OFSCDRS 2013

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

The insurer refused to pay further benefits, arguing the applicant's election to opt out of WSIB benefits was made primarily to obtain statutory accident benefits.

A preliminary issue hearing was scheduled to determine the validity of the election.

The applicant failed to appear at the hearing despite proper notice.

As the applicant bore the onus of proving the validity of his election and failed to do so, the application for arbitration was dismissed.

The applicant was ordered to pay the insurer's expenses of $5,254.77.

The insurer was wholly successful on an appeal regarding an arbitration expenses award and sought its legal expenses for the appeal.

The Director's Delegate found that the appeal did not raise novel issues and that the insurer's success entitled it to its legal expenses.

The Delegate reduced the claimed preparation time and awarded the insurer $1,078.55 in total expenses, inclusive of HST and disbursements, calculated at the Legal Aid rate plus experience allowance.

The applicants sought statutory accident benefits following a motor vehicle collision.

The insurer denied the claims, alleging that the collision was staged and that the applicants wilfully misrepresented material facts.

At a preliminary issue hearing, the arbitrator considered evidence from the police officer, the occupants of the other vehicle, and accident reconstruction engineers.

The arbitrator rejected the insurer's theory that the collision was staged, finding no evidence of a conspiracy between the drivers and noting that the occupants of the other vehicle did not know the applicants.

The arbitrator concluded that the applicants were involved in an 'incident' within the meaning of section 2(1) of the Schedule and did not wilfully misrepresent material facts.

The issue of impairments was reserved for the main arbitration hearing.

The appellant insurers sought to stay 15 individual arbitrations pending the resolution of a Superior Court action and FSCO charges alleging systemic fraud by the clinics providing the respondents' assessments and treatments.

The Arbitrator dismissed the stay motions, applying the RJR-MacDonald test for interlocutory injunctions.

On appeal, the insurers argued the Arbitrator should have applied the less stringent Armstrong criteria and erred in finding no irreparable harm.

The Director's Delegate dismissed the appeal, holding that the Armstrong criteria apply only to appellate stays under s. 283(6) of the Insurance Act, not to first-instance stays.

The Delegate found no error in the Arbitrator's application of RJR-MacDonald, noting the public interest in a timely and efficient dispute resolution system outweighed the insurers' desire to avoid duplicating evidence across multiple arbitrations.

The applicant sought arbitration for statutory accident benefits following a 2005 motor vehicle accident.

The insurer argued the application was statute-barred as it was filed more than two years after the refusal to pay benefits.

The applicant contended the refusal was invalid because the insurer failed to offer a Designated Assessment Centre (DAC) examination, a requirement that was abolished during the transition period.

The arbitrator found the insurer was not required to offer a DAC assessment because the negative reports triggering the refusal were received after the DAC system was abolished.

The termination notice was valid, and the application for arbitration was dismissed as statute-barred.

The appellant insurer sought to appeal a preliminary arbitration decision which found that its denial of a catastrophic impairment designation did not trigger the two-year limitation period under the Insurance Act.

The Director's Delegate accepted the appeal, noting it raised a substantive and novel issue of law that could determine the entire arbitration.

However, the request for a stay of the arbitrator's order was denied, as the parties had already consented to adjourn the arbitration hearing, rendering a stay of little practical effect.

The applicant was injured in a motor vehicle accident and sought housekeeping and caregiving benefits from her insurer.

She moved to California shortly after the accident and gave inconsistent medical histories to various health care providers, attributing her injuries to a yoga incident or moving boxes rather than the car accident.

The arbitrator found the applicant lacked credibility and failed to prove on a balance of probabilities that she suffered any disability related to caregiving or housekeeping as a result of the motor vehicle accident.

The claims were dismissed.

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

The parties reached a settlement resolving all substantive issues, including the reinstatement of income replacement benefits.

However, the applicant sought an arbitral order confirming ongoing entitlement, which the insurer refused to consent to, arguing it would improperly shift the burden of proof in any future termination under the variation/revocation provisions of the Insurance Act.

The arbitrator held that proceeding to a hearing when there was no active dispute was unreasonable and stayed the arbitration, with conditions allowing for its resumption if the insurer later sought to terminate the benefits.

The applicant was injured in a motor vehicle accident when he was struck by a minivan while examining his truck on the side of the road.

He applied for statutory accident benefits, claiming he sustained a catastrophic impairment.

The insurer denied the claim, arguing that the applicant's impairments were unrateable due to inconsistent test results and symptom magnification.

The arbitrator preferred the evidence of the applicant's experts, finding that the use of the Gait Derangement Table was appropriate for rating his physical impairments and that his psychological impairments were marked despite invalid psychometric testing.

The arbitrator concluded that the applicant met the definition of catastrophic impairment under both the 55% whole person impairment threshold and the marked mental or behavioural disorder threshold.

The applicant sought production of the insurer's file in a dispute over statutory accident benefits.

The insurer claimed solicitor-client privilege, litigation privilege, and lack of relevance over various documents, including an investigation report previously disclosed.

The arbitrator found that the insurer failed to establish the evidentiary foundation for its privilege claims, noting that the claims investigation phase requires neutrality rather than an orientation toward litigation.

The insurer was ordered to produce the disputed documents, including the dates reserves were set, but not the reserve amounts.

The applicant sought payment for various medical treatment and assessment plans, interest on overdue payments, and a special award following a motor vehicle accident.

The arbitrator found that several claims had already been paid by the insurer, awarding interest on those late payments.

Other claims were denied due to the applicant's failure to attend insurer's examinations without reasonable explanation, and due to significant factual inconsistencies and omissions regarding her pre-existing medical history in the submitted treatment plans.

The claim for a special award was dismissed as there was no evidence of bad faith by the insurer.

Each party was ordered to bear its own arbitration expenses.

The applicant sought attendant care and housekeeping benefits following a motor vehicle accident, claiming services were provided by family members and a lawn care company.

The insurer denied the claims on the basis that the expenses were not 'incurred' under section 3(7)(e) of the Schedule because the family members did not sustain an economic loss and the lawn care company did not provide services in the course of its ordinary employment.

The arbitrator rejected the applicant's expert economic evidence that 'economic loss' includes mere loss of time or opportunity, finding it must relate to a financial or monetary loss.

The arbitrator concluded the family members failed to prove any economic loss and dismissed the claims for benefits and a special award.

The applicant commenced an arbitration application against the insurer but subsequently failed to communicate with her legal representatives, who were granted permission to be removed from the record.

The applicant failed to attend a scheduled pre-hearing conference and did not respond to the arbitrator's notice of intent to dismiss the proceeding.

Finding that the applicant had no interest in pursuing the matter and that the application had become vexatious, the arbitrator dismissed the application without a hearing pursuant to Rule 68 of the Dispute Resolution Practice Code.

Following an arbitration where the insurer successfully defended the applicant's claims for statutory accident benefits, the insurer sought its expenses.

The arbitrator found the insurer was entirely successful and entitled to its reasonable expenses.

Applying a 1:4 ratio for attendance to preparation time, the arbitrator awarded the insurer $13,001.23 in fees, disbursements, and HST.

The applicant was injured in a motor vehicle accident and claimed she sustained a catastrophic impairment due to a mental or behavioural disorder.

The insurer argued the accident was minor and her impairments were pre-existing or caused by unrelated post-accident stressors.

Applying the three-stage process from Pastore, the arbitrator found that the accident materially contributed to the applicant's diagnosed mental and behavioural disorders, including major depressive disorder and pain disorder.

The arbitrator preferred the evidence of the applicant's experts and the insurer's occupational therapist over the insurer's psychiatrist, concluding the applicant suffered a marked impairment in the sphere of deterioration or decompensation in work or worklike settings.

The applicant was deemed catastrophically impaired.

The applicant sought his expenses of the arbitration after being granted income replacement benefits but denied other claims.

The insurer sought reimbursement of its expenses, arguing the applicant prolonged and obstructed the process.

The arbitrator found no evidence of delay or obstruction by the applicant and noted his modest success entitled him to a modest recovery of expenses.

The arbitrator applied a ratio method to reduce the claimed legal fees and disallowed or reduced several disbursements, including rejecting an expert report that violated the expert's duty to the Tribunal.

The insurer was ordered to pay the applicant $18,918.77 for his arbitration expenses.

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

After his counsel withdrew due to a breakdown in communication, the applicant failed to attend a pre-hearing and the motion to dismiss.

The arbitrator found the applicant had abandoned the proceeding and granted the insurer's motion to dismiss the arbitration.

The insurer was awarded $1,000 in costs thrown away.

The applicant sought statutory accident benefits following a motor vehicle accident.

After her representative was removed from the record, the applicant failed to attend a pre-hearing and the scheduled arbitration hearing.

The arbitrator proceeded in her absence and dismissed the application, finding there was no evidence presented and no case for the insurer to meet.

The insurer was awarded $750 in expenses for its preparation and attendance.

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

The insurer denied the claims, and the matter proceeded to arbitration.

The applicant failed to attend the pre-hearing and the hearing.

The arbitrator dismissed the application for arbitration due to the applicant's failure to attend and lack of evidence.

The insurer was awarded $750 in expenses.

The applicant sought income replacement benefits following a motor vehicle accident, claiming she was unable to work as a bottle packer due to physical pain and depression.

The insurer denied the benefits, relying on independent medical examinations by a physiatrist and a neuropsychologist who found no physical or cognitive limitations preventing her from working, and suggested she was feigning impairment.

The arbitrator preferred the evidence of the insurer's assessors over the applicant's subjective complaints and her family physician's support, concluding that the applicant failed to prove on a balance of probabilities that she suffered a substantial inability to perform her employment duties.

The claim for income replacement benefits was dismissed.