OFSCDRS 2019

The parties both brought motions to vary interim production orders made during a pre-hearing discussion regarding a statutory accident benefits dispute.

The insurer sought to exclude certain sources of records because the applicant had commenced a tort action against them, while the applicant sought specific document production due to mistrust of the insurer.

The arbitrator dismissed both motions, finding she lacked jurisdiction to vary interim orders under Rule 61.2 of the Dispute Resolution Practice Code.

Even if jurisdiction existed, the arbitrator noted she would have dismissed the motions on their merits, as the tort action was not material to the arbitration and the applicant's mistrust did not justify anticipating a breach of the production order.

The applicant was injured in a motor vehicle accident and sought various statutory accident benefits, including non-earner, medical, attendant care, and housekeeping benefits.

The insurer suspended benefits after the applicant failed to attend an examination under oath, though a previous arbitrator found the notices defective.

The arbitrator found the applicant entitled to the disputed medical treatment plans, as well as attendant care and housekeeping benefits for a limited period due to the insurer's procedural breach in failing to provide assessment reports in a timely manner.

However, the claim for non-earner benefits was dismissed as the applicant did not meet the test of a complete inability to lead a normal life.

The request for a special award was also denied.

The applicant sought weekly caregiver benefits following a 2010 motor vehicle accident.

The insurer terminated benefits in September 2012.

The arbitrator found the applicant's evidence lacked credibility, noting numerous inconsistencies regarding her injuries, substance abuse, and the fact that her children had been removed from her care by Family and Children's Services in 2011 for reasons unrelated to the accident.

The arbitrator preferred the evidence of the insurer's assessors and concluded the applicant was not the primary caregiver at the time of the accident, did not suffer a complete inability to carry on a normal life, and did not incur the claimed caregiving expenses.

The application was dismissed.

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

After a 16-day hearing, the presiding arbitrator passed away before rendering a decision.

The insurer objected to proceeding on the record and requested a hearing de novo, arguing that credibility was at issue.

The arbitrator, exercising delegated discretion, ordered that the matter proceed on the record using the transcripts from the incomplete hearing, citing the overriding mandate to resolve disputes fairly, quickly, and cost-efficiently, and noting the extensive delays and impending closure of the Dispute Resolution Services.

The applicant was previously found to have participated in a staged motor vehicle accident.

The matter was returned to arbitration to determine the quantum of statutory accident benefits the applicant was required to repay to the insurer.

The arbitrator reviewed the evidence of payments made directly to the applicant for housekeeping, prescription medication, and attendant care.

The arbitrator ordered the applicant to repay $3,478.19 to the insurer, excluding a vehicle indemnity payment which fell outside the scope of statutory accident benefits.

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

In a previous arbitration and appeal, it was determined that the collision was staged, and the matter was returned to arbitration to determine the amount of benefits the applicant was required to repay to the insurer.

The applicant did not participate in the hearing.

Based on the insurer's evidence of cheques issued and cashed, the arbitrator ordered the applicant to repay $9,530.17 to the insurer.

The applicant was involved in three motor vehicle accidents and sought a determination that he was catastrophically impaired as a result of the second and third accidents.

A previous arbitration decision had already found him catastrophically impaired due to a mental or behavioural disorder arising from the first accident.

The arbitrator applied the 'but for' test of causation and found that the subsequent accidents did not make the applicant more catastrophically impaired, as he had already crossed the threshold for enhanced benefits.

The claim for catastrophic impairment arising from the later accidents was dismissed.

The appellant brought a motion to admit an occupational therapy assessment report as fresh evidence in a Variation proceeding.

The report had been commissioned by the respondent to assess the reasonableness of ongoing benefits and was disclosed to the appellant in a separate proceeding.

The Director's Delegate denied the motion, finding that the report did not address any of the issues that were before the arbitrator in the original 2014 arbitration decision, and was therefore not relevant to the Variation proceeding.

The applicant sought his expenses for a variation proceeding regarding statutory accident benefits.

The respondent insurer argued for reductions in both legal fees and disbursements, and a further reduction based on divided success.

The Director's Delegate reduced the claimed preparation time to reflect a 3.5:1 ratio to hearing time and reduced several disbursements, but declined to make a further reduction for divided success, noting a hearing was required regardless.

The insurer was ordered to pay $37,582.77 in expenses.

The applicant sought to amend a $5,000 expenses award in favour of the insurer following an appeal of an arbitration decision regarding statutory accident benefits.

The Director's Delegate found that the applicant's success on appeal was minor compared to the total claim, and the insurer's success on a cross-appeal regarding interest rates balanced out the applicant's gains.

The original $5,000 expenses award to the insurer was upheld.

The insurer was entirely successful on its appeal of an arbitration decision regarding statutory accident benefits.

The Director's Delegate had previously directed the insurer to claim a rounded figure for appeal expenses, explicitly excluding transcript costs.

The insurer claimed $3,000 for expenses but subsequently added a claim for disbursements of $7,309.19, which included $7,133.95 for transcripts.

Due to this overreach, the Director's Delegate reduced the amount awarded, ordering the respondent to pay $1,500 inclusive of fees, disbursements, and HST.

Following an arbitration decision regarding statutory accident benefits where the applicant achieved a greater degree of success, the applicant sought expenses.

The arbitrator considered the criteria under the Insurance Act and the Dispute Resolution Practice Code, noting the insurer's failure to respond to settlement offers and refusal to engage in settlement discussions.

The arbitrator awarded the applicant expenses fixed at $12,037.37, inclusive of fees, disbursements, and HST.

The appellant sought to appeal a decision of a Director's Delegate that dismissed her application to vary or revoke an earlier arbitration order regarding statutory accident benefits.

The Director's Delegate held that under the Dispute Resolution Practice Code, there is no jurisdiction for one Director's Delegate to hear an appeal of another Director's Delegate's decision.

In the alternative, the appeal would be dismissed on the merits as the appellant failed to demonstrate any error of law.

The appeal was dismissed.

The insurer sought its legal expenses following the dismissal of the insured's appeal regarding an arbitration expenses decision.

The Director's Delegate denied the insurer's request for costs entirely, finding its submissions improper and vexatious.

The insurer had claimed expenses for the arbitration hearing over which the Delegate had no jurisdiction, sought an hourly rate only available to insured persons, and claimed transcript costs which are not recoverable under the rules.

Consequently, each party was ordered to bear their own expenses of the appeal.

Following the dismissal of the appellant's appeal of an arbitration order, the successful respondent sought its legal appeal expenses.

The Director's Delegate found that the respondent was completely successful and entitled to its expenses based on the outcome of the proceeding.

Noting that the appeal was neither long nor complex and was conducted jointly with the appellant's spouse's appeal, the Director's Delegate ordered the appellant to pay the respondent $2,500 inclusive of HST and disbursements.

The applicant sought to vary a previous arbitration order to increase his attendant care benefits to cover 24/7 care, alleging a material change in circumstances due to worsening mental and physical health following a 2003 motor vehicle accident.

The Director's Delegate found that while the applicant's mental and behavioural disorders had worsened, constituting a material change, he was far less disabled than he presented.

Relying on surveillance evidence and the respondent's occupational therapist, the Delegate concluded that 24/7 care was not reasonable or necessary, as the applicant did not pose a danger to himself or others and demonstrated independent functionality.

The Delegate increased the attendant care benefits to $1,445.75 per month to account for increased emotional support and cuing needs, but dismissed the claim for a special award.

Following the dismissal of the insurer's appeal regarding a catastrophic impairment determination, the insured sought her legal appeal expenses in the amount of $23,052.00.

The insurer submitted that $3,699.44 was reasonable.

The Director's Delegate found the issues were of average complexity and the appeal was conducted in one morning.

Based on reasonableness and average awards in similar cases, the Delegate ordered the insurer to pay $3,750.00 for appeal legal expenses, inclusive of HST and disbursements.

Following the dismissal of the appellant's appeal of an arbitration order, the respondent sought its legal appeal expenses.

The Director's Delegate found that the respondent was completely successful in resisting the appeal and was therefore entitled to its expenses based on the degree of success.

The respondent was awarded $2,500 inclusive of HST and disbursements.

The insurer appealed an Arbitrator's decision finding the insured catastrophically impaired, entitled to post-104 week income replacement benefits (IRBs), and awarding a special award of 35% for unreasonably withholding benefits.

The insurer argued the Arbitrator reversed the onus of proof and failed to properly consider causation, specifically the insured's pre-existing psychological issues stemming from childhood abuse.

The Director's Delegate dismissed the appeal, finding the Arbitrator properly applied the 'but for' test, correctly weighed the medical evidence, and reasonably concluded the insurer's reliance on flawed and inconclusive reports justified the special award.

The applicant sought expenses following an arbitration regarding statutory accident benefits arising from three motor vehicle accidents.

The arbitrator found that the applicant was more successful overall, having been deemed catastrophically impaired and awarded housekeeping benefits, despite mixed success on other issues.

The arbitrator awarded the applicant his expenses, applying a 3:1 ratio for preparation to hearing time, reduced by 20% to reflect the mixed success.

The insurer was ordered to pay $46,890.88 inclusive of fees, disbursements, and HST.