Stephen Balfour MacAulay

The applicant sought statutory accident benefits for psychological injuries allegedly sustained after his mother was catastrophically injured in a motor vehicle accident when he was five years old.

The respondent insurer raised a preliminary issue that the applicant was not an 'insured person' under the Schedule.

The Tribunal found that the applicant did not meet the definition of an 'insured person' because he was not a named insured, a spouse, a dependent, or involved in the accident.

The Tribunal also rejected the applicant's argument that the respondent was estopped from denying coverage, noting that estoppel cannot create insurance coverage where none exists.

The application was dismissed.

The applicant sought statutory accident benefits following a 2012 motor vehicle accident.

At a case conference, the respondent requested production of a release and disclosure notice from the applicant's settlement with another insurer regarding a 2010 accident.

The applicant argued the documents were irrelevant and protected by settlement privilege.

The adjudicator found the documents relevant to the issue of potential double recovery, as the prior settlement might have included funds for future medical and attendant care needs.

The adjudicator also held that the applicant failed to establish that the prior settlement was made in the context of actual or contemplated litigation, and therefore settlement privilege did not apply.

The applicant was ordered to produce the documents.

The Applicant was injured in a motor vehicle accident and subsequently entered into a settlement agreement for statutory accident benefits.

Years later, his litigation guardian challenged the settlement, arguing either that the Applicant's father forged his signature or that the Applicant lacked capacity to contract.

The Arbitrator found that the Applicant likely signed the documents himself.

However, relying on extensive medical records showing the Applicant was involuntarily hospitalized for psychosis hours after signing, and an uncontradicted capacity assessment, the Arbitrator concluded the Applicant lacked capacity to contract both when signing and during the statutory cooling-off period.

The settlement was therefore declared not binding.

The applicant was struck by a city bus as a pedestrian, sustaining soft tissue injuries and a mild traumatic brain injury.

She subsequently developed severe depression, anxiety, and post-traumatic stress disorder.

She applied for a determination that her impairments met the catastrophic threshold under the Statutory Accident Benefits Schedule.

The Tribunal found that while her cognitive complaints were largely psychogenic rather than organic, her psychological impairments were genuine and severely debilitating.

Relying on comprehensive neuropsychological and occupational therapy assessments, the Tribunal concluded the applicant suffered a marked impairment in the adaptation domain, thereby meeting the criteria for a catastrophic impairment under s. 2(1.2)(g) of the Schedule.

The statutory third party, Wawanesa, brought a motion to compel the plaintiff to attend a defence physiatry examination.

The plaintiff opposed, arguing that leave was required under Rule 48.04 and that the motion should be denied due to various defaults by the insured and Wawanesa.

The court found that leave was not required and that Wawanesa should not be prejudiced by its insured's defaults.

However, the motion for an immediate examination was dismissed due to Wawanesa's significant delay in requesting it, which would prejudice the plaintiff given the imminent trial date and the inability to obtain a timely expert response.

The court ordered Wawanesa to produce the insurance policy and fixed costs against Wawanesa, while also stating that the plaintiff would be required to attend the examination if the trial were adjourned.

The insurer sought leave to appeal and a stay of an arbitrator's preliminary order requiring it to fund a catastrophic impairment assessment.

The Director's Delegate rejected the appeal at this time, finding it more efficient to wait until the main arbitration concluded to avoid a multiplicity of appeals.

The request for a stay of the arbitrator's order was also denied, as the insurer was in a better position to bear the risk of non-recovery than the insured person.

The applicant was injured in a motor vehicle accident and subsequently pled guilty to dangerous driving causing bodily harm, receiving a conditional discharge.

The insurer denied income replacement and housekeeping benefits, arguing the applicant was excluded under section 30 of the Statutory Accident Benefits Schedule.

The arbitrator found that while the applicant was not 'convicted' of a criminal offence under subsection 30(2) due to the conditional discharge, he was 'found guilty' under subsection 30(4).

Consequently, the applicant was precluded from receiving benefits from the date of the accident until the date of his conditional discharge, and any benefits held in trust for that period were to be returned to the insurer.

However, he was not precluded from receiving benefits after the charge was finally disposed of.

The applicant sustained catastrophic injuries, including a traumatic brain injury, in a motor vehicle accident.

A dispute arose regarding the quantum of attendant care benefits under section 16 of the Statutory Accident Benefits Schedule.

The insurer reduced benefits from $6,000 to $2,132 per month, arguing the applicant's increased needs were due to post-accident drug abuse and traffic charges rather than the accident.

The arbitrator found the drug abuse was caused by the accident and that the applicant required 24-hour supervision until his rehabilitation stabilized in early 2011.

The applicant was awarded $6,000 per month for the disputed period up to March 2011, and $2,132 per month ongoing thereafter.

The applicant sought additional statutory accident benefits for housekeeping services following a motor vehicle accident.

After the first day of the arbitration hearing, the applicant failed to appear for the continuation.

The arbitrator dismissed the claim on the merits, finding insufficient evidence that the applicant incurred reasonable and necessary additional expenses for housekeeping services or that he actually required them beyond the period already paid by the insurer.

The insurer was awarded its expenses for the arbitration.

The applicant, injured in a motor vehicle accident, sought production of the insurer's surveillance evidence, the entire accident benefits file up to the date of the second mediation, and the insurer's policy and training manuals.

The arbitrator ordered production of surveillance evidence limited to what the insurer intended to rely on at the hearing, pursuant to Rule 40.1 of the Dispute Resolution Practice Code.

The arbitrator also limited production of the accident benefits file to the date of the first Application for Mediation, finding that subsequent documents were protected by litigation privilege.

The request for policy manuals was denied as the applicant failed to establish their relevance or reasonable necessity.

The applicant sought an assessment of expenses following a successful arbitration for statutory accident benefits and a subsequent appeal.

The insurer argued the request was out of time under Rule 79.1 of the Dispute Resolution Practice Code.

The arbitrator exercised discretion under Rule 81.1 to set aside the 30-day time limit, finding it reasonable that the applicant waited until the appeal was resolved.

The arbitrator awarded the applicant his expenses, including an hourly rate of $150 for his counsel and $45 for a highly experienced law clerk who also acted as an interpreter.

Total expenses of over $51,000 were awarded, including disbursements and the costs of the assessment hearing.

The applicant was injured when he rode his bicycle into a parked trailer attached to an automobile at night.

He applied for statutory accident benefits, which the insurer denied on the basis that the incident did not meet the definition of an 'accident' under section 2(1) of the Statutory Accident Benefits Schedule.

The arbitrator found that the parked trailer constituted an automobile and that parking is an ordinary use of an automobile.

The arbitrator concluded that the applicant's injuries were directly caused by the use or operation of an automobile, and therefore the incident qualified as an accident.

The appellant insurer and respondent insured both sought their expenses following an appeal decision where the insurer successfully reduced a special award from $40,000 to $10,000, but the insured successfully defended the entitlement to the special award and the exclusion of certain evidence.

The Director's Delegate found that the insured had the greatest degree of success overall and was entitled to expenses.

However, because success was divided, the insured was awarded only half of his reasonable expenses.

The insured's claim for over 80 hours of preparation was found excessive compared to the Legal Aid tariff for Supreme Court appeals.

Reasonable expenses were assessed at $4,000, resulting in an award of $2,000 to the insured.

The applicant sought production of the insurer's post-mediation adjusting file in a dispute over statutory accident benefits.

The insurer claimed litigation and solicitor-client privilege over 18 portions of the file.

The arbitrator reviewed the unedited file and ordered production of the portions relating to ongoing payment of undisputed benefits, while upholding privilege over entries concerning reserves, litigation strategy, and communications with legal counsel.

The applicant, who was injured in a motor vehicle accident, sought production of the insurer's entire claims file, including internal activity logs and correspondence created after the application for mediation.

The insurer claimed litigation and solicitor-client privilege over certain documents.

The arbitrator dismissed the motion for production, applying the presumption that documents created after the application for mediation are for the dominant purpose of litigation.

The arbitrator found that the applicant's claim for a special award did not override the insurer's claims of privilege.

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

The Insurer refused to pay for certain treatments and examinations, leading the Applicant to apply for arbitration.

At the hearing, the Applicant failed to appear.

In the absence of any evidence from the Applicant, the Arbitrator dismissed the application.

The Insurer was awarded $1,650 for the expenses of the arbitration proceeding.

The insurer appealed an arbitration decision that excluded the evidence of a replacement medical expert and ordered a $40,000 special award for unreasonably delaying and withholding income replacement benefits.

The Director's Delegate upheld the exclusion of the replacement expert's evidence, finding no error of law.

While the Delegate agreed that the insurer unreasonably delayed and withheld benefits, he found the arbitrator erred in calculating the special award by applying it to post-104 week benefits based on a late-filed medical report the insurer had no time to consider.

The Delegate also found the arbitrator failed to consider mitigating factors and proportionality.

The special award was reduced to $10,000.

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

The insurer raised a preliminary issue that the applicant was barred from proceeding to arbitration because he failed to submit his application within 30 days of receiving it, without a reasonable explanation, pursuant to section 32(3) of the Statutory Accident Benefits Schedule.

The arbitrator found that the insurer failed to promptly notify the applicant that his explanation for the delay was unacceptable, leading him to believe only a signed statement was required.

Applying the doctrines of promissory estoppel and laches, the arbitrator held that the insurer was barred from relying on the 30-day time limit.

The applicant was permitted to proceed to arbitration on the substantive issues.

The insurer raised a preliminary issue seeking to exclude the applicant's statutory accident benefits representative from the arbitration hearing due to an undisclosed conflict of interest.

The representative had a business relationship with a medical assessor to whom he referred the applicant for a digital motion x-ray.

The arbitrator found that this relationship created an appearance of a possible or potential conflict of interest, as the representative could receive a financial benefit.

Applying the principles from civil litigation regarding fiduciary duties, the arbitrator concluded that the failure to disclose the conflict was an unfair or deceptive practice under the Insurance Act.

The representative was excluded from the hearing pursuant to the Statutory Powers Procedure Act.

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

The insurer terminated his weekly income replacement benefits on October 24, 2000.

The applicant applied for arbitration, seeking ongoing income replacement benefits and a special award.

The arbitrator found that the applicant suffered a substantial inability to perform the essential tasks of his employment for the first 104 weeks, and a complete inability to engage in any suitable employment thereafter due to chronic pain and depression.

The arbitrator also found that the insurer unreasonably withheld the benefits despite having sufficient medical and employment information, and awarded a special award of $40,000 inclusive of interest.