Robert W. Kerkmann

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits from the Motor Vehicle Accident Claims Fund, despite a police report indicating the vehicle he was in was insured by Wawanesa.

The Fund refused to pay, arguing the application was incomplete without the police report and there was an insufficient nexus.

The arbitrator found the application was complete but agreed there was an insufficient nexus because the applicant's choice to apply to the Fund was arbitrary, as he took no steps to determine if other insurance was available.

The Director's Delegate dismissed the appeals by the applicant and Wawanesa, confirming that an applicant must have some basis for believing coverage is unavailable elsewhere before applying to the Fund as the insurer of last resort.

The applicant, a resident of Texas, was injured in a hit-and-run motor vehicle accident while visiting Ontario.

He applied for statutory accident benefits from the Motor Vehicle Accident Claims Fund.

The Fund refused payment on the basis that the applicant was precluded from proceeding under subsections 25(1) and (2) of the Motor Vehicle Accident Claims Act, as Texas does not have a substantially similar fund.

The arbitrator found that the applicant was ordinarily resident in Texas and that Texas does not have a similar fund.

The application for arbitration was dismissed.

The insurer brought a motion for the production of Ontario Provincial Police (OPP) records relating to the applicant's ATV accident.

The applicant consented to the release, but the OPP refused to produce the records without a court order, citing the Freedom of Information and Protection of Privacy Act.

The arbitrator held that under section 22(1) of the Insurance Act and the Statutory Powers Procedure Act, an arbitrator has the jurisdiction to order third-party production.

Finding the records relevant and necessary, the arbitrator ordered the OPP to produce the records subject to agreed redactions.

The applicant was injured in a motor vehicle accident and submitted an Application for Accident Benefits to the Motor Vehicle Accident Claims Fund without a police report.

The Fund argued it did not receive a completed application and that there was no nexus between it and the applicant.

The arbitrator found that while the application became complete when the Fund eventually received the police report, the applicant's choice to submit the application to the Fund was arbitrary.

Because the applicant failed to establish a sufficient nexus with the Fund, the Fund was not an 'insurer' within the meaning of section 268 of the Insurance Act and was not required to respond to the application.

The applicant, who was seriously injured in a motor vehicle accident, sought statutory accident benefits for home modifications under section 15 of the Statutory Accident Benefits Schedule.

The parties disputed whether a property owned by the applicant's family, which they were allegedly planning to move into before the accident, qualified as his 'existing home.' The parties also disputed whether the insurer was required to pay for remedial work, such as mould removal and structural repairs, necessary before the home modifications could proceed.

The arbitrator found that the property was the applicant's 'existing home' because the Schedule allows flexibility in choosing a home and the applicant had a reasonable connection and settled intention to live there.

However, the arbitrator ruled that the insurer was not required to pay for the remedial work, as it was not required to reduce or eliminate the effects of any disability resulting from the accident.

The insurer brought a motion to add the Motor Vehicle Accident Claims Fund (MVAC) as a co-respondent or third party to an arbitration proceeding, arguing MVAC was responsible for any special award arising from its prior handling of the file.

The arbitrator dismissed the motion, finding no statutory jurisdiction under the Insurance Act to add an insurer to a proceeding over the applicant's objection.

The arbitrator also dismissed the insurer's motion to strike the applicant's claim for a special award, instead amending the issue to reflect the insurer's potential liability for both its own actions and those of MVAC.

The insurer was ordered to pay the legal expenses of both MVAC and the applicant.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits from the Motor Vehicle Accident Claims Fund (MVAC Fund).

The applicant later sought to add Wawanesa Mutual Insurance Company as an insurer to the arbitration.

The Arbitrator held that there is no jurisdiction to add Wawanesa as a party, as jurisdiction must be specifically granted or flow by necessary implication.

Section 281(2) of the Insurance Act prohibits arbitration without prior mediation, which had not occurred with Wawanesa, and O. Reg. 283/95 establishes a separate process for priority disputes.

The motion was denied.

The applicant applied for statutory accident benefits following a motor vehicle accident.

The insurer denied entitlement, and the parties proceeded to arbitration.

The applicant's representative was removed from the record with her consent prior to the hearing.

The applicant failed to attend the hearing despite receiving proper notice.

As no evidence was tendered to support the application, the arbitrator dismissed the application and ordered the applicant to pay the insurer's expenses fixed at $1,977.33.

The applicant's husband was struck by a cement truck and sustained physical injuries.

The applicant, who was not involved in the accident, claimed statutory accident benefits for psychological injury from the Motor Vehicle Accident Claims Fund.

The Fund denied the claim on the basis that she was not an 'insured person' under the Schedule.

The arbitrator held that the definition of 'insured person' for those not involved in an accident is clear and unambiguous, requiring the person to be a named insured, specified driver, or their spouse/dependant.

As the applicant was the spouse of an unnamed insured, she did not meet the definition and her claim was dismissed.

The plaintiff sought costs on a solicitor and client basis following the dismissal of the defendants' motion for leave to appeal a summary judgment decision.

Applying the test from Smyth v. Waterfall, the court found the defendants failed to show that bringing the motion for leave to appeal was reasonable.

The court awarded the plaintiff costs on a solicitor and client basis, fixed at $4,742.00.