Administrative Law - OFSCDRS

The appellants, Intact Insurance Company and Belair Insurance Company Inc., appealed preliminary orders of an arbitrator refusing to stay 15 separate arbitration proceedings for statutory accident benefits.

The appellants sought a stay on the basis of a concurrent court action alleging fraud against the medical assessment centres involved in the claims, and alternatively, for two respondents, based on their failure to attend examinations under oath.

The Director's Delegate combined the appeals and accepted the appeal regarding the concurrent court action, finding it raised a novel and important question of law regarding the application of the RJR-MacDonald test for a stay in the tribunal context.

However, the Delegate rejected the appeal regarding the examinations under oath, finding the arbitrator did not err in law and the issue of the specific remedy under section 33 of the Schedule had not yet been addressed.

The Delegate denied the appellants' request for a stay of the arbitrator's orders pending the appeal.

The insurer appealed an arbitration decision that prevented it from disputing the calculation of the insured's income replacement benefits on the basis of res judicata.

In a prior arbitration, the daily rate of the benefits was determined.

The insurer subsequently sought to reduce the benefits by changing the pro-rating formula and deducting post-accident earnings, issues it had not raised previously.

The Director's Delegate dismissed the appeal, finding that under section 287 of the Insurance Act, benefits cannot be reduced without a change in circumstances or new evidence, and that res judicata applied because the insurer could have raised these calculation issues at the first arbitration.

The appellant appealed an arbitrator's pre-hearing order requiring her to produce all photographs from her private Facebook profile.

The Director's Delegate found that the arbitrator erred in law by applying the 'semblance of relevance' test, holding that the correct test under the Statutory Powers Procedure Act and the Dispute Resolution Practice Code is 'relevance and reasonableness'.

The Delegate also held that private Facebook photographs are not a prima facie producible class of documents.

However, because the appellant's public Hi5 account contained photographs of her ziplining, which were relevant to her claimed inability to perform certain activities, the Delegate concluded that the private Facebook photographs were relevant and reasonably necessary in this specific case.

The appeal was dismissed and the production order was confirmed.

The Insurer brought a motion to stay the arbitration proceeding, along with 14 other related cases, pending the resolution of a civil action it commenced against several rehabilitation facilities for alleged fraud and unjust enrichment.

The Insurer argued that a stay was necessary to prevent a multiplicity of proceedings and an abuse of process.

The Arbitrator applied the RJR-MacDonald test and dismissed the motion, finding that the Insurer failed to establish that it would suffer irreparable harm or that allowing the arbitration to proceed would constitute an abuse of process.

The Arbitrator noted that the civil action involved different parties and issues, and that the Insurer could still challenge the credibility of the facilities' evidence in the arbitration.

The insurer brought a motion to stay the FSCO arbitration proceedings of the applicant and fourteen others, arguing that it had commenced a civil action against several rehabilitation facilities for alleged fraud and unjust enrichment.

The insurer sought the stay to avoid a multiplicity of proceedings and inconsistent findings.

The arbitrator applied the RJR-MacDonald test and found that the insurer failed to establish irreparable harm or that proceeding would constitute an abuse of process.

The motion for a stay was dismissed.

The applicant died prior to mediation and the filing of an application for arbitration for statutory accident benefits.

The paralegal filed the application in the deceased's name without disclosing her death or obtaining authorization from a legally appointed estate representative.

The arbitrator held that the application was a nullity because it was brought without authorization from anyone legally entitled to bind the estate.

The arbitrator reserved the final determination on whether the paralegal should personally pay the insurer's expenses to allow the deceased's son an opportunity to make submissions.

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

The parties were unable to resolve their disputes through mediation, and the applicant applied for arbitration.

The applicant failed to attend the pre-hearing discussion, motion, and the arbitration hearing despite receiving proper notice.

Pursuant to section 7(1) of the Statutory Powers Procedure Act and Rule 37.7 of the Dispute Resolution Practice Code, the hearing proceeded in the applicant's absence.

The arbitrator dismissed the applicant's claims for benefits as he failed to present evidence to establish his entitlement.

The applicant was ordered to pay $1,000 for the insurer's arbitration expenses.

The appellant appealed an arbitrator's decision dismissing her claims for statutory accident benefits and awarding expenses to the insurer following a rear-end collision.

The arbitrator had found that the appellant suffered a mild whiplash injury from which she recovered, and that her ongoing physical and psychological issues were attributable to pre-existing conditions rather than the accident.

On appeal, the Director's Delegate dismissed the appeal, finding that the arbitrator's conclusions on causation were factual determinations supported by the medical evidence.

The Delegate also rejected the appellant's procedural arguments, including claims of bias and the refusal to order the insurer to pay for transcripts from a previous arbitration, concluding that the arbitrator properly controlled the hearing and afforded the appellant a reasonable opportunity to present her case.

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

The applicant failed to attend the pre-hearing discussion and the arbitration hearing, despite receiving proper notice.

The arbitrator proceeded in the applicant's absence pursuant to the Statutory Powers Procedure Act and the Dispute Resolution Practice Code.

As the applicant presented no evidence to meet his burden of proof, his claims for benefits and a special award were dismissed.

The applicant was ordered to pay the insurer's arbitration expenses in the amount of $1,035.61.

The appellant Fund appealed an Arbitrator's preliminary decision finding that the respondent was involved in an 'accident' as defined in the Statutory Accident Benefits Schedule.

The respondent was injured after falling to the ground when a taxi van she was standing next to suddenly drove off.

The Fund argued the Arbitrator misapprehended the evidence, misapplied the definition of accident, and committed procedural errors.

The Director's Delegate dismissed the appeal, holding that the Arbitrator's findings of fact were supported by the evidence and that there was no palpable and overriding error, denial of a fair hearing, or reasonable apprehension of bias.

The respondent was injured while working as a parking lot attendant and applied for workers' compensation benefits, which were denied due to a lack of medical documentation showing personal injury.

He then sought statutory accident benefits from his automobile insurer.

The insurer denied the claim on the basis that the respondent was entitled to workers' compensation benefits.

The Arbitrator found the respondent could proceed with his claim for statutory accident benefits.

On appeal, the Director's Delegate reversed the decision, holding that the respondent's failure to prove personal injury before the Board did not entitle him to claim statutory accident benefits, as the Board had exclusive jurisdiction over the workplace accident.

The appellant was injured in a motor vehicle accident and applied for non-earner benefits, which the respondent insurer denied.

On the eve of the arbitration hearing, the appellant served updated medical reports opining that she suffered a complete inability to carry on a normal life.

The respondent requested an adjournment and a stay to conduct an orthopaedic insurer medical examination (IME), which the arbitrator granted.

On appeal, the Director's Delegate rescinded the stay and remitted the matter for a new hearing date.

The Delegate found that the arbitrator erred in law by failing to consider the strict criteria for adjournments and late service of documents under the Dispute Resolution Practice Code, noting that the respondent had ample prior opportunity to request an IME and that the updated reports did not constitute extraordinary circumstances justifying a delay.

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

After filing the application for arbitration, the applicant failed to communicate with his representative or attend scheduled pre-hearings.

The representative brought a motion to be removed from the record, and the insurer brought a motion to dismiss the claim without a hearing.

The arbitrator granted the representative's motion to be removed due to a breakdown in the relationship.

Rather than dismissing the claim as frivolous or vexatious under Rule 68, the arbitrator deemed the application withdrawn under Rule 70.3 due to the applicant's non-participation.

The applicant was ordered to pay $1,000 in expenses to the insurer for failing to attend proceedings.

The appellant appealed an arbitrator's decision dismissing his claims for income replacement benefits, housekeeping expenses, and medical and rehabilitation expenses following a 1997 motor vehicle accident.

The appellant argued that the insurer's failure to provide proper notice under sections 37 and 49 of the Schedule entitled him to automatic reinstatement of benefits, and that the arbitrator made numerous errors of fact and law, including ignoring medical evidence and demonstrating bias.

The Director's Delegate dismissed the appeal, holding that inadequate notice does not automatically entitle an insured to benefits, and that the arbitrator's findings of fact regarding the appellant's lack of credibility and failure to meet the disability tests were supported by the evidence.

The Delegate also found no reasonable apprehension of bias and affirmed that appeals under section 283(1) of the Insurance Act are restricted to questions of law.

An application for arbitration for statutory accident benefits was filed in the name of a minor by an agent.

The insurer brought a motion to dismiss the application on the basis that the minor lacked the capacity to authorize the proceeding.

The arbitrator found that the retainer agreement was void due to the applicant's minority and that the agent, having acted without valid authorization, was the actual applicant.

The arbitration was dismissed, and the agent was given an opportunity to respond to the insurer's claim for expenses.

The applicants, husband and wife, were injured in a motor vehicle accident and filed separate applications for arbitration regarding statutory accident benefits.

A Commission case administrator purported to combine the applications without following the notice and consent requirements of the Dispute Resolution Practice Code and the Statutory Powers Procedure Act.

At a pre-hearing discussion, the arbitrator found the administrative combination invalid but, exercising adjudicative discretion and with the consent of both parties, formally ordered the proceedings combined to avoid inconsistent results, save costs, and promote efficiency given the overlapping facts and witnesses.

The appellant appealed an arbitration decision regarding statutory accident benefits.

During the appeal, the appellant's non-lawyer agent brought a motion alleging institutional bias against the Financial Services Commission of Ontario.

The agent repeatedly failed to comply with procedural orders, made incoherent submissions, and demonstrated open contempt for the tribunal.

The Director's Delegate ordered the agent excluded from the proceeding pursuant to section 23(3) of the Statutory Powers Procedure Act, finding him incompetent to properly represent the appellant and failing to comply with the duties of an advocate.

The applicants were injured in a motor vehicle accident in California and sought statutory accident benefits from the Motor Vehicle Accident Claims Fund.

The Fund brought a motion arguing that a FSCO arbitrator lacked jurisdiction to interpret section 6 of the Motor Vehicle Accident Claims Act and section 268 of the Insurance Act, and that the arbitration duplicated a Superior Court action.

The arbitrator dismissed the motion, finding that section 20(2) of the Insurance Act grants arbitrators exclusive jurisdiction to determine all questions of fact or law in proceedings before them, including interpreting the relevant statutes.

The arbitrator also found that the arbitration for accident benefits did not duplicate the tort action in the Superior Court.

The appellant insurer appealed an arbitration order finding that the respondent was not precluded from receiving statutory accident benefits.

The insurer argued that the respondent's election to bring a tort action instead of claiming workers' compensation benefits was made primarily for the purpose of claiming accident benefits, as she had run a red light and her tort action was unlikely to succeed.

The Director of Arbitrations upheld the arbitrator's decision, finding that the arbitrator correctly applied the test under section 59(2) of the SABS-1996.

The arbitrator's factual finding that the respondent honestly believed she had a green light at the time she commenced her action, and thus made her election in good faith, was supported by the evidence and contained no error of law.

The appeal was dismissed.

The Ministry of Finance, acting as an intervenor, brought a motion to introduce new evidence in the form of an affidavit from a former Director of Arbitrations.

The underlying appeal involved a challenge by the insurer to the dispute resolution system based on alleged institutional bias.

The insurer and another intervenor objected to portions of the affidavit referring to historical reports and special award statistics.

The Director of Arbitrations allowed the motion, finding the historical context relevant to the institutional bias issue and noting that the insurer had the opportunity to cross-examine the affiant.

The affidavit was admitted in its entirety.