OFSCDRS 2012

The applicant, who sustained a serious brain injury after being struck by a dump truck as a pedestrian, brought a motion for interim benefits pending arbitration.

The insurer agreed to pay ongoing attendant care, housing, and assistive devices.

The arbitrator declined to order interim benefits for past attendant care, finding that the applicant had not demonstrated a compelling case or urgency, as there was no evidence that anyone was waiting to be paid for past care.

The appellant insurer sought to withdraw its appeal of an arbitrator's preliminary decisions regarding third-party production and catastrophic impairment, following a relevant Court of Appeal decision.

The respondent insured consented to the withdrawal but sought legal expenses as a condition.

The Director's Delegate permitted the withdrawal and ordered the appellant to pay $6,250 in legal expenses to the respondent, finding that the respondent had been successful in resisting an earlier stay request and that the appellant's conduct warranted an award of costs.

The Applicant sought expenses for an arbitration hearing that concluded in 2008 when the Insurer conceded the issue of catastrophic impairment.

The Insurer argued the Applicant was not entitled to expenses due to a 4.5-year delay in submitting a Bill of Costs, relying on Rule 79.1 of the Dispute Resolution Practice Code and the principle of finality.

The Arbitrator found that Rule 79.1 did not apply because no final arbitration order had been issued.

Given the ongoing dealings between the parties over the years, the delay did not deprive the Applicant of her entitlement under s. 282(11) of the Insurance Act.

The Arbitrator awarded the Applicant $30,972.81 in expenses.

The respondents were injured in a motor vehicle accident and entered into a settlement with their insurer, Aviva Canada Inc., regarding statutory accident benefits.

They later sought to rescind the settlement after the two-day cooling-off period, arguing the Settlement Disclosure Notice (SDN) did not comply with the Settlement Regulation.

The Arbitrator found the SDN deficient and allowed the rescission.

On appeal, the Director's Delegate confirmed the Arbitrator's decision, holding that the SDN failed to provide the mandated information regarding rescission in clear and straightforward language directed towards an unsophisticated person, and that this defect was not merely technical.

The respondent was injured when she fell off a golf cart being driven on a highway.

She applied to the Motor Vehicle Accident Claims Fund for statutory accident benefits.

The Fund denied the claim, arguing that golf carts are exempt from the requirement to carry motor vehicle liability insurance under the Off-Road Vehicles Act.

The Director's Delegate affirmed the Arbitrator's decision that while golf carts are exempt when driven off-road, the exemption does not apply when driven on a highway.

Under the Highway Traffic Act and the Compulsory Automobile Insurance Act, a golf cart driven on a highway is a motor vehicle requiring insurance, and therefore qualifies as an 'automobile' for the purpose of statutory accident benefits.

The Fund's appeal was dismissed.

The applicant was injured in a motor vehicle accident and claimed non-earner benefits.

At the time of the accident, he was receiving an Ontario Disability Support Program (ODSP) benefit.

The insurer argued it was entitled to deduct the ODSP benefit from the non-earner benefit as a collateral benefit under section 60 of the Schedule.

The arbitrator held that section 58 of the Schedule requires insurers to pay benefits despite the receipt of ODSP benefits, and that ODSP regulations require the inclusion of non-earner benefits in income, thereby avoiding double compensation.

The insurer was ordered to pay the full non-earner benefit without deduction.

Following a finding that the insurer unreasonably withheld income replacement and housekeeping benefits, the arbitrator determined the quantum of a special award under s. 282(10) of the Insurance Act.

The insurer had terminated benefits despite its own assessors concluding the applicant was unable to work and required housekeeping assistance.

The arbitrator fixed the special award at $58,000, representing approximately 20% of the withheld payments inclusive of interest, to punish the insurer's blameworthy conduct and deter future similar actions.

The appellant appealed an arbitrator's decision finding that her 1999 motor vehicle accident did not cause her 2001 discectomy and chronic pain, and that she did not sustain a catastrophic impairment.

The Director's Delegate upheld the arbitrator's factual findings on causation, noting they were supported by evidence and not based on a misapprehension of law.

However, the Delegate found that the arbitrator erred by failing to follow the required methodology under the AMA Guides to calculate the appellant's Whole Person Impairment (WPI) for her other impairments.

The matter was remitted to the arbitrator to determine the specific impairment ratings and whether they combine to 55% or more WPI.

The respondent was catastrophically injured while riding an uninsured off-road motorcycle on a private motocross track.

He applied to the Motor Vehicle Accident Claims Fund for statutory accident benefits.

The Fund denied the claim, arguing that under section 226(2) of the Insurance Act, the required insurance policy did not include accident benefits because the motorcycle did not need to be registered under the Highway Traffic Act.

The Director's Delegate dismissed the Fund's appeal, finding that the Off-Road Vehicles Act required the motorcycle to be insured under a motor vehicle liability policy, which by definition includes statutory accident benefits.

The applicant was struck by an uninsured driver and applied for accident benefits from the Motor Vehicle Accident Claims Fund (MVAC Fund).

The applicant had previously settled a lawsuit against her long-term disability carrier, Great West Life (GWL), for a lump sum of $150,000.

The MVAC Fund brought a motion to determine whether the GWL settlement was deductible from any accident benefits owing under s. 267.8 of the Insurance Act or s. 22 of the Motor Vehicle Accident Claims Act.

The arbitrator found that the settlement funds were paid to settle a legal obligation rather than as a payment under an income continuation benefit plan.

As there was no evidence breaking down the settlement funds to past benefits owing, the arbitrator concluded the settlement was not deductible under either statute.

The appellant insurer sought to appeal an arbitrator's preliminary decision allowing the respondent, who was a minor at the time of a purported settlement, to resume a pre-hearing discussion because the settlement was never approved by a court.

The Director's Delegate found that the arbitrator's decision was a preliminary or interim order that did not finally decide the issues in dispute.

The Delegate declined to exercise discretion to accept the appeal, finding no apparent strength to the appeal and significant prejudice to the respondent if the appeal were allowed to proceed, given the small amount in dispute.

The appeal was rejected.

The applicant's legal representative brought a motion to withdraw from the arbitration proceeding due to an inability to locate or contact the applicant.

The insurer brought a cross-motion to dismiss the application for arbitration without a hearing, arguing the applicant had abandoned the proceeding by failing to attend multiple scheduled medical assessments and examinations under oath.

The arbitrator granted the representative's motion to withdraw and dismissed the application for arbitration, finding the applicant had abandoned the proceeding.

The insurer was awarded $2,500 in expenses.

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

The insurer denied payment for various medical benefits, assessments, and treatment plans.

At the arbitration hearing, the applicant withdrew her claims for non-earner and attendant care benefits.

The arbitrator found the applicant's evidence regarding her remaining claims to be evasive and lacking in credibility, noting her inability to recall details of the treatments and assessments.

The arbitrator concluded that the applicant failed to prove on a balance of probabilities that the claimed expenses were reasonable and necessary.

The application was dismissed.

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

The insurer sent 28 notices stating that she did not qualify for non-earner benefits 'at this time'.

The insurer argued the applicant was barred from arbitration due to the two-year limitation period.

The arbitrator found that the insurer's notices were not clear and unequivocal denials, as they failed to provide a real basis for the refusal and the phrase 'at this time' created ambiguity.

Therefore, the limitation period had not begun to run, and the applicant was not precluded from proceeding to arbitration.

The applicant, a registered nurse, was struck by a school bus and claimed catastrophic impairment due to physical, cognitive, and psychological injuries.

The insurer disputed the catastrophic designation and denied ongoing attendant care and housekeeping benefits.

The arbitrator found the applicant sustained a catastrophic impairment under both the marked mental/behavioural impairment threshold and the 55% whole person impairment threshold, preferring the evidence of the applicant's experts who properly accounted for her severe depression and chronic pain.

The arbitrator awarded ongoing attendant care, housekeeping benefits, the cost of a cellphone, and a special award due to the insurer's unreasonable delay in reinstating income replacement benefits.

The Applicants claimed statutory accident benefits following an alleged motor vehicle accident.

The Insurer denied the claims on the basis that the Applicants were not involved in the accident.

At the preliminary issue hearing, the Applicants failed to appear or provide evidence.

The Arbitrator accepted the Insurer's evidence, including an examination under oath of the driver, which confirmed the Applicants were not passengers in the vehicle.

The claims were dismissed, and the Applicants were ordered to pay the Insurer's arbitration expenses.

The applicant sustained catastrophic injuries, including a traumatic brain injury, in a motor vehicle accident.

A dispute arose regarding the quantum of attendant care benefits under section 16 of the Statutory Accident Benefits Schedule.

The insurer reduced benefits from $6,000 to $2,132 per month, arguing the applicant's increased needs were due to post-accident drug abuse and traffic charges rather than the accident.

The arbitrator found the drug abuse was caused by the accident and that the applicant required 24-hour supervision until his rehabilitation stabilized in early 2011.

The applicant was awarded $6,000 per month for the disputed period up to March 2011, and $2,132 per month ongoing thereafter.

The applicant sought payment of $16,896.64 for a catastrophic impairment rebuttal report submitted to the insurer after the 80-business-day limitation period under the Statutory Accident Benefits Schedule.

The arbitrator found that the insurer had provided a valid determination and complete report, triggering the timeline.

However, the applicant had a reasonable excuse for the delay because her chosen occupational therapist was unavailable due to family issues, and the insurer suffered no prejudice.

The insurer was ordered to pay the full cost of the rebuttal report, plus interest.

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

The insurer denied the catastrophic impairment claim in 2007 and again in 2008 after a rebuttal report.

The insurer brought a preliminary motion to dismiss the applicant's arbitration application, arguing it was commenced beyond the two-year limitation period under section 281.1 of the Insurance Act.

The arbitrator dismissed the motion, finding that a refusal of catastrophic impairment status does not trigger the limitation period unless accompanied by a refusal of a specific benefit.

In the alternative, the 2007 refusal was equivocal because it invited a rebuttal report, meaning only the 2008 refusal could have triggered the limitation period, making the applications timely.

The applicant sought statutory accident benefits after slipping and falling on ice in a Canadian Tire parking lot while walking back to her vehicle to retrieve a broken windshield wiper blade for replacement.

The insurer denied benefits on the basis that the incident was not an 'accident' under the Statutory Accident Benefits Schedule.

The arbitrator found that the fall did not arise out of the use or operation of an automobile, and even if it did, the use or operation did not directly cause the impairment.

The application for arbitration was dismissed.