OFSCDRS 2016

The applicant's representative, Yeung & Associates, brought a motion to withdraw as the representative of record in a statutory accident benefits dispute.

The arbitrator found that there had been a breakdown of communication in the solicitor-client relationship and that the applicant had apparently retained another representative.

The motion was granted, and Yeung & Associates was permitted to withdraw without terms.

The arbitrator ordered an 11-year-old minor to personally pay the respondent's arbitration legal expenses of $3,172.50.

The minor appealed and sought a stay of the order.

The Director's Delegate granted the stay, noting that proceedings involving minors must be brought through a litigation guardian who acknowledges liability for costs.

The appeal was put over to allow the parties to request the arbitrator to amend the title of proceedings and the expense order to reflect that any costs are payable by the litigation guardian, not the minor personally.

The Appellant appealed an arbitration decision denying her claims for statutory accident benefits.

At the oral appeal hearing, the Appellant raised a new ground of appeal based on section 38.2 of the 1996 Schedule, which had not been previously raised or briefed.

To ensure fairness and avoid litigation by stealth, the Director's Delegate adjourned the hearing to allow for written submissions on whether the new ground should be permitted and its substance.

The Appellant was ordered to pay the Respondent $750 in costs thrown away for the adjourned hearing.

The insurer raised a preliminary issue seeking to stay the arbitration pending the applicant's attendance at an updated occupational therapy in-home assessment and a psychological examination under section 44 of the Statutory Accident Benefits Schedule.

The applicant argued the occupational therapy assessment was causing him severe physical and psychological distress.

The arbitrator ordered the arbitration stayed until the applicant completes the psychological assessment and the remaining functional testing for the occupational therapy assessment, though the latter could be conducted by a different occupational therapist.

The arbitrator also ruled that the applicant's service provider was not required to speak with the insurer's assessor or provide further documentation under section 46.2, as sufficient information had already been provided.

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

Following the applicant's death, his counsel submitted an Application for Mediation signed only by counsel, unaware of the applicant's passing.

The insurer argued the application was invalid as it lacked the claimant's signature and was not properly authorized.

The arbitrator held that the absence of a claimant signature was a mere defect in form that did not invalidate the proceeding.

Furthermore, the applicant's wife, acting continuously under a Power of Attorney and subsequently as executrix, had the authority to and did authorize the application.

The preliminary issue was resolved in favour of the applicant.

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 at the Financial Services Commission of Ontario.

The applicant's representative was removed from the record prior to the hearing, and the applicant subsequently failed to attend the scheduled four-day arbitration hearing.

The arbitrator dismissed the applications due to the applicant's failure to present evidence and meet the burden of proof.

The insurer was awarded $1,750 in expenses for having to prepare for the hearing despite the applicant's non-attendance.

The self-represented applicant failed to attend pre-hearings or respond to correspondence regarding her application for statutory accident benefits, citing her son's hospitalization.

The insurer brought a motion to dismiss the claim and sought expenses.

The arbitrator found that the applicant had constructively withdrawn her claim and deemed the application withdrawn pursuant to Rule 70 of the Dispute Resolution Practice Code.

The arbitrator declined to make orders regarding future applications, finding no authority to do so.

The insurer's request for expenses was denied, as the insurer unnecessarily prolonged the process by pursuing the motion to dismiss despite knowing the unrepresented applicant intended to withdraw.

The applicant was injured in a motor vehicle accident and received income replacement benefits (IRBs).

She later returned to work part-time.

The parties disputed the correct method for calculating the IRB deduction for her post-accident part-time income.

The applicant argued for an 'Equitable Approach' where her income would be prorated based on the hours she was unable to work.

The insurer argued that under section 7(3) of the Schedule, 70% of her gross weekly employment income should be deducted from her IRB entitlement.

The arbitrator agreed with the insurer, finding that the law requires the deduction to be based on the weekly income earned, not on a percentage of working versus non-working hours.

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

The applicant failed to attend the arbitration hearing.

The insurer sought dismissal of the claims and repayment of benefits paid, relying on a civil jury finding that the applicant was not in the vehicle at the time of the collision.

The arbitrator dismissed the applicant's claims and ordered her to repay $93,858.04 in income replacement benefits paid directly to her, finding they were obtained through wilful misrepresentation.

The arbitrator declined to order repayment of amounts paid to third-party service providers.

The applicant was also ordered to pay the insurer's arbitration expenses of $9,570.50.

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

After the applicant's legal counsel was removed from the record, the applicant failed to attend a pre-hearing discussion and the scheduled arbitration hearing.

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 to the claimed benefits and presented no evidence, the application for arbitration was dismissed.

The insurer requested $500 in expenses, and the arbitrator invited written submissions from the applicant on the issue of expenses.

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

After his counsel was removed from the record, the applicant failed to communicate or participate in scheduled pre-hearings.

The insurer brought a motion to dismiss the application for arbitration.

The arbitrator found that the applicant had abandoned his claims and dismissed the application as frivolous or vexatious under Rule 68 of the Dispute Resolution Practice Code, awarding $500 in expenses to the insurer.

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

After failing to participate in the arbitration process and having his counsel removed from the record, the insurer brought a motion to dismiss the application.

The arbitrator found that the applicant had abandoned his application and that it was frivolous and vexatious.

The application was dismissed, and the applicant was ordered to pay the insurer's legal expenses of $632.80.

The applicant sought a death benefit following the death of his mother in a motor vehicle accident, claiming he was her dependant.

At the time of the accident, the 26-year-old applicant lived with his parents but earned over $1,000 per week.

The arbitrator applied the 50% formula for financial dependence, finding that the applicant's needs did not exceed twice his income.

Consequently, the applicant was not principally financially dependent on his parents and was not entitled to the death benefit.

The Applicant was catastrophically injured in a motor vehicle accident and sought $75,461.75 in attendant care benefits for services provided by his daughter, a child and youth worker.

The Insurer denied the claim.

The Arbitrator found that the daughter did not sustain an economic loss, her employment as a child and youth worker was not analogous to providing attendant care to her father, there was no legal obligation to pay her, and the services were not reasonable and necessary given the availability of other family members.

The claim for attendant care benefits was dismissed.

The applicant sought to withdraw her application for arbitration of accident benefits after learning that the primary invoice in dispute had already been paid by the insurer.

The insurer sought its expenses for the arbitration proceeding.

The arbitrator permitted the withdrawal and awarded the insurer $500 in expenses, noting that both parties had prolonged the proceeding by preparing for a hearing without realizing the invoice had been paid, but finding the applicant's counsel somewhat more responsible for failing to credit the payment upon receiving notice.

The applicant, a taxi driver, was assaulted by passengers and subsequently fell into a ditch while attempting to close the van's door.

He applied for statutory accident benefits, but the insurer disputed whether the incident constituted an 'accident' under section 3(1) of the Statutory Accident Benefits Schedule.

The arbitrator applied the purpose and causation tests from Greenhalgh, finding that the taxi was being used for its ordinary purpose and that the entire series of events, starting with the use of the automobile, directly caused the impairment.

The arbitrator concluded that the applicant was involved in an accident.

The applicant, a minor at the time of the motor vehicle accident, applied for non-earner benefits.

The insurer denied the claim and later argued the applicant was statute-barred from proceeding to arbitration because the limitation period had expired, asserting that the applicant's mother acted as a litigation guardian.

The arbitrator found that a parent acting as a representative or substitute decision-maker is not a litigation guardian under the Limitations Act, 2002, and therefore the limitation period did not begin to run until the applicant reached the age of majority.

The arbitrator also found that although the applicant did not file a Disability Certificate that met the criterion for non-earner benefits, she had provided sufficient information to establish a potential claim, allowing the application to proceed to arbitration.

The applicant sought statutory accident benefits following a 2008 motor vehicle accident, including costs for a psychiatric evaluation, an OCF-19, attendant care, and housekeeping benefits.

The arbitrator dismissed all claims, finding that the applicant failed to seek pre-approval for the psychiatric evaluation and that the charge for the OCF-19 was unreasonable.

Furthermore, the arbitrator found the applicant and his spouse lacked credibility, noting significant inconsistencies in their evidence and a failure to disclose relevant pre-existing medical conditions to assessors.

As the substantive claims were denied, claims for interest and a special award were also dismissed.

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

After the applicant failed to attend a pre-hearing discussion and his representative lost contact with him, the insurer brought a motion to dismiss the application for arbitration.

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 $750 in expenses for preparing for and attending the proceedings.

Following a preliminary issue hearing where it was determined the applicant was not involved in an accident, the insurer requested an expense hearing.

The arbitrator found the applicant's claim to be frivolous and vexatious due to adverse credibility findings.

The applicant was ordered to pay the insurer's expenses in the amount of $13,220.38.