Ted Charney

The applicant sought to withdraw her application for arbitration at the Financial Services Commission of Ontario to pursue a civil action.

The insurer had raised a defence under s. 30(2) of the Statutory Accident Benefits Schedule, alleging the applicant intentionally failed to notify it of a material change in risk.

The applicant argued she needed to seek relief from forfeiture under s. 129 of the Insurance Act, a remedy outside the arbitrator's jurisdiction.

The arbitrator granted permission to withdraw, noting the jurisdictional issue regarding relief from forfeiture was arguable and better suited for a court.

Both parties' requests for expenses were denied, as the insurer's late raising of the exclusion defence contributed to the unproductive arbitration process, and the applicant's decision to seek relief from forfeiture was reasonable.

The applicant sought to withdraw her application for arbitration regarding a $330 physiotherapy assessment bill, claiming the arbitration was commenced by her former legal representatives and the clinic without her knowledge or consent.

The insurer did not oppose the withdrawal but sought its arbitration expenses against the clinic and the legal representatives, arguing they abused the Commission's process.

The arbitrator permitted the withdrawal without conditions.

The arbitrator found that the clinic and representatives had indeed abused the process by commencing the arbitration without the applicant's knowledge, but concluded she had no statutory jurisdiction under the Insurance Act or the Statutory Powers Procedure Act to order non-parties to pay expenses or to make orders against them to prevent future abuse of process.

The applicant was injured in a motor vehicle accident and received weekly disability benefits until they were terminated by the insurer in August 1992.

In December 1994, the applicant applied for mediation to dispute the termination.

The insurer argued the application was barred by the two-year limitation period under the Insurance Act and the Statutory Accident Benefits Schedule.

The arbitrator found that the insurer had clearly and unequivocally refused benefits in August 1992, and that the applicant had not requested reinstatement in January 1994 as alleged.

The arbitrator held that the limitation period ran continuously from the initial refusal and that the insurer was not estopped from relying on it.

The application regarding weekly disability benefits was dismissed as out of time, though the applicant was permitted to proceed to arbitration regarding a recently claimed whirlpool benefit.