Administrative Law - OFSCDRS

The appellant was injured in a motor vehicle accident and applied for statutory accident benefits, claiming a catastrophic impairment.

An arbitrator found the appellant did not sustain a catastrophic impairment and directed the parties to request an expense hearing if they could not agree on legal expenses.

The appellant appealed the preliminary decision and sought a stay of the expense hearing.

The Director's Delegate accepted the appeal, finding it raised important and novel issues, including whether impairments should be rated before future surgery.

The Delegate also granted a stay of the expense hearing, concluding it would be more cost-effective and efficient to determine the appeal first, as the expense hearing would likely duplicate the appeal issues.

The applicant was involved in three motor vehicle accidents and commenced a civil action against two insurers, Wawanesa and Belair, claiming various accident benefits.

He subsequently applied for arbitration at the Financial Services Commission of Ontario against Wawanesa only, seeking attendant care benefits, a determination of catastrophic impairment, and a special award.

Wawanesa brought a preliminary motion to bar the arbitration on the basis of the rule against multiplicity of proceedings.

The Arbitrator applied the principles from King v. Royal Insurance, finding that the issues in the arbitration and the civil action were substantially similar and inextricably intertwined.

To avoid the risk of inconsistent results and duplication of proceedings, the Arbitrator stayed the arbitration pending the outcome of the civil action.

The applicant, a former counsel for an insured person, appealed and applied for variation/revocation of an arbitrator's order that he personally pay the insurer's arbitration expenses.

The arbitrator had found that the representative commenced the arbitration without authority and caused expenses to be incurred without reasonable cause.

On appeal, the Director's Delegate refused to admit fresh evidence, finding it could have been adduced at the arbitration had the representative not relied on client confidentiality.

The Director's Delegate upheld the arbitrator's finding that the representative was personally liable for the expenses under s. 282(11.2)(c) of the Insurance Act, as the arbitration should not have been commenced.

The appeal and application for variation/revocation were dismissed.

The appellant sought to appeal an arbitrator's decision regarding legal expenses following a settlement of his statutory accident benefits claim.

The respondent argued the appeal was filed out of time.

The Director's Delegate found reasonable grounds to extend the time for the appeal, noting the appellant's early intention to pursue the issue.

The Delegate also ruled on the admissibility of fresh evidence, refusing an affidavit but allowing certain correspondence and exhibits to form part of the appeal record.

The applicant brought a motion requesting that the arbitrator recuse himself on the basis of a reasonable apprehension of bias.

The applicant argued that a prior letter from the arbitrator, which recorded a procedural agreement between the parties, lacked an evidentiary foundation and therefore indicated bias.

The arbitrator dismissed the motion, finding that the letter itself was the record of the agreement reached during a telephone conference, and an informed person would not conclude that the arbitrator would not decide the issues fairly.

The appellant, a paralegal representative, appealed an arbitrator's order requiring him to personally pay the insurer's legal expenses of $2,910.41.

The arbitrator found that the appellant had commenced an arbitration proceeding for statutory accident benefits without the insured's authority, constituting an abuse of process.

On appeal, the appellant argued the arbitrator lacked jurisdiction to award costs against him once he was removed from the record.

The Director's Delegate dismissed the appeal, holding that section 282(11.2) of the Insurance Act applies to anyone who represented or purported to represent a party at some point in the proceeding, and that the arbitrator also had residual power under section 23(1) of the Statutory Powers Procedure Act to prevent abuse of process.

The appellant insurer appealed an arbitrator's decision awarding the respondent income replacement and housekeeping benefits following a motor vehicle accident.

The insurer argued the arbitrator failed to apply the proper causation test and failed to provide adequate reasons, particularly regarding the respondent's pre-existing depression and medical history.

The Director's Delegate dismissed the appeal, finding the arbitrator correctly applied the material contribution test and properly treated the respondent as a 'thin skull' rather than a 'crumbling skull' case.

The Delegate held that the arbitrator's factual findings were supported by the evidence and her reasons were adequate.

The appellant, a legal representative, appealed an arbitrator's order holding him personally liable for the insurer's legal expenses due to his client's non-attendance at pre-hearings.

The representative sought to withdraw as counsel of record due to a conflict of interest and a breakdown in the solicitor-client relationship.

The Director's Delegate permitted the withdrawal.

On the issue of standing, the Delegate held that a representative against whom an expense order is made has a substantial and direct interest in the outcome, entitling them to party status under section 5 of the Statutory Powers Procedure Act for the purpose of appealing the expense order.

The appellant appealed an arbitrator's decision dismissing her claims for income replacement benefits, medical and rehabilitation benefits (including a Tempur mattress and laptop computer), a neuropsychological re-assessment, and a special award under the Statutory Accident Benefits Schedule.

She also appealed the arbitrator's order awarding the insurer $15,344.05 in expenses.

The Director's Delegate dismissed the appeal, finding no breach of natural justice or procedural fairness by the arbitrator.

The Delegate upheld the arbitrator's factual findings that the appellant was not disabled from her pre-accident employment, that the claimed medical and rehabilitation items were not reasonable and necessary, and that the appellant's conduct unnecessarily prolonged the hearing, justifying the expenses award.

The appellant appealed an arbitrator's decision finding that he had entered into a binding full and final settlement of his statutory accident benefits claim.

The arbitrator had held that the appellant's failure to personally sign the release did not invalidate the settlement.

On appeal, the Director's Delegate found that the arbitrator erred in law by applying the wrong regulation.

Under the applicable Settlement Regulation for Settlements Made on or After March 1, 2002, the cooling-off period for rescinding a settlement does not commence until the insured person personally signs the release.

Because the appellant never signed the release, the settlement was not binding and the cooling-off period had not expired.

The appeal was allowed and the matter remitted to arbitration.

The insurer sought to appeal an arbitrator's preliminary order excluding an expert medical report that was served only seven days prior to the start of the arbitration hearing, contrary to the 30-day requirement in Rule 39.1 of the Dispute Resolution Practice Code.

The Director's Delegate rejected the appeal, finding no extraordinary circumstances to justify an exception to the rule against appealing preliminary or interim orders before the arbitration is finally decided.

The Delegate emphasized the legislative deference given to arbitrators' discretionary procedural decisions and the importance of timely disclosure to ensure fairness and efficiency.

The Appellant insurer brought a motion to stay an arbitration order that awarded the Respondent non-earner benefits, pending its appeal of that order.

The Director's Delegate reviewed the criteria for granting a stay, noting that stays of arbitration orders are exceptional under the Insurance Act.

Considering the long history of the matter, the Appellant's failure to comply with the order before seeking a stay, the lack of alleged hardship to the Appellant, and questions regarding the official status of the unsworn hearing transcripts relied upon, the Delegate found no basis to exercise discretion to grant a stay.

The motion was dismissed.

The solicitor for the deceased insured commenced an arbitration for accident benefits (death and funeral benefits) in the name of the deceased's estate.

The insurer brought a motion to dismiss the arbitration on the basis that the estate had no legal standing to claim such benefits, which are payable only to dependants personally.

The arbitrator dismissed the arbitration as a nullity and a frivolous and vexatious proceeding.

Finding that the solicitor commenced the proceeding on behalf of a non-existent principal and advanced a claim with no possibility of success, the arbitrator ordered the solicitor to personally pay the insurer's legal expenses pursuant to section 282(11.2) of the Insurance Act.

The insurer brought a motion to have the arbitrator recuse himself from hearing a preliminary issue, arguing that his involvement in the pre-hearing conference created a reasonable apprehension of bias under Rule 33.5 of the Dispute Resolution Practice Code.

The arbitrator dismissed the motion, finding that the pre-hearing discussions did not involve concrete settlement offers that would compromise the outcome.

The arbitrator held that the statutory framework under the Insurance Act and the Code contemplates an ongoing case management role for the pre-hearing arbitrator, and the insurer failed to meet the high threshold for demonstrating a real likelihood or probability of bias.

The applicant was successful in a preliminary issue hearing determining he was involved in an accident.

He subsequently sought his expenses.

The insurer requested an adjournment of the expense hearing to bring a motion for the arbitrator's recusal based on alleged bias.

The arbitrator denied the adjournment, finding the bias motion was brought over a year after the alleged events and without proper notice.

The arbitrator awarded the applicant his legal fees and disbursements for the preliminary issue hearing, as well as costs for the unnecessary expense hearing and frivolous bias motion.

The insurer brought a motion to dismiss the arbitration and for costs against the applicant and his counsel.

The applicant had failed to attend four scheduled proceedings, including pre-hearings and the motion itself, and his counsel had breached an undertaking to produce him.

The arbitrator found that the applicant's complete failure to participate rendered the continuation of the arbitration vexatious and an abuse of process.

The arbitration was dismissed under the Statutory Powers Procedure Act.

The arbitrator also ordered the applicant and his counsel to be jointly and severally liable for the insurer's expenses, finding that the counsel's conduct fell below expected standards and caused unnecessary costs.

The insurer appealed an arbitrator's decision awarding the respondent attendant care and housekeeping benefits following a motor vehicle accident on a TTC bus.

The insurer argued the arbitrator breached natural justice by relying on an excerpt of an occupational therapy report contained within a DAC report, and erred in finding the respondent credible despite her contradictory evidence regarding income replacement benefits.

The Director's Delegate dismissed the appeal, finding no breach of natural justice as the insurer was aware of the report and could have called its author.

The Delegate also found no error of law in the arbitrator's credibility assessment, as it was based on the totality of the evidence and the inherent plausibility of the respondent's claim for assistance.

The applicant failed to attend two scheduled arbitration pre-hearings despite an undertaking by his counsel to arrange a date when he could attend.

The insurer sought expenses for costs thrown away.

The arbitrator found that the applicant's counsel breached an enforceable undertaking to the tribunal and failed to take sufficient positive action to ensure compliance.

The arbitrator concluded that the counsel's conduct amounted to an abuse of process and caused expenses to be wasted without reasonable cause.

The insurer was awarded $800 in expenses, payable jointly and severally by the applicant and his counsel of record.

The applicant claimed various statutory accident benefits, interest, a special award, and arbitration expenses following a motor vehicle accident.

Neither the applicant nor her representative attended the scheduled arbitration hearing, despite having received proper notice.

The arbitrator proceeded in their absence pursuant to the Statutory Powers Procedure Act.

As the applicant tendered no evidence, she failed to discharge her burden of proof.

All claims for benefits, interest, a special award, and expenses were dismissed.

The insurer appealed an arbitrator's decision awarding the claimant non-earner, medical, attendant care, and housekeeping benefits following a bicycle-streetcar collision.

The central issue at arbitration was whether the claimant's post-accident decline was caused by the accident or the natural progression of a pre-existing polyneuropathy.

The Director's Delegate allowed the appeal and ordered a new hearing, finding that the arbitrator failed to provide adequate reasons for rejecting the insurer's medical evidence and accepting the claimant's medical evidence on the issue of causation.