OFSCDRS 2018

The appellant sought to reopen her arbitration file to claim further housekeeping benefits.

The Arbitrator dismissed the proceeding without a hearing, finding that the Commission was functus based on previous minutes of settlement.

On appeal, the Director's Delegate found that the Arbitrator erred in law by failing to provide notice or an opportunity for the appellant to make submissions before dismissing the proceeding, contrary to the Statutory Powers Procedure Act and the Dispute Resolution Practice Code.

The appeal was allowed and the matter returned to arbitration.

The respondent insurer sought its legal expenses after successfully resisting the insured's appeal regarding the calculation of income replacement benefits.

The Director's Delegate declined to award expenses, finding that although the appeal was dismissed, it raised a novel issue and was warranted given errors in the arbitrator's reasoning.

The parties were ordered to bear their own legal expenses of the appeal.

The appellant insurer appealed an Arbitrator's decision finding that the respondent's election to opt out of Workplace Safety and Insurance Act benefits was not made primarily for the purpose of claiming statutory accident benefits.

The insurer argued that the respondent's tort claim in North Carolina was not viable due to contributory negligence and the involvement of an unidentified driver.

The Director's Delegate dismissed the appeal, holding that the Arbitrator's conclusions regarding the respondent's bona fide intent to pursue a tort claim were findings of fact supported by evidence, which an appellate body limited to reviewing errors of law cannot overturn.

The appellant insurance company sought its legal expenses following a successful appeal where it was determined that the respondents had staged an accident and were required to repay accident benefits.

The respondents did not participate in the proceedings.

The Director's Delegate reviewed the appellant's Bill of Costs and found the claimed legal fees, based on the legal aid rate, and disbursements to be reasonable.

The respondents were ordered to pay the appellant $2,010 for its legal appeal expenses.

The insurer, having successfully appealed a decision regarding repayment of attendant care benefits, sought its legal appeal expenses.

The respondent did not file a response to the bill of costs.

The Director's Delegate found the claimed fees, based on the Legal Aid Rate, and disbursements to be reasonable.

The respondent was ordered to pay the insurer's legal appeal expenses fixed at $1,927.08.

The appellant appealed an arbitrator's decision dismissing his application for accident benefits and awarding $5,000 in costs to the insurer.

The appellant had failed to attend his arbitration hearing, after which his representative withdrew.

The arbitrator sent notices warning that the application might be dismissed if he did not respond, but he failed to do so.

The Director's Delegate found no error of law in the arbitrator's decision to proceed in the appellant's absence under Rule 37.7 of the Dispute Resolution Practice Code, and dismissed the appeal.

The appellant appealed an arbitrator's decision denying an adjournment request, permitting the withdrawal of her application for accident benefits, and awarding no costs.

The appellant argued the arbitrator failed to accommodate her under the Human Rights Code, failed to act on the insurer's non-compliance with benefit information requirements, and erred in denying costs.

The Director's Delegate dismissed the appeal, finding no error of law in the arbitrator's handling of the accommodation request, noting the benefit information issue was obiter dicta, and upholding the costs determination.

The applicant was injured in a motor vehicle accident and sought attendant care benefits (ACB) and a special award from her insurer.

The insurer had previously conceded catastrophic impairment and entitlement to some benefits but disputed the quantum of ACB and the special award.

The arbitrator found the applicant's occupational therapist's evidence to be reasonable and holistic, awarding ACB of $1,728.19 and $2,593.67 per month for the respective periods.

The arbitrator also found the insurer's conduct in relying on flawed assessments and ignoring cognitive issues to be unreasonable, thereby meeting the threshold for a special award.

The appellant, Mohammad Rafi, appealed a decision to the Director of Arbitrations.

On consent of the parties, the Director's Delegate ordered the appellant to pay the respondent, Aviva Canada Inc., its legal expenses for the appeal proceedings in the amount of $1,317.58, inclusive of disbursements and HST.

The appellant appealed a decision to the Director of Arbitrations.

On consent of the parties, the Director's Delegate ordered the appellant to pay the respondent its legal expenses for the appeal proceedings in the amount of $1,531.34, inclusive of disbursements and HST.

Following an arbitration where the applicant was substantially successful in claiming statutory accident benefits, the parties could not agree on expenses.

The applicant claimed $52,374.17 in expenses, including paralegal fees.

The arbitrator applied a global approach, reducing the claimed hours for the paralegals and legal assistant, and setting the hourly rates based on the Legal Aid Ontario tariff for students-at-law and law clerks, as the representatives were not lawyers.

The insurer was ordered to pay $21,539.69 in expenses.

Following an arbitration where the applicant was successfully designated as catastrophically impaired, the parties could not agree on expenses.

The arbitrator assessed the applicant's bill of costs globally, applying the Legal Aid Ontario tariff maximum of $150 per hour for counsel due to the complexity of the catastrophic impairment issue.

The arbitrator allowed the claimed hours in full but reduced certain disbursements that lacked supporting documentation or exceeded the maximums allowed under the Expense Regulation.

The insurer was ordered to pay $39,972.51 in expenses.

Aviva Canada appealed an arbitrator's decision finding that the claimant's injuries fell outside the Minor Injury Guideline (MIG) due to a diagnosis of chronic pain.

The Director's Delegate allowed the appeal, holding that the arbitrator erred in law by failing to apply the proper test from Scarlett.

Specifically, the arbitrator did not analyze whether the chronic pain was a 'clinically associated sequela' of the initial minor soft tissue injuries.

The Delegate substituted an order finding the injuries fell within the MIG.

A secondary ground of appeal regarding the late admission of expert reports was dismissed because Aviva had elected to proceed with the hearing rather than adjourn.

Zurich brought a preliminary motion to stay the insured's variation/revocation proceeding, arguing the insured failed to submit to an insurer's in-home occupational therapy examination and failed to produce medical documents.

The Director's Delegate dismissed the motion.

The parties reached an agreement on document production during the hearing.

Regarding the examination, the Delegate found that the insured had sufficiently submitted to the assessment by participating for over three hours, and that the assessor had gathered enough information through formal and informal observations to provide an opinion once the outstanding documents were produced.

Procedural fairness did not require a further examination.

The appellants were injured in a motor vehicle accident and claimed housekeeping and home maintenance benefits.

The insurer stopped paying benefits after the appellants failed to attend insurer examinations, sending them OCF-9 Explanation of Benefits forms.

The appellants filed for mediation more than two years later.

The Director's Delegate found that the OCF-9 forms used by the insurer were no longer approved by the Superintendent and referred to a nonexistent rebuttal process.

Therefore, the denial notices were invalid, the limitation period had not started to run, and the appellants' claims were not statute-barred.

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

The parties purportedly settled the dispute for $3,000, but the applicant unilaterally altered the settlement release before signing it.

The insurer refused to pay, arguing the settlement was not completed.

At a preliminary issue hearing to determine the validity of the settlement, the insurer's witness referred to her internal file to refresh her memory.

The applicant moved for production of the entire file, arguing the insurer waived privilege.

The arbitrator dismissed the motion, finding that referring to documents to refresh memory does not amount to an implied waiver of privilege, and that the insurer's counsel did not expressly waive privilege over the entire file.

The appellant appealed an arbitrator's decision refusing to recuse himself from a Statutory Accident Benefits Schedule arbitration on the grounds of reasonable apprehension of bias.

During a teleconference, the arbitrator had made comments suggesting the parties cooperatively agree to dates for an in-person insurer's examination, which the appellant argued demonstrated bias.

The Director's Delegate allowed the appeal, finding the arbitrator erred in law by misapplying the test for reasonable apprehension of bias from Wewaykum, improperly rationalizing his comments based on his own good faith intentions, and failing to provide intelligible reasons addressing uncontested affidavit evidence.

The arbitrator's order was set aside, and he was recused from further involvement in the file.

The insurer appealed an arbitrator's decision denying repayment of accident benefits paid to the insureds.

The arbitrator had found that the motor vehicle collision was staged, but concluded the insurer was not entitled to repayment because there was no evidence of fraud or wilful misrepresentation regarding the specific injuries, treatments, and expenses claimed.

The Director's Delegate allowed the appeal, holding that where fraud or wilful misrepresentation relates to the fundamental facts of the accident itself, the insureds are required to repay all benefits paid directly to them.

The matter was returned to arbitration to determine the specific amounts repayable.

The Applicant was previously found to have suffered a catastrophic impairment and was awarded an income replacement benefit and a special award.

In this expense hearing, the Applicant sought costs for the arbitration.

The arbitrator found the Applicant was wholly successful and entitled to expenses.

Applying a 4:1 ratio of preparation to hearing time and allowing costs for a preliminary issue hearing, the arbitrator awarded $28,306.50 in legal fees and $17,000.00 in disbursements, for a total of $45,306.50 inclusive of HST.

The applicant sought a special award under s. 282(10) of the Insurance Act, arguing that the insurer unreasonably withheld or delayed payments for statutory accident benefits, including a non-earner benefit and previously settled medical treatment plans.

The arbitrator dismissed the motion, finding that a special award cannot be ordered without a finding of an underlying entitlement to benefits under the Schedule.

Since no such finding of entitlement had been made, the arbitrator lacked jurisdiction to order a special award.