OFSCDRS 2014

The insurer, having successfully defended an appeal regarding statutory accident benefits, sought its appeal expenses.

The insured argued that the preparation time claimed by the insurer's counsel was excessive and that the maximum hourly rate under Rule 78 of the Dispute Resolution Practice Code only applied to representatives of insureds.

The Director's Delegate agreed that the hourly rate should be adjusted to the Legal Aid rate and found that the appropriate amount for legal fees was $3,000, consistent with average awards for straightforward appeals.

The insured was ordered to pay the insurer $3,057.05 in total appeal expenses.

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

After the applicant's representative withdrew as counsel of record due to an inability to locate the applicant, the insurer requested a dismissal of the arbitration application without a hearing.

The arbitrator dismissed the arbitration due to the applicant's non-participation and ordered the applicant to pay the insurer's expenses in the amount of $2,983.97.

The arbitrator declined to award the insurer the return of its $3,000.00 assessment fee because there was insufficient evidence that the applicant failed to submit to an insurer examination or provide required materials.

The insurer appealed and the claimant cross-appealed an Arbitrator's decision regarding attendant care benefits (ACBs) and a special award for unreasonably withheld income replacement benefits (IRBs) following a motor vehicle accident.

The Director's Delegate corrected mathematical and rate errors in the Arbitrator's ACB calculation, increasing the monthly amount to $1,615.32.

The Delegate upheld the Arbitrator's factual finding that the claimant did not require 24-hour supervisory care, preferring the insurer's occupational therapy evidence over the claimant's assessor, who was found to lack objectivity.

The Delegate also held that section 39(3) of the SABS does not bar retroactive ACB claims, as it governs the timing of payment rather than entitlement.

The insurer's appeal against the special award was dismissed, as evidence supported the finding that IRBs were unreasonably withheld.

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

After mediation failed, the applicant applied for arbitration but subsequently lost contact with his counsel, who was permitted to withdraw.

The applicant failed to attend the scheduled arbitration hearing despite being notified.

The arbitrator dismissed the application for arbitration as abandoned and ordered the applicant to pay the insurer's expenses fixed at $1,500.

The applicant's legal representative, Pappas Romero, brought a motion to be removed as lawyers of record due to a breakdown in the lawyer-client relationship.

The applicant opposed the motion.

The arbitrator found that trust and mutual understanding had broken down between the parties.

The motion to withdraw was granted without terms.

The arbitrator declined to award costs to the moving party, finding that the applicant did not fully understand the lawyer-client relationship and was not deliberately obstructing the process.

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

The insurer sought repayment, asserting the applicants were not involved in an accident as defined in the Schedule.

The applicants applied for arbitration but failed to attend the scheduled hearing or maintain contact with their counsel, who was permitted to withdraw from the record.

The arbitrator dismissed the applications for arbitration due to abandonment and ordered the applicants to pay the insurer's expenses.

The applicant applied for statutory accident benefits following an alleged motor vehicle accident.

The insurer subsequently obtained evidence suggesting the applicant was not injured in an accident as defined in the Schedule.

After the applicant's representative was removed from the record, the applicant failed to participate in a resumed pre-hearing discussion and did not attend the scheduled arbitration hearing.

The arbitrator dismissed the arbitration due to the applicant's failure to attend and tender evidence, and ordered the applicant to pay the insurer's expenses in the amount of $1,500.

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

The matter proceeded to an arbitration hearing, but the applicant failed to attend.

At the hearing, the applicant's representative brought a motion to be removed from the record, citing an inability to contact his client.

The arbitrator denied the motion, finding that the representative forfeited the right to withdraw by waiting until the hearing itself without extenuating circumstances.

The insurer requested that the applicant's claims be dismissed due to his non-attendance.

The arbitrator dismissed the claims, noting the applicant failed to provide evidence to support his case, and awarded expenses to the insurer.

The insurer sought expenses following the dismissal of the applicant's claim for statutory accident benefits.

The applicant failed to attend the hearing and did not provide submissions on expenses.

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

Taking a pragmatic approach and considering the time spent on three short attendances and preparation, the arbitrator awarded the insurer $2,000 inclusive of all costs, disbursements, and taxes.

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

The insurer denied the claims, and the applicant applied for arbitration.

The arbitrator dismissed the application, finding the applicant lacked credibility regarding his pre-accident job duties and a pre-existing wrist injury.

The arbitrator preferred the evidence of the applicant's employer, who testified that the applicant's job was sedentary and did not involve the heavy tasks he claimed he could no longer perform.

The claims for income replacement, housekeeping benefits, and a special award were denied.

The applicant's claim for statutory accident benefits was previously dismissed after he and his counsel failed to appear at the arbitration hearing.

The insurer subsequently sought its expenses for the proceeding.

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

Taking a pragmatic approach and noting the insurer's three brief appearances at the Commission, the arbitrator awarded the insurer $1,750.00 in expenses, inclusive of all costs, disbursements, and taxes.

The parties settled a dispute over income replacement benefits on the morning of the arbitration hearing.

The applicant sought $51,976.80 in expenses, arguing the insurer's aggressive and obstructionist tactics unnecessarily prolonged the process.

The arbitrator found that the insurer's failure to meaningfully consider the applicant's earlier settlement offer caused unnecessary preparation work.

The arbitrator awarded the applicant $35,389.06 in expenses, allowing full legal fees for the period after the settlement offer but reducing disbursements for expert reports to the maximum allowable amounts and denying expert attendance fees since no hearing took place.

The insurer brought a motion to dismiss the applicants' arbitration claims for accident benefits.

The applicants had repeatedly failed to attend examinations under oath, despite an earlier finding that they were required to do so and an undertaking by their counsel to produce them.

The arbitrator found that the applicants' ongoing refusal to participate in the claims process while continuing to advance their arbitration claims constituted an abuse of process.

The arbitration applications were dismissed.

The applicant brought a motion to remove the insurer's counsel from the arbitration proceeding, alleging a conflict of interest because the same law firm represented the insurer in both the accident benefits claim and the tort action.

The insurer requested a stay of the motion pending a Divisional Court appeal on the same issue in the tort action.

The arbitrator denied the stay, finding it would cause unnecessary delay.

On the conflict issue, the arbitrator held that the law firm was not in a conflict of interest, as there was no prior solicitor-client relationship with the applicant, and the insurer was not required to retain separate counsel for the accident benefits and tort proceedings.

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

After mediation failed, she applied for arbitration but failed to attend the hearing or communicate with her counsel, who was permitted to withdraw.

The arbitrator dismissed the application for arbitration due to the applicant's non-attendance and ordered her to pay the insurer's expenses of $1,528.67 for document production.

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

After mediation failed, the applicant applied for arbitration.

The applicant failed to attend a prehearing discussion and subsequently failed to attend the arbitration hearing.

The applicant's counsel brought a motion to be removed from the record due to a breakdown in the solicitor-client relationship, having been unable to contact the applicant.

The arbitrator granted counsel's motion to withdraw.

The insurer requested that the application for arbitration be dismissed.

Finding that the applicant had been properly notified and failed to meet her onus to establish entitlement to the claims, the arbitrator dismissed the application for arbitration.

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

The insurer denied income replacement benefits and housekeeping expenses on the basis that the applicant was driving with a suspended licence at the time of the accident, triggering the exclusion under section 30(1)(b) of the Schedule.

The applicant argued he was unaware of the suspension and raised a due diligence defence, claiming he had given his stepson money to pay his traffic fines.

The arbitrator found the applicant failed to establish due diligence, as he took no steps to verify the fines were paid or to appeal his subsequent conviction.

The arbitrator also determined she lacked jurisdiction to grant relief from forfeiture under the Insurance Act or the Courts of Justice Act.

The applicant was precluded from proceeding to arbitration for the disputed benefits.

The applicant brought a motion to remove the insurer's counsel as solicitor of record, alleging a conflict of interest because the same law firm represented the insurer in two separate accident benefits arbitrations involving the applicant.

The arbitrator dismissed the motion, finding no evidence of a conflict of interest or abuse of process, as both claims were for accident benefits and the duty owed by the insurer to the applicant was the same in both claims.

The applicant sought statutory accident benefits following the death of her husband in a motor vehicle accident in Somaliland, Africa.

The insurer denied the claim on the basis that the accident occurred outside the territorial limits set out in the Statutory Accident Benefits Schedule.

The applicant argued the legislation was ambiguous regarding accidents outside Canada and the United States and that contra proferentem should apply.

The arbitrator found no ambiguity in the legislation, concluding that the legislature intentionally restricted benefits to accidents occurring in Canada or the United States.

The applicant was therefore precluded from claiming benefits.

The applicant applied for arbitration at the Financial Services Commission of Ontario following a motor vehicle accident.

The applicant failed to attend a scheduled pre-hearing discussion and the subsequent peremptory arbitration hearing.

The insurer moved to dismiss the application.

The arbitrator found the applicant's claims had become vexatious due to his non-attendance and failure to provide submissions.

The application was dismissed, and the applicant was ordered to pay $850 in expenses to the insurer for costs thrown away.