OFSCDRS 2016

The applicant, a New York resident, was injured in a motor vehicle accident in Ontario.

The respondent insurer paid New York no-fault benefits but failed to advise the applicant of her right to claim more generous Ontario statutory accident benefits.

Years later, the applicant sought retroactive Ontario benefits.

The insurer argued the claim was time-barred and that the applicant had elected New York benefits.

The arbitrator held that the applicant had a reasonable explanation for the delay because the insurer breached its statutory duty to provide information about Ontario benefits.

The arbitrator found no valid election was made and the insurer was bound by its Power of Attorney and Undertaking to provide the more generous Ontario benefits.

The insurer was permitted to set off the New York benefits already paid but was statute-barred from claiming an alleged overpayment.

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

After failing to attend multiple pre-hearing discussions, failing to provide productions, and failing to appear at the preliminary issue hearing despite notice, the insurer moved to dismiss the application.

The arbitrator dismissed the application for arbitration due to the applicant's non-attendance and failure to produce evidence, and ordered the applicant to pay $400 in expenses to the insurer.

The applicant was injured in a motorcycle accident and sought statutory accident benefits from the insurer, claiming she suffered a catastrophic impairment due to a combination of physical injuries and severe psychological disorders (depression, PTSD, and chronic pain).

The arbitrator found that the applicant's combined physical and psychological impairments met the 55% whole person impairment threshold, qualifying her for catastrophic impairment status.

The arbitrator also found the applicant suffered a complete inability to carry on a normal life, entitling her to ongoing non-earner benefits.

Claims for a specialized hospital bed and certain rehabilitation expenses were granted, while claims for massage therapy, travel time, and a special award were denied.

The applicant applied for arbitration at the Financial Services Commission of Ontario following a motor vehicle accident, seeking medical benefits, a special award, and interest.

At the scheduled arbitration hearing, the applicant failed to appear.

The applicant's representative brought a motion to be removed due to a breakdown in the solicitor-client relationship, which was denied.

The insurer subsequently moved to dismiss the application due to the applicant's failure to attend and adduce evidence.

The applicant's representative consented to the motion, and the arbitrator dismissed the application in its entirety.

The applicant sought statutory accident benefits, including income replacement benefits (IRBs) and medical/rehabilitation benefits, following a motor vehicle accident.

The insurer terminated IRBs and denied further treatment plans, arguing the applicant's injuries were minor and did not prevent him from working.

The arbitrator dismissed the application, finding the applicant's evidence regarding his inability to work highly unreliable and contradicted by his employment records and his family doctor's clinical notes.

The arbitrator also held that the applicant's physical and psychological impairments fell within the Minor Injury Guideline (MIG), as there was no compelling evidence from his treating health practitioner that a pre-existing condition would prevent him from achieving maximal recovery within the MIG limits.

The self-represented applicant sought a determination of catastrophic impairment and ongoing housekeeping and non-earner benefits following a motor vehicle accident.

The applicant suffered from pre-existing schizophrenia and other mental health challenges.

The arbitrator found that the applicant failed to meet the evidentiary burden of proving a whole person impairment in excess of 55% under the AMA Guides, or that his psychological deterioration was caused by the accident rather than his pre-existing condition.

As the applicant was not found to be catastrophically impaired and had exhausted his non-catastrophic limits, the claims for further housekeeping and non-earner benefits were dismissed.

The appellant insured appealed an arbitrator's order dismissing his claim for statutory accident benefits due to his failure to attend an Examination Under Oath (EUO).

The Director's Delegate allowed the appeal, finding that the arbitrator lacked jurisdiction to stay or dismiss an arbitration proceeding for failure to attend an EUO, as EUOs are part of the insurer's adjusting process, not the adjudicative process.

The appropriate remedy for non-compliance under the Statutory Accident Benefits Schedule is the suspension of benefits for the period of non-compliance, not the dismissal of the arbitration.

The stay was lifted and the matter returned to arbitration.

The Applicant sought non-earner benefits following a 2002 motor vehicle accident.

The Insurer raised a preliminary issue that the claim was statute-barred under the two-year limitation period in s. 281.1(1) of the Insurance Act and s. 51(1) of the Schedule.

The Arbitrator found that the Insurer's Explanation of Benefits did not provide a clear and unequivocal denial of non-earner benefits, nor did it include the required notice of the dispute resolution process as mandated by Smith v. Co-operators.

Consequently, the limitation period was never triggered, and the Applicant was not precluded from proceeding to arbitration.

The insurer brought a motion to stay the arbitration proceeding regarding the applicant's catastrophic impairment claim until she attended a neuropsychological independent medical examination (IME).

The applicant opposed the motion, arguing the IME was not reasonably necessary as no brain injury was alleged, she had already attended multiple psychiatric IMEs, and the insurer had alleged fraud and terminated all benefits.

The arbitrator applied the factors from Bogic and Ramalingam, finding that while the insurer has a right to request IMEs, the balance of fairness favored the applicant.

The arbitrator noted the proximity of the motion to the scheduled hearing and the potential prejudice of delaying the resolution of the catastrophic impairment and fraud issues.

The motion for a stay was dismissed, and the hearing was ordered to proceed as scheduled.

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

After her legal representative was removed from the record due to a breakdown in the solicitor-client relationship, the applicant failed to attend a pre-hearing discussion and the scheduled arbitration hearing.

The arbitrator proceeded in the applicant's absence.

Because the applicant bore the onus of proving entitlement to the claimed benefits and presented no evidence, the application for arbitration was dismissed.

The parties were invited to provide written submissions regarding expenses.

The appellant was successful on her appeal and sought her legal appeal expenses.

The respondent insurer did not dispute entitlement but challenged some items on the bill of costs.

The Director's Delegate found the claimed amount reasonable and ordered the respondent to pay $2,500 inclusive of disbursements and HST, noting that a global assessment rather than a line-by-line assessment is appropriate.

The insurer brought a motion for a stay of an arbitrator's order pending the determination of its appeal.

The arbitrator had ordered the insurer to pay for certain goods, services, and a catastrophic impairment assessment, finding that the insured's impairments were caused by a 2007 motor vehicle accident.

The insurer argued that the arbitrator applied the wrong legal test for causation ("material contribution" instead of "but for").

The Director's Delegate denied the request for a stay, finding that while the appeal raised a bona fide legal issue, the insurer failed to demonstrate that it would suffer imminent hardship if the stay were refused, and the potential hardship raised was purely speculative.

The insurer raised a preliminary issue arguing that the insured was barred from proceeding to mediation and arbitration because he failed to attend a scheduled insurer's examination under section 44 of the Statutory Accident Benefits Schedule.

The arbitrator found that the examination had been cancelled by mutual consent because the insured had travelled to China, and the insurer made no subsequent attempts to reschedule it.

As there was no active examination for the insured to attend, he did not fail to comply with the Notice of Examination.

The insurer's motion was dismissed, and the insured was permitted to proceed to arbitration.

The applicant sought statutory accident benefits following a motor vehicle accident but failed to attend a pre-hearing discussion and the scheduled arbitration hearing.

The applicant's counsel also failed to attend.

The arbitrator proceeded in the applicant's absence pursuant to Rule 37.7 of the Dispute Resolution Practice Code.

As the applicant bore the onus of proving entitlement and presented no evidence, the application was dismissed.

The insurer was awarded $500.00 in expenses due to the applicant's failure to advance the application.

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

After his counsel was removed from the record, the applicant failed to attend the scheduled arbitration hearing and a subsequent re-scheduled hearing.

The insurer requested that the application be dismissed and sought its expenses.

The arbitrator dismissed the application for arbitration due to the applicant's failure to participate and failure to meet his onus of proof.

The arbitrator awarded the insurer $3,871.03 in expenses for costs thrown away in defending the abandoned application.

The applicant sought accident benefits following a motor vehicle accident but failed to attend scheduled medical examinations, pre-hearing conferences, and the arbitration hearing itself.

Her counsel was previously removed from the record after advising that the applicant had moved to Pakistan and could not be reached for instructions.

The arbitrator dismissed the application for arbitration due to the applicant's failure to participate and meet her onus of proof.

The insurer was awarded $4,592.83 in expenses for costs thrown away in defending the abandoned application.

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

At the scheduled arbitration hearing, the applicant failed to attend and her representative was not prepared to call evidence.

The insurer requested that the application be dismissed.

The arbitrator dismissed the application due to the applicant's unexplained absence.

The insurer was awarded $1,200 in expenses.

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

After failing to attend a pre-hearing discussion, a resumption of the pre-hearing, and the scheduled arbitration hearing, the arbitrator proceeded in the applicant's absence.

As the applicant bore the onus of proving entitlement and presented no evidence, the application for arbitration was dismissed.

The insurer was awarded $750 in expenses due to the applicant's failure to participate and advance the claim.

The applicants sought accident benefits following an alleged motor vehicle collision.

The insurer denied the claims, alleging the accident was staged and the applicants made material misrepresentations.

At a preliminary issue hearing, the arbitrator heard evidence from the applicants, the occupants of the other vehicle (who confessed to participating in a staged accident scheme), and accident reconstruction experts.

The arbitrator found the applicants' version of events highly improbable, noting inconsistencies between their testimony and the physical damage to the vehicles, the lack of independent witnesses, and the improbable behaviour of the passengers.

The arbitrator concluded the reported accident did not occur and dismissed the claims.

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

After failing to participate in the arbitration process and losing contact with his counsel, who was subsequently removed from the record, the insurer brought a motion to dismiss the application.

The arbitrator found that the applicant had abandoned his claim, rendering it frivolous and vexatious under section 68 of the Dispute Resolution Practice Code.

The application for arbitration was dismissed without costs.