Robert S. Franklin

The insurer applied to vary a preliminary appeal order that had made an arbitrator's entitlement orders interim pending a full hearing.

The insurer sought to suspend income replacement benefits due to the insured's refusal to attend insurer medical examinations, and requested various other procedural orders.

The Director's Delegate rejected the variation application, finding that the issues raised were properly within the purview of the arbitrator at the upcoming hearing, and that accepting the application would lead to a multiplicity of proceedings without producing a quick, just, and least expensive resolution.

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

The insurer denied the claim, arguing the applicant was precluded under s. 59(1) of the Statutory Accident Benefits Schedule because he was entitled to workers' compensation benefits.

The applicant argued the insurer was estopped from relying on s. 59 because it initially denied benefits on the basis of a suspended licence, prompting him to apply for WSIB benefits.

The arbitrator found the insurer was not estopped, as it had not misrepresented its position and the applicant did not rely on it to his detriment.

The arbitrator also found the applicant did not fall under the s. 59(2) exception, as he failed to prove his tort action was not commenced primarily for the purpose of claiming accident benefits.

The applicant was therefore precluded from receiving accident benefits.

The Applicant was injured in a motor vehicle accident in July 2005 but did not notify the insurer of her claim for statutory accident benefits until December 2007.

The insurer argued the claim was out of time under section 32 of the Statutory Accident Benefits Schedule.

The Applicant submitted she had a reasonable explanation for the delay under section 31, as she developed severe depression and anxiety from acting as the sole caregiver for her husband, who sustained a traumatic brain injury in a prior accident.

The Arbitrator found the Applicant's explanation credible and reasonable, noting her psychological impairments and the overwhelming demands of caring for her husband.

The Applicant was permitted to proceed with her claims.

The appellant was injured in a motor vehicle accident and sought payment for a catastrophic impairment rebuttal report.

Following an appeal decision that rescinded the hearing arbitrator's decision and remitted the issue to a new hearing, both parties sought their legal expenses for the appeal.

The Director's Delegate found that both parties had agreed to the arbitrator's incorrect legal foundation at the initial hearing.

Consequently, the Delegate ordered that each party bear its own legal expenses for the appeal.

The insured appealed an arbitrator's decision terminating his income replacement benefits (IRBs) based on the post-accident onset of unrelated medical conditions (diabetes, high blood pressure, heart condition).

The Director's Delegate allowed the appeal, finding the arbitrator erred in law by failing to recognize that the motor vehicle accident remained a material cause of the insured's ongoing disability, regardless of the subsequent unrelated conditions.

The insurer's cross-appeal to add wilful misrepresentation as an issue was dismissed for failure to provide proper statutory notice.

The insured's appeal regarding the calculation of legal expenses was also allowed, as the arbitrator had mistakenly omitted the actual hearing hours when applying a 3:1 preparation-to-hearing ratio.

The appellant insurer and respondent insured both sought their legal expenses following an appeal regarding the termination of statutory accident benefits.

The Director's Delegate had previously varied the arbitrator's decision by making the benefits order interim pending a final hearing.

Applying the criteria under section 12(2) of O. Reg. 664, the Delegate found that given the mixed success on appeal, the novelty of the legal issue, and the technicality of the question, it was appropriate for each party to bear its own legal expenses.

The applicant sought payment for an orthopaedic assessment, two chronic pain assessments, and housekeeping expenses following a motor vehicle accident.

The insurer argued that the orthopaedic assessment was not incurred, the chronic pain assessments were duplicative, and the housekeeping expenses had already been paid.

The arbitrator agreed with the insurer, finding that the orthopaedic assessment was not payable until incurred, the two chronic pain assessments were an unreasonable duplication of services, and the housekeeping expenses had been paid as evidenced by a cashed cheque.

The arbitration was dismissed.

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

The insurer denied payment for a catastrophic impairment rebuttal report, arguing it was submitted beyond the 80-business-day time limit under paragraph 42.1(3)3 of the Schedule.

The Arbitrator dismissed the appellant's claim.

On appeal, the Director's Delegate found the Arbitrator erred in law by misapprehending the trigger date for the 80-day time limit, as the insurer had not provided clear notice of its determination.

The Arbitrator's order was rescinded and the issue remitted for a new hearing.

The appellant appealed the dismissal of her action for non-compliance with the governing limitation period.

She argued that the action should proceed because the motion judge did not find actual prejudice to the defendants, despite the statement of claim being served more than two years late.

The Court of Appeal dismissed the appeal, finding the motion judge properly considered the relevant factors, including prejudice and the complete lack of explanation for the delay by the appellant's solicitor.

The insured was receiving income replacement and housekeeping benefits following a motor vehicle accident.

The insurer terminated these benefits after conducting insurer medical examinations (IMEs).

The insured disputed the termination, arguing the insurer failed to comply with section 37(1) of the Statutory Accident Benefits Schedule by not requesting a new disability certificate before scheduling the IMEs.

The arbitrator agreed and ordered the insurer to pay ongoing benefits.

On appeal, the Director's Delegate upheld the finding that the insurer breached section 37(1) but, following the Court of Appeal in Stranges, varied the order to make the benefits interim, requiring the insured to prove substantive entitlement at a final arbitration hearing.

The applicant was completely successful in an arbitration regarding statutory accident benefits.

She sought her expenses for the arbitration hearing.

The arbitrator found that the applicant was entitled to her expenses, noting that the hearing involved a novel issue and required interpretation for witnesses, which increased preparation time.

The arbitrator awarded the applicant $45,470.25 for legal fees and $11,853.65 for disbursements, for a total of $57,323.90 inclusive of GST.

The insurer raised preliminary issues arguing that the insured's claims for a catastrophic impairment determination and post-104 week housekeeping benefits were barred by limitation periods, res judicata, and failure to bring claims in a timely fashion.

The Arbitrator held that there was no limitations defence for the catastrophic impairment claim, as no claim had been previously submitted and denied.

The catastrophic impairment claim was also not barred by res judicata from prior arbitration orders.

However, the claim for post-104 week housekeeping benefits was barred by res judicata, as it should have been raised during the final arbitration hearing before Arbitrator Rogers.

The Arbitrator also found no section 50 defence regarding timely notice.

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

The insurer terminated her income replacement and housekeeping benefits.

In a preliminary decision, the arbitrator found the insurer failed to properly terminate the benefits under section 37 of the Schedule and ordered payment until proper termination.

In this decision, the applicant sought a special award under subsection 282(10) of the Insurance Act, arguing the insurer unreasonably withheld benefits.

The arbitrator dismissed the claim for a special award, finding that the insurer's reliance on its medical evidence and its failure to comply with section 37 did not amount to unreasonable behaviour.

The applicant sought payment of $20,242.82 for a catastrophic impairment rebuttal report following a motor vehicle accident.

The insurer denied payment on the basis that the report was not provided within the 80 business day time limit set out in section 42.1(3) of the Statutory Accident Benefits Schedule.

The arbitrator found that the applicant failed to prove the report was provided to the insurer within the required timeframe and failed to provide a reasonable explanation for the delay under section 31.

The application for arbitration was dismissed.

The applicant sought expenses following an arbitration for statutory accident benefits where he was substantially successful on the issue of income replacement benefits.

The applicant claimed $74,682.46 in expenses, including $52,723.13 for legal fees.

The insurer disputed the amount claimed for legal fees, arguing for a lower amount.

The arbitrator applied a 3:1 ratio of preparation time to hearing time, finding the applicant's claimed hours excessive.

The arbitrator awarded the applicant $40,623.08 in total expenses, inclusive of disbursements and GST.

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

The insurer terminated her income replacement and housekeeping benefits after conducting section 42 insurer's examinations.

However, the insurer did not request a new, up-to-date disability certificate before scheduling these examinations, as required by section 37(1) of the Statutory Accident Benefits Schedule.

On a preliminary issue, the arbitrator found that the insurer failed to properly terminate the benefits because it relied on an outdated disability certificate.

Applying the principles from Smith v. Co-operators, the arbitrator held that the consequence of failing to properly terminate benefits is that the benefits remain payable until the insurer complies with the statutory termination procedures.

The insurer was ordered to pay the outstanding benefits with interest.

The applicant was injured in a motor vehicle accident and sought ongoing income replacement benefits (IRBs) after the insurer terminated them.

The insurer argued the applicant was unemployed at the time of the accident and exaggerated his symptoms.

The arbitrator found the applicant was employed through a temporary placement agency at the time of the accident and that his pre-accident health issues did not prevent him from working.

Relying on objective medical evidence of a torn shoulder tendon, the arbitrator rejected the insurer's expert opinions that the applicant was magnifying his symptoms.

The arbitrator concluded the applicant was substantially unable to perform the essential tasks of his employment and awarded IRBs up to the date he reported limitations from unrelated health conditions.

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

The insurer later terminated these benefits, and the applicant applied for arbitration.

Prior to the preliminary issue hearing, the applicant settled her long-term disability claim, which would offset any potential income replacement benefits, and subsequently withdrew her arbitration.

The insurer sought $6,088.65 in expenses for its preparation for the preliminary issue hearing.

The arbitrator dismissed the insurer's claim for expenses, finding that the applicant had a valid reason for withdrawing and had provided timely notice to the insurer two months before the hearing.

The insurer appealed a judgment for the insured in an action for benefits under a sickness and accident policy.

The trial judge instructed the jury that because the insurer had accepted the claim and made some payments, it bore the legal burden of proof to establish that the insured was not totally disabled.

The Court of Appeal found this instruction to be an error, holding that the insured bore the legal burden of proof.

However, the appeal was dismissed as the misdirection did not result in any substantial wrong or miscarriage of justice.

The appellant was injured in a 1993 motor vehicle accident and sought rehabilitation and attendant care benefits.

The arbitrator dismissed the claims, finding the appellant failed to establish that the accident materially contributed to her physical, cognitive, and psychological conditions, largely due to a lack of pre-accident medical records and reliable evidence.

On appeal, the appellant argued the arbitrator erred by admitting insurer medical reports without cross-examination and by misapplying the burden of proof.

The Director's Delegate dismissed the appeal, holding that the failure to cross-examine does not compel acceptance of an expert's report and that the burden of proving causation remained on the appellant.