Administrative Law - OFSCDRS

The appellant appealed an Arbitrator's decision denying her claims for catastrophic impairment, attendant care, caregiver, medical, and housekeeping benefits following a 2009 motor vehicle accident.

The appellant argued the Arbitrator provided inadequate reasons, applied incorrect legal tests for burden of proof and causation, and erred in weighing evidence and assessing credibility.

The Director's Delegate dismissed the appeal, finding that the Arbitrator's reasons were adequate, the correct legal tests were applied, and the credibility findings were supported by ample evidence.

The Arbitrator's decision was confirmed and costs of $3,390 were awarded to the respondent.

The insurer appealed an arbitrator's decision finding the insured catastrophically impaired and entitled to medical benefits following a 2013 motor vehicle accident.

The insured had significant pre-existing physical and psychological impairments from prior accidents in 2002.

The Director's Delegate allowed the appeal, finding that the arbitrator erred in law by applying a 'material contribution' test for causation instead of the required 'but for' test.

The Delegate noted that the insured was already catastrophically impaired prior to the 2013 accident, meaning the accident could not have caused the catastrophic impairment.

Furthermore, the arbitrator breached principles of fundamental justice by refusing to even consider the insurer's request for an adjournment after the insured served a 90-page medical report just 31 days before the hearing, improperly fettering her discretion based on the impending closure of the tribunal.

The insured's claims were dismissed and costs were awarded to the insurer.

The insured and the insurer both appealed an arbitration decision regarding statutory accident benefits arising from multiple motor vehicle accidents.

The Director's Delegate found that the Arbitrator breached the rules of natural justice by admitting late affidavits from the insurer without allowing the insured to cross-examine the affiant, and by failing to address the insured's submissions on limitation periods.

Furthermore, the Arbitrator's reasons for finding the insured catastrophically impaired were deemed conclusory and inadequate, as they failed to apply the 'but for' causation test or the proper three-stage process under the AMA Guides for assessing psychiatric impairment.

The appeal and cross-appeal were allowed, and the matter was remitted to arbitration for a fresh re-hearing.

The insurer appealed an arbitrator's preliminary decision finding the insured catastrophically impaired.

The insurer argued the arbitrator lacked jurisdiction to make a stand-alone catastrophic impairment determination when no specific accident benefits were claimed.

The Director's Delegate dismissed the appeal, holding that a catastrophic impairment determination is a necessary gateway issue within an arbitrator's jurisdiction under the Insurance Act.

The Delegate also found no error of law in the arbitrator's preference for the insured's expert evidence over the insurer's experts, nor in the arbitrator's application of the AMA Guides regarding the assessment of pain in mental and behavioral disorders.

The appellant applied to vary or revoke previous orders that dismissed his application for arbitration as an abuse of process.

He claimed to have new evidence, consisting of medical reports and correspondence from his treating physicians dating back to 1997 and 1998.

The Director's Delegate dismissed the application, finding that the proposed evidence was not 'new' as it could have been obtained earlier with due diligence.

Furthermore, the evidence would not have changed the outcome, as it related to the merits of the claim rather than the finding of abuse of process.

The appellant was ordered to pay $2,500 in expenses.

The applicant sought death benefits following the death of her spouse in a motor vehicle accident.

At the hearing, the insurer objected to the applicant testifying because her counsel failed to provide a witness list in advance, contrary to a pre-hearing agreement and Rule 41 of the Dispute Resolution Practice Code.

The arbitrator ruled that the applicant could testify, noting that the insurer was prepared for cross-examination, claimed no prejudice, and procedural fairness required allowing the applicant to present her case fully.

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

A dispute arose and the applicant applied for arbitration at FSCO.

The applicant subsequently sought to add the cost of two examinations to the arbitration.

The insurer brought a preliminary issue motion arguing that FSCO lacked jurisdiction to add issues after April 1, 2016, due to legislative amendments transferring jurisdiction to the Licence Appeal Tribunal.

The arbitrator dismissed the insurer's motion, finding that FSCO has a longstanding practice of adding issues to existing arbitrations, which is supported by the Dispute Resolution Practice Code, the doctrine of legitimate expectation, and the Statutory Powers Procedure Act.

Adding the issues avoids a multiplicity of proceedings and does not cause significant prejudice to the insurer.

The appellant, a minor, appealed an Arbitrator's decision ordering him to pay $3,172.50 in arbitration expenses to the respondent insurer after his application for arbitration was withdrawn.

The Director's Delegate allowed the appeal, finding that the Arbitrator failed to provide adequate reasons for the expense award, which constituted a breach of natural justice.

The Arbitrator had merely stated the parties' positions and a bald conclusion without explaining the basis for finding the expenses reasonable.

The decision was rescinded and the matter remitted for a rehearing before a different Arbitrator.

The respondent on appeal moved for an interim order to exclude two affidavits and an interim decision from the appeal record, arguing they constituted new evidence.

The Director's Delegate denied the motion, finding that the interim decision was a public record and not evidence, and that the affidavits were relevant to the appellant's allegations of procedural unfairness and denial of natural justice at the original hearing.

The documents were allowed to remain part of the appeal record.

The applicant's counsel brought a motion to be removed from the record after the applicant failed to communicate or provide instructions following mediation.

The arbitrator granted the motion to withdraw.

The insurer subsequently brought a motion to dismiss the arbitration as abandoned and vexatious, noting the applicant's failure to attend the pre-hearing or respond to communications.

The arbitrator found that the applicant had effectively abandoned his claims and that continuing the arbitration would be an abuse of process.

The arbitration was dismissed, and the applicant was ordered to pay the insurer's expenses fixed at $2,772.07.

The appellant insured appealed an arbitrator's order dismissing his claim for statutory accident benefits due to his failure to attend an Examination Under Oath (EUO).

The Director's Delegate allowed the appeal, finding that the arbitrator lacked jurisdiction to stay or dismiss an arbitration proceeding for failure to attend an EUO, as EUOs are part of the insurer's adjusting process, not the adjudicative process.

The appropriate remedy for non-compliance under the Statutory Accident Benefits Schedule is the suspension of benefits for the period of non-compliance, not the dismissal of the arbitration.

The stay was lifted and the matter returned to arbitration.

The appellant appealed an Arbitrator's decision that he was not involved in an 'accident' under the Statutory Accident Benefits Schedule.

The insurer had denied benefits based on expert evidence from an Electronic Data Recorder suggesting the collision was staged.

The Director's Delegate allowed the appeal, finding that the Arbitrator erred in law.

Even if the appellant intentionally accelerated into the other vehicle, he was still driving the car, which meets the ordinary and well-known use test for an 'accident'.

The issue of wilful misrepresentation remained to be decided.

The appellant insurer sought a stay of an arbitrator's order awarding the respondent insured over $360,000 in attendant care and housekeeping benefits, interest, a special award, and legal expenses.

The insurer argued it was denied procedural fairness because it was not given notice that the arbitrator would determine entitlement to and quantum of these benefits and the special award at the expense hearing.

The Director's Delegate found strong substance to the argued error of law regarding procedural fairness and granted a stay of the benefits, interest, special award, and a portion of the legal expenses pending the appeal.

The respondent's motion to estop the appeal and the appellant's cross-motion to strike affidavit material were dismissed.

The appellant sought a stay of an arbitrator's order awarding legal expenses to the respondent insurer, pending an appeal.

The Director's Delegate granted the stay, finding special circumstances existed because the arbitrator made the expense order without receiving submissions and without providing reasons, which constituted a breach of natural justice.

The stay was granted as the appellant would suffer hardship if required to pay the expenses immediately, while the respondent would suffer no prejudice.

The insurer brought a preliminary issue motion arguing that the applicant's claims for attendant care and medical benefits were time-barred.

The applicant had requested the addition of these issues to an existing arbitration by letter within 90 days of the mediator's report.

The arbitrator held that the longstanding practice of adding issues by letter, rather than requiring a new formal application, was permitted under the Dispute Resolution Practice Code and created a legitimate expectation.

With the exception of one medical benefit claim that was not mediated within two years of denial, the claims were found to be timely and were added to the arbitration.

The appellant sought to appeal an arbitrator's preliminary decision that found his injuries did not result from an accident as defined in the Statutory Accident Benefits Schedule.

The appellant also requested a stay of any order regarding arbitration expenses pending the appeal.

The Director's Delegate found that the appeal did not require leave as it effectively determined all substantive issues.

However, applying the Armstrong criteria, the Delegate declined to grant a stay of the arbitrator's expense order, noting that a stay is an exceptional remedy and the arbitrator had not yet issued an order requiring monetary payment.

The stay request was dismissed without prejudice to renew.

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

After her representative was removed from the record due to a breakdown in the solicitor-client relationship, the applicant failed to participate in subsequent proceedings or communicate with the Commission.

The insurer brought a motion to dismiss the application as frivolous, vexatious, or commenced in bad faith under Rule 68.1 of the Dispute Resolution Practice Code, or alternatively, to deem it withdrawn under Rule 70.

The arbitrator declined to dismiss the application under Rule 68.1, noting that such a finding requires an assessment of the merits, which was not possible here.

However, the arbitrator deemed the application withdrawn under Rule 70 due to the applicant's prolonged failure to participate.

The applicant was ordered to pay $500 in expenses to the insurer.

The appellant insurer sought to appeal an arbitrator's preliminary decision which found that the respondent insured had sustained a catastrophic impairment following a motor vehicle accident.

The arbitrator based this finding on the respondent's Glasgow Coma Scale scores of 9 and a diagnosis of concussion, applying the binding legal test that the severity of the brain injury is irrelevant if the statutory GCS criteria are met.

The Director's Delegate rejected the interlocutory appeal, finding no strong grounds to depart from established case law and concluding that the most efficient resolution was to defer any appeal until all issues in the arbitration were finally decided.

The Delegate also refused to stay the arbitrator's order, noting the hardship a stay would cause the respondent whose minor injury benefits had been exhausted.

The Appellant appealed an arbitration decision that denied her claim for post-104 week income replacement benefits (IRBs) and ordered each party to bear their own legal expenses.

The Director's Delegate upheld the denial of IRBs, finding no error of law in the Arbitrator's assessment of the evidence and credibility, noting that an appellate officer cannot retry the case or substitute findings of fact.

However, the Delegate found that the Arbitrator breached procedural fairness by deciding the issue of legal expenses without providing the parties an opportunity to make submissions.

The legal expenses issue was remitted to arbitration for redetermination.

The Appellant was awarded $500 in appeal costs.

The appellant sought a stay of an arbitrator's order requiring her to pay the respondent's legal expenses, pending her appeal of the decision denying her attendant care benefits.

The Director's Delegate applied the Armstrong criteria and found that the appeal was bona fide, had apparent substance regarding the interpretation of subsection 3(8) of the SABS, and that the appellant would suffer undisputed hardship if the stay was refused.

The Delegate also noted the arbitrator failed to receive submissions on expenses, raising natural justice concerns.

The stay of the expense order and the arbitration expense hearing was granted.