Ontario Financial Services Commission - Dispute Resolution Services

The insurer brought a motion to stay the arbitration proceeding regarding the applicant's catastrophic impairment claim until she attended a neuropsychological independent medical examination (IME).

The applicant opposed the motion, arguing the IME was not reasonably necessary as no brain injury was alleged, she had already attended multiple psychiatric IMEs, and the insurer had alleged fraud and terminated all benefits.

The arbitrator applied the factors from Bogic and Ramalingam, finding that while the insurer has a right to request IMEs, the balance of fairness favored the applicant.

The arbitrator noted the proximity of the motion to the scheduled hearing and the potential prejudice of delaying the resolution of the catastrophic impairment and fraud issues.

The motion for a stay was dismissed, and the hearing was ordered to proceed as scheduled.

The Applicant sought non-earner benefits following a 2002 motor vehicle accident.

The Insurer raised a preliminary issue that the claim was statute-barred under the two-year limitation period in s. 281.1(1) of the Insurance Act and s. 51(1) of the Schedule.

The Arbitrator found that the Insurer's Explanation of Benefits did not provide a clear and unequivocal denial of non-earner benefits, nor did it include the required notice of the dispute resolution process as mandated by Smith v. Co-operators.

Consequently, the limitation period was never triggered, and the Applicant was not precluded from proceeding to arbitration.

The insurer brought a motion for a stay of an arbitrator's order pending the determination of its appeal.

The arbitrator had ordered the insurer to pay for certain goods, services, and a catastrophic impairment assessment, finding that the insured's impairments were caused by a 2007 motor vehicle accident.

The insurer argued that the arbitrator applied the wrong legal test for causation ("material contribution" instead of "but for").

The Director's Delegate denied the request for a stay, finding that while the appeal raised a bona fide legal issue, the insurer failed to demonstrate that it would suffer imminent hardship if the stay were refused, and the potential hardship raised was purely speculative.

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

After failing to attend a pre-hearing discussion, a resumption of the pre-hearing, and the scheduled arbitration hearing, the arbitrator proceeded in the applicant's absence.

As the applicant bore the onus of proving entitlement and presented no evidence, the application for arbitration was dismissed.

The insurer was awarded $750 in expenses due to the applicant's failure to participate and advance the claim.

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

At the scheduled arbitration hearing, the applicant failed to attend and her representative was not prepared to call evidence.

The insurer requested that the application be dismissed.

The arbitrator dismissed the application due to the applicant's unexplained absence.

The insurer was awarded $1,200 in expenses.

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

After failing to participate in the arbitration process and losing contact with his counsel, who was subsequently removed from the record, the insurer brought a motion to dismiss the application.

The arbitrator found that the applicant had abandoned his claim, rendering it frivolous and vexatious under section 68 of the Dispute Resolution Practice Code.

The application for arbitration was dismissed without costs.

The applicant sought accident benefits following a motor vehicle accident but failed to attend scheduled medical examinations, pre-hearing conferences, and the arbitration hearing itself.

Her counsel was previously removed from the record after advising that the applicant had moved to Pakistan and could not be reached for instructions.

The arbitrator dismissed the application for arbitration due to the applicant's failure to participate and meet her onus of proof.

The insurer was awarded $4,592.83 in expenses for costs thrown away in defending the abandoned application.

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

After his counsel was removed from the record, the applicant failed to attend the scheduled arbitration hearing and a subsequent re-scheduled hearing.

The insurer requested that the application be dismissed and sought its expenses.

The arbitrator dismissed the application for arbitration due to the applicant's failure to participate and failure to meet his onus of proof.

The arbitrator awarded the insurer $3,871.03 in expenses for costs thrown away in defending the abandoned application.

The insurer raised a preliminary issue arguing that the insured was barred from proceeding to mediation and arbitration because he failed to attend a scheduled insurer's examination under section 44 of the Statutory Accident Benefits Schedule.

The arbitrator found that the examination had been cancelled by mutual consent because the insured had travelled to China, and the insurer made no subsequent attempts to reschedule it.

As there was no active examination for the insured to attend, he did not fail to comply with the Notice of Examination.

The insurer's motion was dismissed, and the insured was permitted to proceed to arbitration.

The applicant sought statutory accident benefits following a motor vehicle accident but failed to attend a pre-hearing discussion and the scheduled arbitration hearing.

The applicant's counsel also failed to attend.

The arbitrator proceeded in the applicant's absence pursuant to Rule 37.7 of the Dispute Resolution Practice Code.

As the applicant bore the onus of proving entitlement and presented no evidence, the application was dismissed.

The insurer was awarded $500.00 in expenses due to the applicant's failure to advance the application.

The applicants sought accident benefits following an alleged motor vehicle collision.

The insurer denied the claims, alleging the accident was staged and the applicants made material misrepresentations.

At a preliminary issue hearing, the arbitrator heard evidence from the applicants, the occupants of the other vehicle (who confessed to participating in a staged accident scheme), and accident reconstruction experts.

The arbitrator found the applicants' version of events highly improbable, noting inconsistencies between their testimony and the physical damage to the vehicles, the lack of independent witnesses, and the improbable behaviour of the passengers.

The arbitrator concluded the reported accident did not occur and dismissed the claims.

The Appellant appealed an arbitration decision denying her claims for statutory accident benefits.

At the oral appeal hearing, the Appellant raised a new ground of appeal based on section 38.2 of the 1996 Schedule, which had not been previously raised or briefed.

To ensure fairness and avoid litigation by stealth, the Director's Delegate adjourned the hearing to allow for written submissions on whether the new ground should be permitted and its substance.

The Appellant was ordered to pay the Respondent $750 in costs thrown away for the adjourned hearing.

The applicant's representative, Yeung & Associates, brought a motion to withdraw as the representative of record in a statutory accident benefits dispute.

The arbitrator found that there had been a breakdown of communication in the solicitor-client relationship and that the applicant had apparently retained another representative.

The motion was granted, and Yeung & Associates was permitted to withdraw without terms.

The arbitrator ordered an 11-year-old minor to personally pay the respondent's arbitration legal expenses of $3,172.50.

The minor appealed and sought a stay of the order.

The Director's Delegate granted the stay, noting that proceedings involving minors must be brought through a litigation guardian who acknowledges liability for costs.

The appeal was put over to allow the parties to request the arbitrator to amend the title of proceedings and the expense order to reflect that any costs are payable by the litigation guardian, not the minor personally.

The insurer raised a preliminary issue seeking to stay the arbitration pending the applicant's attendance at an updated occupational therapy in-home assessment and a psychological examination under section 44 of the Statutory Accident Benefits Schedule.

The applicant argued the occupational therapy assessment was causing him severe physical and psychological distress.

The arbitrator ordered the arbitration stayed until the applicant completes the psychological assessment and the remaining functional testing for the occupational therapy assessment, though the latter could be conducted by a different occupational therapist.

The arbitrator also ruled that the applicant's service provider was not required to speak with the insurer's assessor or provide further documentation under section 46.2, as sufficient information had already been provided.

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

Following the applicant's death, his counsel submitted an Application for Mediation signed only by counsel, unaware of the applicant's passing.

The insurer argued the application was invalid as it lacked the claimant's signature and was not properly authorized.

The arbitrator held that the absence of a claimant signature was a mere defect in form that did not invalidate the proceeding.

Furthermore, the applicant's wife, acting continuously under a Power of Attorney and subsequently as executrix, had the authority to and did authorize the application.

The preliminary issue was resolved in favour of the applicant.

The applicant was injured in a motor vehicle accident and received income replacement benefits (IRBs).

She later returned to work part-time.

The parties disputed the correct method for calculating the IRB deduction for her post-accident part-time income.

The applicant argued for an 'Equitable Approach' where her income would be prorated based on the hours she was unable to work.

The insurer argued that under section 7(3) of the Schedule, 70% of her gross weekly employment income should be deducted from her IRB entitlement.

The arbitrator agreed with the insurer, finding that the law requires the deduction to be based on the weekly income earned, not on a percentage of working versus non-working hours.

The self-represented applicant failed to attend pre-hearings or respond to correspondence regarding her application for statutory accident benefits, citing her son's hospitalization.

The insurer brought a motion to dismiss the claim and sought expenses.

The arbitrator found that the applicant had constructively withdrawn her claim and deemed the application withdrawn pursuant to Rule 70 of the Dispute Resolution Practice Code.

The arbitrator declined to make orders regarding future applications, finding no authority to do so.

The insurer's request for expenses was denied, as the insurer unnecessarily prolonged the process by pursuing the motion to dismiss despite knowing the unrepresented applicant intended to withdraw.