allowed, the arbitration decision rescinded, and the matter remitted for a new preliminary issue hearing.

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

The insurer terminated income replacement benefits and the matter proceeded to arbitration.

The insurer brought a motion for the production of defence medical examination (DME) reports from the appellant's related tort action, and for an order requiring the appellant to attend a neuropsychological insurer's medical examination (IME).

The arbitrator ordered the production of the DME reports and found the IME reasonable.

On appeal, the Director's Delegate upheld the arbitrator's decisions, finding no error in law.

The Delegate held that fairness dictated the production of the DME reports because the appellant's own experts had reviewed and relied upon them.

The Delegate also found the neuropsychological IME reasonable, particularly since the equivalent DME was incomplete due to the appellant's physical illness.

The applicant, who resides in India, brought a motion to participate in her arbitration hearing by teleconference or video conference.

The insurer took no position on the format but reserved its right to cross-examine the applicant.

The arbitrator held that an electronic hearing would be inappropriate if cross-examination on documents was required, given the applicant's need for an interpreter and unfamiliarity with the process.

The arbitrator ordered that the applicant must attend in person if the insurer gives notice of its intent to cross-examine her by a specified date; otherwise, she may participate by teleconference.

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

After failing to attend a scheduled pre-hearing discussion without excuse, the applicant's counsel successfully moved to be removed from the record.

The applicant again failed to attend the resumed pre-hearing discussion.

The insurer brought a motion to dismiss the application as abandoned and an abuse of process.

The arbitrator granted the motion, finding that permitting the matter to proceed would constitute an abuse of process, and ordered the applicant to pay $750 in expenses to the insurer.

The appellant's appeal from a preliminary arbitration decision regarding statutory accident benefits was previously rejected.

The parties could not agree on the legal expenses of the appeal, leading to this expense hearing.

The Director's Delegate found that the respondent was completely successful and that the appeal was unnecessary, as the appellant had conceded the adjudicator lacked jurisdiction to grant the requested relief from forfeiture.

The respondent was awarded its claimed legal expenses of $1,949.96.

The applicant was struck by a car and claimed statutory accident benefits.

At the hearing, the insurer conceded the applicant suffered a catastrophic impairment due to a mental or behavioural disorder.

The parties disputed the quantum of attendant care benefits.

The applicant sought the maximum $6,000 per month based on an occupational therapy assessment recommending 24-hour care, while the insurer argued for approximately $2,000 per month based on surveillance footage showing greater independence.

The arbitrator awarded $2,987.47 per month, preferring the insurer's second expert regarding supervisory care but rejecting her reductions for personal hygiene.

The arbitrator also ordered a $6,000 special award against the insurer for unreasonably withholding the differential attendant care benefits for 15 months without seeking a professional review of its own expert's maximum-care recommendation.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits, including housekeeping and home maintenance services.

The insurer denied further housekeeping benefits on April 11, 2005, based on an occupational therapy assessment.

The applicant commenced mediation within the two-year limitation period but failed to apply for arbitration within 90 days of the mediator's report.

The arbitrator found that the insurer's refusal was clear, unequivocal, and provided sufficient reasons and notice of the dispute resolution process.

Consequently, the limitation period was triggered, and the applicant was precluded from proceeding to arbitration.

The applicant was injured in a motor vehicle accident in 1995 and received income replacement benefits until 1997.

In 1998, the parties entered into a settlement agreement for $140,500.

The applicant later sought to rescind the settlement, claiming he did not receive a proper disclosure notice, and filed for arbitration in 2000, which he subsequently withdrew in 2001.

In 2010, he filed a new application for arbitration.

The arbitrator held that the applicant was precluded from proceeding because the 1998 settlement agreement was valid and he had received proper notice.

Furthermore, the arbitrator found that re-filing the application after a ten-year delay, without a reasonable explanation or special circumstances, prejudiced the insurer and constituted an abuse of process.

The appellant appealed an Arbitrator's decision dismissing his arbitration proceeding for attendant care benefits due to a multiplicity of proceedings.

The appellant had concurrently filed a lawsuit for other accident benefits and an arbitration for attendant care benefits.

The Director's Delegate upheld the Arbitrator's decision, finding no reasonable apprehension of bias from the Arbitrator having conducted the pre-hearing, and agreeing that the appellant did not have an absolute right to split his claims between forums without a reasonable explanation.

The appeal was dismissed.

The insurer applied to vary an arbitrator's final decision that denied the insured's entitlement to ongoing income replacement benefits (IRBs) but failed to order the repayment of interim IRBs paid prior to the final decision.

The Director's Delegate found that the failure to address the repayment issue, which had been explicitly argued at the hearing, constituted an error in the order under section 284(3) of the Insurance Act.

The order was varied to require the insured to repay $15,840 in interim IRBs to the insurer.