Theodore P. Charney

The Applicant sought production of surveillance videos and related reports from the Insurer in a statutory accident benefits dispute.

The Insurer had initially stated no surveillance existed but later admitted it did, refusing production on the basis of privilege and the Dispute Resolution Practice Code.

The Arbitrator ordered the Insurer to produce the surveillance evidence forthwith, finding that the Insurer failed to meet its evidentiary burden to support a claim of litigation or solicitor-client privilege.

The Arbitrator dismissed the Insurer's late request for the Applicant's photographs and videos, as well as the Applicant's broad request for all investigative reports.

The appellant appealed an order of the Superior Court of Justice.

The appellant abandoned his claim for Wallace damages against one of the respondents.

The Court of Appeal found that the facts pleaded did not support a claim for punitive damages against that respondent.

The Court also refused to grant leave to amend the statement of claim to plead negligent investigation, as there was no evidence the appellant was dismissed due to such an investigation.

The appeal was dismissed with costs.

The applicant sought to schedule an arbitration hearing as soon as possible, suggesting January 2009.

The insurer's counsel was unavailable for those dates and requested March 2009.

The arbitrator held that the scheduling of the hearing is not strictly dependent on the availability of the insurer's counsel, emphasizing the statutory goal of a prompt and inexpensive resolution.

The arbitrator ordered that the hearing remain scheduled for January 12, 2009, noting the applicant's willingness to consent to an adjournment if the insurer's counsel was actually engaged in conflicting judicial commitments at that time.

The plaintiff brought a motion for leave to appeal a decision of the lower court.

The defendants brought a cross-motion for security for costs.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions, no reason to doubt the correctness of the lower court's decision, and that the proposed appeal did not raise matters of general importance due to the exceptional factual circumstances of the case.

The court also dismissed the defendants' motion for security for costs, as there was no good reason to believe the plaintiff's action was frivolous and vexatious.

Given the mixed results, no costs were awarded.

The appellants and the Law Foundation of Ontario sought leave to appeal costs orders made by the case management judge following the dismissal of several proposed class actions against automobile insurers.

The motion judge had awarded costs to the successful insurers, including substantial indemnity costs where the plaintiffs persisted with unsubstantiated allegations of fraud and deceit to overcome limitation periods.

The Court of Appeal dismissed the application for leave to appeal, finding no error in principle in the motion judge's exercise of discretion regarding entitlement or scale of costs.

The defendant insurer brought a motion for leave to appeal an order upholding a Master's decision that required the production of certain documents.

The insurer asserted litigation privilege over the documents, arguing that any document created after litigation was reasonably contemplated is automatically privileged.

The Divisional Court dismissed the motion, finding no conflicting decisions or reason to doubt the correctness of the order.

The court affirmed that the dominant purpose test applies even after litigation is contemplated, and the party asserting privilege bears the burden of proving that the documents were created for the dominant purpose of the anticipated litigation.

The appellant appealed a trial judge's ruling that he was entitled to only 90 days' notice upon the non-renewal of a contract.

The Court of Appeal dismissed the appeal, finding that because the contract allowed for termination during its term on 90 days' notice, the notice of non-renewal could not exceed 90 days.

The court also upheld the trial judge's finding that the appellant's records were too unreliable to establish anything more than nominal damages for the shortfall in notice.

The appellant appealed an order refusing to set aside a default judgment.

The Court of Appeal dismissed the appeal, finding no reason to interfere with the motion judge's assessment that the appellant failed to offer a plausible explanation for her default, as she had advanced a patently false assertion that she was not the person named in the statement of claim.

The insurer sought production of an accounting report prepared by the defendants in a related tort action, which the applicant had received.

The applicant initially opposed production on the basis of litigation privilege but abandoned that position.

The arbitrator ordered the applicant to produce the report, finding that it was relevant to the quantum of income replacement benefits and that its production would likely simplify and expedite the arbitration process by avoiding the need for the insurer to commission a further report.

The insurer appealed an arbitration order requiring it to pay interest on medical and rehabilitation expenses.

The central issue was whether interest under s. 46(2) of the SABS-1996 is payable on expenses awarded at arbitration when a Designated Assessment Centre (DAC) previously reported the expenses were not reasonable and necessary.

The Director's Delegate held that a negative DAC report generally suspends the obligation to pay, meaning benefits are not 'overdue' prior to adjudication.

However, the appeal was dismissed because the insurer had voluntarily paid for the sessions but at a reduced hourly rate, making the shortfall an overdue payment subject to interest.

The insurer appealed an arbitration order requiring it to pay interest on chiropractic and exercise expenses awarded to the insured.

The central issue was whether interest under s. 46(2) of the SABS-1996 is payable on medical expenses that a Designated Assessment Centre (DAC) had previously deemed not reasonable and necessary, but which an arbitrator later awarded.

The Director's Delegate held that because the DAC report was negative, the insurer had no obligation to pay the expenses prior to the arbitrator's decision.

Consequently, the benefits were not 'overdue' within the meaning of the Schedule prior to adjudication, and no interest was payable for that period.

The appeal was allowed and the order for interest was rescinded.

The applicant in a statutory accident benefits dispute served a late psychovocational assessment report shortly before the arbitration hearing.

The insurer brought a motion seeking an order that the applicant attend a psychovocational assessment by its own expert to respond to the late report.

The arbitrator granted the motion, holding that fairness and the arbitrator's duty to control the hearing process required that the insurer be given a reasonable opportunity to respond, which included an independent assessment of the applicant.

The applicant, a pedestrian struck by a vehicle, sought statutory accident benefits including income replacement, dental, and housekeeping benefits.

The arbitrator found the applicant was not entitled to ongoing income replacement benefits, as she was not substantially unable to perform the essential tasks of her pre-accident employment as a companion.

The arbitrator awarded the cost of an alternative dental treatment plan, finding the accident materially contributed to the need for it, despite pre-existing dental neglect.

The claim for housekeeping benefits was dismissed, as the applicant failed to prove a substantial inability to perform her pre-accident housekeeping duties.

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

Zurich brought a preliminary motion arguing it had an absolute defence under the Disputes Between Insurers Regulation, alleging that another insurer, Lumbermens, was the first to receive a completed application for benefits.

The arbitrator found that Zurich's evidence was based on unsupported hearsay, while documentary evidence from Lumbermens refuted the claim that it had received an application.

The arbitrator concluded that Zurich received the first completed application and dismissed the motion, allowing the applicant to proceed to arbitration against Zurich.

The applicant was injured in a motor vehicle accident and received income replacement benefits from her automobile insurer, Coseco, as well as long-term disability benefits from London Life through her employer.

Coseco deducted the London Life benefits from the income replacement benefits.

The applicant disputed this deduction, arguing the matter was not settled at mediation and the deduction was unfair.

The arbitrator found that the London Life policy qualified as an income continuation plan under section 7(1) of the Statutory Accident Benefits Schedule, as it provided income security for loss of wages and was tied to her earnings.

Therefore, Coseco was entitled to deduct the collateral benefits.

Each party was ordered to bear their own costs.

Following an arbitration award for chiropractic and rehabilitation expenses, the applicants sought assessment of their arbitration expenses totaling $50,791.66.

The insurer disputed the amount, arguing the legal fees and expert disbursements were excessive.

The arbitrator assessed the expenses at $42,493.76, applying a 4:1 ratio for preparation to hearing time but reducing the fees due to the applicants' minimal success and the self-serving involvement of the rehabilitation clinic.

The arbitrator also determined that interest on the awarded benefits was payable to the husband from the date of the arbitration award (due to his failure to attend a DAC assessment) and to the wife from 14 days after the DAC assessment report.

The applicant, who was injured in a motor vehicle accident, brought a motion for interim expenses to pay his accountant to prepare a financial statement for an upcoming arbitration regarding the quantum of his income replacement benefits.

The arbitrator applied the Bernicky criteria and found that while the application raised a bona fide issue, the applicant failed to prove he was unable to carry the expenses until the arbitration hearing, noting he had recently prepaid his brother a $19,000 salary advance.

The motion for interim expenses was dismissed.

The applicants sought their expenses following an arbitration regarding statutory accident benefits.

The arbitrator found that the applicants were entitled to their arbitration expenses because the factual and legal issues raised were complex, novel, and significant, acting as a 'test case' for several other similar arbitrations.

The insurer's offer to settle was not given weight as it was ambiguous and made for tactical advantage rather than genuine settlement.

Following the dismissal of the applicant's claim for statutory accident benefits, the insurer sought its expenses of the arbitration proceeding and a $3,000 award under subsection 282(11.2) of the Insurance Act.

The arbitrator found that the applicant failed to comply with production orders, did not appear at the hearing, and commenced a proceeding that was manifestly unfounded, frivolous, and an abuse of process.

The applicant was ordered to pay the insurer's expenses of the arbitration, to be assessed, and an additional $3,000 for commencing a frivolous arbitration.

The applicant sought payment for various medical and functional assessments following a motor vehicle accident.

At the hearing, the insurer requested the arbitration be dismissed due to the applicant's failure to comply with pre-hearing production orders.

The arbitrator found the applicant's refusal to produce documents constituted an abuse of process, warranting a stay.

However, proceeding to the merits, the arbitrator concluded the assessment expenses were not reasonable under section 24 of the Statutory Accident Benefits Schedule, as they were unnecessary and duplicative of prior assessments.

The application for arbitration was dismissed.