Richard F.L. Rose

The arbitrator previously dismissed the applicant's claim for statutory accident benefits and ordered the applicant's representative, a paralegal, to personally pay the insurer's expenses.

In this decision on expenses, the arbitrator assessed the quantum of expenses payable.

The insurer claimed $9,039.72, but the arbitrator reduced this amount, disallowing a $3,000 assessment fee that lacked legislative basis and reducing the hourly rate to the correct legal aid tariff for Toronto.

The arbitrator further reduced the bill by $400 due to the insurer's 'less than frank' presentation of expenses.

The representative was ordered to pay $5,033.82 to the insurer.

The applicant was seriously injured in a motor vehicle accident and subsequently developed a severe addiction to crack cocaine.

He applied for catastrophic impairment status, attendant care benefits, and income replacement benefits.

The insurer argued the addiction pre-dated the accident and was not causally linked.

The arbitrator found that the applicant was a recreational user prior to the accident but the severe addiction was a direct result of the accident, likely due to a mild traumatic brain injury and an attempt to self-medicate.

The arbitrator concluded the applicant suffered a Class 4 marked impairment under the AMA Guides, meeting the definition of catastrophic impairment.

The applicant was awarded ongoing attendant care benefits of $5,056.80 per month and income replacement benefits of $256 per week.

The insurer brought a motion to compel the insured to attend further psychological and orthopaedic examinations under section 42 of the Statutory Accident Benefits Schedule.

The insured opposed the motion, arguing the notice for the orthopaedic examination was void and the examinations were not reasonably necessary.

The arbitrator found the notice for the orthopaedic examination was void because it was served less than five business days before the appointment.

Furthermore, the arbitrator held that further examinations were not reasonably necessary, as the insurer had already obtained up-to-date, independent medical opinions that concluded the insured's ongoing complaints were not accident-related.

The motion was dismissed, and the insurer was ordered to pay $500 in costs.

The appellant, a representative for an insured person, appealed an arbitrator's order requiring him to personally pay the insurer's arbitration expenses.

The arbitrator found the arbitration, which pursued an $83.87 claim for a disability certificate, was an abuse of process and that the representative was on a 'frolic of his own'.

On appeal, the representative argued that the arbitrator erred in retrospectively applying s. 282(11.2) of the Insurance Act, which allows costs to be awarded against a representative personally.

The Director of Arbitrations dismissed the appeal, holding that expense provisions are procedural and apply retrospectively.

The Director also rejected the argument that the representative's alleged employer should bear the costs, affirming the personal costs order and awarding $750 in appeal expenses to the insurer.

The applicant sought reimbursement for a supplementary disability certificate following a motor vehicle accident.

The insurer refused payment, noting the certificate appeared altered and incomplete, and the applicant had failed to attend a related home assessment.

The arbitrator dismissed the claim, finding the certificate was useless and unconnected to any bona fide claim for benefits.

Finding the arbitration to be a clear abuse of process driven by the applicant's paralegal representative, the arbitrator ordered the insurer's expenses to be paid personally by the representative pursuant to section 282(11.2) of the Insurance Act.

The applicant sought to withdraw her application for arbitration regarding a dispute over an $83.87 disability certificate, citing alleged institutional bias.

The insurer consented to the withdrawal but sought its expenses and the $3,000 assessment fee, arguing the proceeding was frivolous, vexatious, and an abuse of process.

The arbitrator permitted the withdrawal but ordered the applicant to pay the insurer's legal expenses of $1,151.44 and the $3,000 assessment fee, finding that the application was part of a larger course of improper conduct designed to harass the insurer and was therefore an abuse of process.

The insurer appealed an arbitration order requiring it to pay ongoing income replacement benefits.

The insurer had terminated the insured's benefits based on an insurer examination (IE) report, despite having received a Designated Assessment Centre (DAC) report that supported the insured's disability claim.

The Director's Delegate dismissed the appeal, holding that under section 37(5) of the SABS-1996, an insurer cannot terminate benefits based on an IE report in the face of a positive DAC report, but must instead continue paying benefits pending the resolution of the dispute.

In an addendum on costs following an appeal, the Court of Appeal for Ontario awarded the respondents their costs on a partial indemnity basis, fixed at $13,099.75 inclusive of disbursements and GST, having regard to their success on appeal, the complexity of the issues, and their Bill of Costs.

The applicant sought to withdraw her arbitration application without penalty, alleging institutional bias among FSCO arbitrators, and requested the appointment of a private arbitrator under s. 282(12) of the Insurance Act.

The Director of Arbitrations dismissed the bias application, finding that the applicant failed to establish bias.

Furthermore, the Director noted that s. 282(12) only authorizes the appointment of arbitrators from the roster maintained by the Superintendent, not private arbitrators.

The respondent's request for expenses was deferred to the eventual determination of arbitration expenses.

The minor respondent was injured in Florida when his tricycle collided with a school bus.

The respondents settled their Florida action for the maximum amount recoverable under Florida's sovereign immunity legislation.

They then sought indemnification from their Ontario insurer under the S.E.F. 44 Family Protection Endorsement for the shortfall.

The insurer appealed a motion judge's finding that the minor respondent had a cause of action.

The Court of Appeal dismissed the appeal, holding that the minor respondent was 'legally entitled to recover' damages despite the Florida statutory cap, and that the tortfeasors were 'inadequately insured' because their excess insurance was unavailable to the respondents.

The applicant was injured in a motor vehicle accident and received income replacement benefits (IRBs) which were later terminated by the insurer.

In an earlier decision, the arbitrator found that the insurer breached section 37(5) of the Statutory Accident Benefits Schedule by terminating IRBs without initiating the dispute resolution process following a positive Designated Assessment Centre (DAC) finding.

In these supplementary reasons, the arbitrator determined the effect of this breach on the ongoing arbitration.

The arbitrator held that the insurer must comply with the procedure set out in section 37(5), meaning it must commence mediation and a court action, and pay IRBs pending the resolution of the dispute.

Consequently, the arbitration concerning the applicant's entitlement to IRBs was concluded, though it could continue regarding housekeeping benefits and a special award.

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

The insurer terminated benefits after an insurer medical examination, despite a prior Designated Assessment Centre (DAC) report concluding the applicant remained disabled.

The applicant applied for arbitration, arguing the insurer breached section 37(5) of the Statutory Accident Benefits Schedule by failing to dispute the DAC report through the dispute resolution process and instead relying on a new medical examination to terminate benefits.

The arbitrator found that the insurer did not respect the role of the DAC and improperly attempted to circumvent the dispute resolution process.

The insurer was ordered to pay income replacement benefits pending the resolution of the dispute.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits for fitness classes, chiropractic and massage treatments, acupuncture, and housekeeping expenses.

The arbitrator found that the applicant suffered from chronic pain and reasonably required the fitness classes and ongoing chiropractic and massage treatments.

The claim for acupuncture was also allowed, as the applicant established a prima facie case for its reasonableness.

However, the claim for housekeeping and home maintenance expenses was dismissed because the evidence, including a functional capacity evaluation, showed the applicant was capable of performing the tasks by pacing herself.

Finally, the arbitrator ordered the insurer to pay a special award of $350 for unreasonably withholding chiropractic benefits pending dispute resolution.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them in June 1996.

The applicant applied for mediation, which failed in April 1997.

She filed an application for arbitration in November 1998, more than two years after the insurer's refusal to pay further benefits.

The arbitrator held that the two-year limitation period under section 72(1) of the Statutory Accident Benefits Schedule had expired.

The insurer's agreement to reconsider the claim upon receipt of updated medicals did not waive or reactivate the limitation period.

The application for arbitration was dismissed as out of time.

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

The insurer terminated his income replacement benefits (IRBs) based on a Designated Assessment Centre report.

The applicant sought IRBs for the period before he returned to work, for days missed after returning to work, and reimbursement for chiropractic expenses.

The arbitrator found the applicant was not entitled to IRBs for the period before returning to work, but was entitled to five days of IRBs for days missed after returning.

The arbitrator also ordered the insurer to recalculate the IRB amount and pay for chiropractic treatments incurred before a subsequent DAC assessment.

A special award of 30% was granted against the insurer for unreasonably withholding payment of the chiropractic expenses.

The applicant was injured when he fell off his bicycle after driving over a patch of hydraulic fluid on the road.

He applied for statutory accident benefits, which the insurer denied on the basis that the incident was not an 'accident' under the Schedule.

The arbitrator found that the fluid originated from a motor vehicle and that the applicant's injuries were directly caused by the use or operation of an automobile, satisfying the amended definition of 'accident'.

The applicant was entitled to the benefits claimed.

The appellant was injured in a motorcycle accident and claimed income replacement benefits.

He argued that the profit from the sale of a residential property should be included in his pre-accident income as business income from self-employment.

The arbitrator found that the appellant was not self-employed in relation to the property and that the profit was a capital gain, but awarded him arbitration expenses due to the complexity of the case.

Both parties appealed.

The Director's Delegate dismissed both appeals, upholding the arbitrator's findings on self-employment and the award of expenses.

The applicant was injured in a motor vehicle accident and claimed ongoing weekly and lump sum education disability benefits under the Statutory Accident Benefits Schedule.

She argued that her back injuries prevented her from pursuing her intended career as a nurse, constituting a substantial inability to continue her education.

The arbitrator held that the Schedule does not compensate for loss of future career opportunity and found she was able to continue her post-secondary education in other fields.

However, the arbitrator found she suffered a partial inability to carry on a normal life for a limited period due to restrictions on her mobility activities, awarding weekly benefits for that closed period.

The applicant was injured in a motorcycle accident and applied for income replacement benefits (IRBs).

He argued that the proceeds from the sale of a property he renovated should be treated as business income from self-employment and included in the calculation of his IRBs.

The insurer argued the proceeds were a capital gain and should be excluded.

The arbitrator found that the applicant was not self-employed in a business related to the property, as he did not have an established business location, did not register a business, and the transaction was not obviously commercial in nature.

The proceeds were determined to be a capital gain and excluded from the IRB calculation.

The applicant was awarded his expenses for the arbitration proceeding due to the complexity of the issues.

The applicant was injured in a motor vehicle accident and received statutory accident benefits from the insurer.

The insurer subsequently disputed his entitlement, arguing he was an employee entitled to workers' compensation benefits.

At a preliminary issue hearing, the arbitrator found the applicant failed to produce required corporate and financial documents, drawing adverse inferences against him.

The arbitrator concluded the applicant was entitled to workers' compensation benefits and had initiated a tort action primarily to claim accident benefits, thus excluding him from SABS coverage under s. 76.

The insurer's claim for repayment of over $109,000 in benefits was dismissed for lack of evidence of fraud or misrepresentation.

The applicant was ordered to pay the insurer's $2,000 assessment fee for commencing a frivolous arbitration.