OFSCDRS 2018

Following an arbitration where the insurer successfully defended all issues in dispute, the insurer requested an expense hearing.

The applicant failed to submit any materials or respond to the insurer's cost submissions.

The arbitrator found that the applicant's claim for income replacement benefits was improper and vexatious, as she was operating a business while claiming benefits.

The arbitrator awarded the insurer its full claimed expenses of $30,967.21, noting the amounts were within the maximum limits permitted under the Expense Regulation and billed at the Legal Aid rate.

Following a successful arbitration for statutory accident benefits, the applicant sought an award for expenses.

The arbitrator found the applicant was entitled to expenses based on his success at the hearing.

Applying a 4:1 ratio for preparation to hearing time, the arbitrator awarded counsel fees at the legal aid rate, partial paralegal fees, and disbursements, totaling $17,023.43.

The applicant sought expenses following a successful arbitration where she was found to be catastrophically impaired.

The applicant claimed $154,064.95 in fees and disbursements.

The insurer argued the fees and disbursements were unreasonable.

The arbitrator reviewed the criteria under the Dispute Resolution Practice Code, noting the applicant's 100% success and the insurer's conduct which prolonged the hearing.

The arbitrator reduced the legal fees to exclude work done prior to the application for arbitration and reduced several disbursement claims to align with allowed amounts.

The applicant's expenses were fixed at $135,568.78.

The appellant appealed an Arbitrator's decision dismissing her claims for post-104 week income replacement benefits and a medical benefit for a physiotherapy treatment plan.

The Director's Delegate found that the Arbitrator failed to provide adequate reasons for his decision, which constituted a breach of natural justice and procedural fairness.

The Arbitrator ignored, failed to summarize, analyze, or consider important evidence that was not supportive of the insurer's position, and misinterpreted other evidence.

The appeal was allowed, the decision rescinded, and the matter returned to arbitration for a fresh hearing before a different arbitrator.

The applicant was involved in a motor vehicle accident and sought statutory accident benefits, including income replacement, attendant care, and housekeeping benefits.

The insurer denied the claims.

The arbitrator dismissed all of the applicant's claims, finding that the applicant lacked credibility and failed to prove on a balance of probabilities that he suffered a substantial inability to perform the essential tasks of his employment or his housekeeping tasks.

The arbitrator also found that the applicant's wife did not sustain an economic loss to justify the attendant care and housekeeping claims.

Claims for a special award and interest were consequently dismissed.

The appellant appealed an arbitrator's decision finding that the parties did not enter into a binding settlement of her claims for statutory accident benefits arising from two motor vehicle accidents.

The parties had agreed to settle the claims for $18,000 but did not discuss how the funds would be allocated between the two accidents.

When the insurer provided a release allocating most of the funds to the second accident, the appellant refused to sign because it would prejudice her tort claim regarding the first accident.

The Director's Delegate dismissed the appeal, upholding the arbitrator's finding that there was no meeting of the minds on the essential term of allocation, and therefore no valid settlement.

The Insurer requested an expense hearing following a 23-day arbitration in which all of the Applicant's claims for statutory accident benefits were dismissed.

The Applicant argued that under the Licence Appeal Tribunal rules, costs should only be awarded for frivolous or vexatious behaviour.

The Arbitrator held that the pre-transition Dispute Resolution Practice Code and Expense Regulation applied.

Given the Insurer's complete success, largely due to extensive surveillance evidence, the Arbitrator found the Insurer was entitled to its expenses.

However, noting the consumer protection objective of the legislation, the Arbitrator declined to award the full $220,598.99 claimed, fixing the expenses at $110,834.37 to avoid creating a barrier to access to justice.

The applicant was injured in a motor vehicle accident and sought a determination that he sustained a catastrophic impairment due to mental and behavioural disorders.

The insurer brought a preliminary motion to dismiss the arbitration, arguing that a catastrophic determination without a claim for specified benefits was outside the arbitrator's jurisdiction.

The arbitrator dismissed the motion, finding jurisdiction to determine the status.

On the merits, the arbitrator preferred the evidence of the applicant's experts, finding that the insurer's psychiatrist failed to follow the AMA Guides by using a WSIB scale instead.

The arbitrator concluded the applicant suffered a Class 4 (Marked) impairment in deterioration or decompensation in a work or work-like setting, meeting the catastrophic impairment threshold.

The applicant's request for a special award was denied as no specific monetary benefits were unreasonably withheld.

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

After multiple pre-hearings and rescinded settlement offers, the applicant withdrew her application on the third day of the arbitration hearing, contingent on a $10,000 settlement.

The applicant subsequently rescinded the settlement.

The insurer sought its expenses for defending the application.

The arbitrator found that the applicant's constant rescissions demonstrated an abuse of the dispute resolution process.

The arbitrator permitted the withdrawal of the application and ordered the applicant to pay the insurer's reasonable expenses of $20,000, inclusive of HST and disbursements.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, including income replacement benefits (IRB) and medical benefits.

The insurer terminated the IRB claim, alleging the applicant wilfully misrepresented her employment status by working after the accident while claiming to be disabled.

The arbitrator found that while the applicant did wilfully misrepresent that she had not worked on several specific days, the misrepresentation was not 'material' enough to justify terminating all benefits, as the insurer could simply deduct the earnings from the IRB.

The arbitrator awarded the IRB (less a deduction for days worked) and a medical benefit, but denied an attendant care assessment.

A special award of $2,000 was also ordered against the insurer for unreasonably withholding benefits, though the amount was tempered due to the applicant's own deceitful conduct.

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

The applicant had failed to attend the preliminary issue hearing, which was convened to determine if the applicant was involved in a staged accident.

The arbitrator assessed the insurer's expenses, considering the complexity of the matter, which included a Wagg application to obtain Crown evidence from a related homicide investigation.

The arbitrator awarded the insurer $31,661.90 in legal fees, disbursements, and HST, after deducting a portion of the investigative expenses and the filing fee.

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

Both parties brought motions for the production of documents.

The insurer sought an order compelling a non-party, the Ministry of Community and Social Services, to produce the applicant's Ontario Disability Support Program (ODSP) file.

The applicant did not oppose this motion, and the arbitrator granted it, finding the file relevant to the applicant's ongoing health and disability status.

The applicant sought an order compelling the insurer to produce its adjuster's log notes relating to catastrophic impairment from 2006 to 2016.

The arbitrator granted the motion in part, ordering production of the notes for a reasonable period of one year prior to the receipt of the first catastrophic impairment assessments, rather than back to the date of the accident.

Following a successful arbitration where the applicant's claims for accident benefits outside the Minor Injury Guideline were dismissed, the insurer sought costs.

The insurer claimed $27,852.64 in expenses, while the applicant argued for a nominal amount.

The arbitrator found the insurer was entitled to expenses but reduced the amount, noting the limited financial risk of the matter and that it was unreasonable for the insurer to have two lawyers.

Applying the legal aid rate for one lawyer, the arbitrator awarded the insurer $11,311.31, inclusive of disbursements and HST.

The Applicant was injured in a motor vehicle accident and sought accident benefits from the Insurer.

The underlying arbitration was dismissed because the Applicant failed to attend section 44 insurer examinations.

In this expense hearing, both parties sought their expenses.

The Arbitrator found that the Insurer was completely successful in the preliminary issue hearing and was entitled to its expenses.

The Arbitrator awarded the Insurer $5,419.07 in legal fees and disbursements, taking into consideration principles of reasonableness, consumer protection, and access to justice.

Following a finding that the insurer unreasonably delayed payment of attendant care and medical benefits, the arbitrator determined the quantum of the Special Award and expenses.

The arbitrator awarded a Special Award of $52,000, finding the insurer's conduct blameworthy and noting the vulnerability of the insured.

The arbitrator also awarded the applicant $35,360.45 for arbitration expenses and $4,279.88 for the costs of the written hearing on these issues.

The applicant sought expenses following a successful preliminary issue hearing regarding statutory accident benefits.

The arbitrator awarded the applicant $19,629.68 in expenses, inclusive of fees, disbursements, and HST, applying a 1:4 ratio for hearing to preparation time and utilizing the legal aid hourly rate.

The appellant appealed an arbitrator's decision that employer-paid Canada Pension Plan (CPP) contributions should not be included in calculating 'gross employment income' for income replacement benefits under the SABS-2010.

The Director's Delegate upheld the arbitrator's decision, finding that the Income Tax Act does not include employer-paid CPP contributions in an employee's gross income.

The appeal was dismissed.

The parties sought expenses following a motion hearing where the insurer successfully moved to remove the applicant's counsel due to the inadvertent disclosure of privileged documents.

The arbitrator found that the insurer was wholly successful on the motions and was entitled to its expenses.

However, the arbitrator declined to order the applicant's former counsel to pay the expenses personally, finding that contesting the removal motion was justified given that removal of counsel is a drastic remedy.

The insurer's expenses were fixed at $3,684.76 based on a global approach to preparation time.

The Applicant was injured in a motor vehicle accident and sought housekeeping and income replacement benefits from her insurer.

The insurer disputed the housekeeping expenses, arguing they were not 'incurred' as the Applicant could not prove she spent the claimed amounts weekly.

The Arbitrator applied a broad interpretation of 'incurred' and awarded the housekeeping benefits.

The insurer also sought to deduct a lump sum long-term disability settlement the Applicant received after five years of litigation from her income replacement benefits.

The Arbitrator held that under section 7(1) of the Schedule, the insurer could not deduct the lump sum payment because the collateral benefits were not 'being received' periodically during the relevant time.

The Arbitrator also denied the insurer's request to deduct union dues from the calculation of net weekly income and awarded the Applicant interest on the overdue benefits.

The Applicant sought a determination that he suffered a catastrophic impairment following a motor vehicle accident.

In a previous decision, the arbitrator found the Applicant's Whole Person Impairment (WPI) was 50%, falling short of the 55% threshold.

On appeal, the Director's Delegate remitted the matter back to arbitration to determine the impairment rating under Chapter 4, Table 3 of the AMA Guides and to assign a rating for medication use.

Upon reassessment, the arbitrator assigned a 15% WPI for the nervous system impairment (after applying a 2% discount for double counting) and a 2% WPI for medication use.

Combining these with the previously confirmed ratings resulted in a 54% WPI, which rounds to 55%.

Consequently, the arbitrator concluded the Applicant sustained a catastrophic impairment.