Administrative Law - OFSCDRS

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 insurer appealed an arbitrator's decision finding the respondent catastrophically impaired following a motor vehicle accident.

The insurer argued the arbitrator erred in law by allowing the respondent to file expert reports after the hearing commenced and by misapplying the AMA Guides in assessing whole person impairment and mental/behavioral disorders.

The Director's Delegate dismissed the appeal, finding no error of law in the arbitrator's procedural rulings under Rule 39 of the Dispute Resolution Practice Code, as the insurer had first filed late reports.

The Delegate also upheld the arbitrator's substantive findings, concluding they were based on reasonable assessments of expert credibility and evidence.

State Farm appealed an arbitrator's Decision on Expenses and a subsequent Decision on a Motion (clarification order) regarding statutory accident benefits.

The Director's Delegate found that the arbitrator erred in law and violated procedural fairness by determining entitlement to Attendant Care, Housekeeping and Home Maintenance, and a special award, as these were not issues in dispute and no notice was given.

The Delegate also found the arbitrator lacked jurisdiction to issue the clarification order while the original decision was under appeal, and that the expenses awarded exceeded the maximums permitted by the Expense Regulation.

Both decisions were rescinded in their entirety.

The appellant sought to reopen her arbitration file to claim further housekeeping benefits.

The Arbitrator dismissed the proceeding without a hearing, finding that the Commission was functus based on previous minutes of settlement.

On appeal, the Director's Delegate found that the Arbitrator erred in law by failing to provide notice or an opportunity for the appellant to make submissions before dismissing the proceeding, contrary to the Statutory Powers Procedure Act and the Dispute Resolution Practice Code.

The appeal was allowed and the matter returned to arbitration.

The appellant insurer appealed an Arbitrator's decision finding that the respondent's election to opt out of Workplace Safety and Insurance Act benefits was not made primarily for the purpose of claiming statutory accident benefits.

The insurer argued that the respondent's tort claim in North Carolina was not viable due to contributory negligence and the involvement of an unidentified driver.

The Director's Delegate dismissed the appeal, holding that the Arbitrator's conclusions regarding the respondent's bona fide intent to pursue a tort claim were findings of fact supported by evidence, which an appellate body limited to reviewing errors of law cannot overturn.

The appellant appealed an arbitrator's decision denying an adjournment request, permitting the withdrawal of her application for accident benefits, and awarding no costs.

The appellant argued the arbitrator failed to accommodate her under the Human Rights Code, failed to act on the insurer's non-compliance with benefit information requirements, and erred in denying costs.

The Director's Delegate dismissed the appeal, finding no error of law in the arbitrator's handling of the accommodation request, noting the benefit information issue was obiter dicta, and upholding the costs determination.

The appellant appealed an arbitrator's decision refusing to recuse himself from a Statutory Accident Benefits Schedule arbitration on the grounds of reasonable apprehension of bias.

During a teleconference, the arbitrator had made comments suggesting the parties cooperatively agree to dates for an in-person insurer's examination, which the appellant argued demonstrated bias.

The Director's Delegate allowed the appeal, finding the arbitrator erred in law by misapplying the test for reasonable apprehension of bias from Wewaykum, improperly rationalizing his comments based on his own good faith intentions, and failing to provide intelligible reasons addressing uncontested affidavit evidence.

The arbitrator's order was set aside, and he was recused from further involvement in the file.

The parties cross-appealed an Arbitrator's decision awarding the insured person all claimed accident benefits, interest, expenses, and a special award.

The Director's Delegate found that the Arbitrator correctly ordered payment of medical benefits and income replacement benefits (IRBs) where the insurer completely failed to respond to the claims, pursuant to the plain meaning of the Statutory Accident Benefits Schedule.

However, the Arbitrator erred in ordering payment where the insurer's response was merely deemed improper, and in failing to calculate the net amount of IRBs payable after deducting post-accident income.

The Delegate also found that while a special award was justified due to the insurer's unreasonable delay, the Arbitrator erred by failing to fix the amount of the award with precision.

Several issues, including the quantum of IRBs and the special award, were remitted for re-hearing.

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 injured in a motor vehicle accident and sought accident benefits from the insurer.

After failing to attend multiple pre-hearing discussions, her counsel was removed from the record.

The applicant was ordered to confirm new representation or her intention to self-represent by a specific deadline, failing which the insurer could move to dismiss the arbitration.

The applicant failed to comply with the order.

The arbitrator granted the insurer's motion and dismissed the application for arbitration as an abuse of process under section 23 of the Statutory Powers Procedure Act.

The insurer appealed an arbitrator's decision regarding jurisdiction to calculate interest and the quantum of expert witness expenses.

The parties agreed on the expense amounts and that the arbitrator had jurisdiction to determine interest.

The Director's Delegate resolved the remaining interest calculation disputes, finding that no interest accrues on a special award prior to the date of the order, and that an earlier expense award against the claimant could not be set off against benefits until the final order determining the cause was issued.

The appellant appealed an arbitrator's decision dismissing her claims for statutory accident benefits.

The arbitrator had denied her request for an adjournment to seek new counsel after her previous counsel withdrew shortly before the hearing, and dismissed her claims when she left the hearing room.

The Director's Delegate allowed the appeal, finding that the late delivery of surveillance evidence and the recent withdrawal of counsel meant an adjournment should have been granted.

Furthermore, the appellant's ongoing efforts to retain counsel even after leaving the hearing room demonstrated she had not abandoned her claim.

The matter was remitted to arbitration for a new hearing.

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 allowed the appeal, finding that the arbitrator failed to provide adequate reasons for his decision and failed to fairly consider the evidence from both parties.

The arbitrator ignored or misinterpreted significant evidence from several experts, including those retained by the insurer, whose opinions supported the appellant's claims.

The matter was returned to arbitration for a fresh hearing before a different arbitrator.

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

The insurer denied certain benefits on the basis that the applicant's injuries fell within the Minor Injury Guideline (MIG), which caps medical and rehabilitation benefits at $3,500.

The applicant brought a preliminary issue hearing challenging the constitutionality of the MIG under the Charter.

The arbitrator found that the MIG's inclusion of 'clinically associated sequelae' and its requirement that pre-existing conditions be documented before the accident discriminated against individuals with chronic pain and undocumented pre-existing conditions, violating section 15(1) of the Charter.

The infringement was not justified under section 1.

The arbitrator read down the definition of 'clinically associated sequelae' to exclude chronic pain and severed the requirement for pre-accident documentation.

The appellants, minors injured in a motor vehicle accident, appealed an Arbitrator's decision dismissing their claim for a special award and ordering them to pay the insurer's expenses.

The Director's Delegate found that the Arbitrator breached natural justice by failing to provide reasons for the expenses award, rescinding that portion of the order and remitting it for a re-hearing.

However, the Delegate upheld the dismissal of the special award claim, finding the Arbitrator correctly concluded there was insufficient evidence that the insurer unreasonably withheld or delayed payments.

The Delegate also held that while the Arbitrator may have erred in applying witness notice rules to a party, the exclusion of the appellant's testimony had no bearing on the outcome.

The appellant, a licensed paralegal, appealed an Arbitrator's decision ordering him to personally pay a portion of the insurer's expenses after his client's application for arbitration was withdrawn.

The Arbitrator had found the application frivolous and vexatious.

On appeal, the Director's Delegate found that the appellant was not given a reasonable opportunity to make representations regarding his personal liability for expenses, as required by section 282(11.4) of the Insurance Act, because he was only notified of the claim against him the day before the hearing.

The appeal was allowed, the order for expenses against the appellant was set aside, and the issue was remitted for re-hearing.

The Applicant sought expenses following a successful arbitration for statutory accident benefits.

The arbitrator awarded $139,851.68 in expenses, applying the Dispute Resolution Practice Code and Expense Regulation to cap certain expert disbursements and applying a 4:1 preparation-to-hearing ratio for legal fees.

The arbitrator also held that he lacked jurisdiction to reopen the hearing to address the calculation of interest, as the previous arbitrator was functus officio after issuing the final order.

Both parties appealed an Arbitrator's decision regarding statutory accident benefits following a motor vehicle accident.

The Director's Delegate found that the Arbitrator breached procedural fairness by failing to provide adequate reasons for awarding attendant care, housekeeping, medical/rehabilitation benefits, and the cost of assessments.

The Delegate upheld the Arbitrator's finding that the accident caused the insured's shoulder injury and the award of income replacement benefits, but found no evidentiary basis for limiting the benefits to a three-month post-surgery period.

The Delegate also found the Arbitrator's dismissal of a special award to be self-contradictory given the finding that the insurer unreasonably withheld benefits.

The unsupported and unreasoned portions of the decision were rescinded and remitted for rehearing.

The respondent taxi driver was assaulted by a passenger, pushed, and slipped on ice while attempting to close the van door, resulting in a fractured leg.

The insurer appealed the arbitrator's decision that the incident constituted an 'accident' under the Statutory Accident Benefits Schedule.

The Director's Delegate dismissed the appeal, finding that the use or operation of the vehicle was a direct cause of the impairment and that the assault and slipping on ice were not intervening acts that broke the chain of causation.

The appellants appealed an arbitrator's decision finding that they were not involved in a 'legitimate accident' because the collision was staged.

The Director's Delegate allowed the appeal, finding that the arbitrator erred in law by requiring an accident to be 'accidental' to meet the statutory definition under the SABS.

Relying on the Court of Appeal's decision in Vijeyekumar, the Delegate held that the statutory definition of 'accident' includes intentional incidents, such as a staged collision, and that the insurer should have relied on the wilful misrepresentation provisions (s. 53) rather than arguing the incident was not an accident.