Todd J. McCarthy

The appellants challenged an order dismissing their motion to set aside an earlier order under rule 37.14 of the Rules of Civil Procedure.

The Court of Appeal held that the motion judge erred in finding herself functus and further erred in concluding there were no grounds to set aside the prior order.

On the uncontradicted evidence concerning discussions about outstanding costs and the absence of any further demand for payment, the earlier order ought not to have been made.

The appeal was allowed, the order below was set aside, the relief sought on the motion was granted, and costs of both the motion and the appeal were fixed at $5,000 each.

The applicant was injured in a motor vehicle accident and sought income replacement, rehabilitation, housekeeping, and transportation benefits from his insurer.

The insurer terminated income replacement benefits after medical assessments found no objective physical impairment and noted signs of exaggerated pain.

The arbitrator dismissed the claims for income replacement, housekeeping, and transportation expenses, finding insufficient medical evidence to support a substantial inability to perform essential tasks.

However, the arbitrator ordered the insurer to pay $2,030 for a portion of the claimed rehabilitation expenses, finding that specific physiotherapy program was reasonable and necessary.

The insurer appealed an arbitration order that included a post-accident disability tax credit in the calculation of a student's pre-accident earning capacity (PEC) for Loss of Earning Capacity Benefits (LECBs) under the SABS-1994.

The Director's Delegate dismissed the appeal, finding that the PEC for students is a notional amount based on the Average Weekly Earnings, and the conversion to net weekly income under sections 81 and 85 explicitly includes the disability tax credit without restriction.

The calculation of tax liability is determined at the time the calculation is done, meaning the insured's current tax status governs.

The applicant, who sustained a closed head injury in a motor vehicle accident, sought accident benefits for 'non-legal' support services provided by a law clerk at his counsel's firm.

The law clerk spent significant time providing emotional support and dealing with the applicant's personal problems.

The arbitrator dismissed the claim, finding that while the expense was incurred as a result of the accident, it was not reasonable because the law clerk's services duplicated and overlapped with the services already provided by the applicant's funded case manager.

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

He previously commenced a court action to enforce a settlement agreement regarding medical rehabilitation benefits.

He subsequently applied for arbitration for new medical and rehabilitation benefits arising from later surgeries.

The insurer brought a preliminary motion to dismiss the arbitration, arguing the applicant was bound to the court forum under s. 282(3) of the Insurance Act.

The arbitrator dismissed the motion, finding that the issue in the arbitration was distinct from the court claim, and the applicant was entitled to proceed with the arbitration.

The insurer brought a preliminary motion arguing that the applicant was barred from proceeding to arbitration because he failed to cooperate with a disability DAC assessment, contrary to s. 64(9) of the Statutory Accident Benefits Schedule.

The insurer alleged the applicant refused to sign a consent form or provide medical records.

The arbitrator preferred the applicant's evidence that he answered all questions and had previously signed authorizations for the insurer to obtain his medical records.

The arbitrator found the applicant complied with his obligations and dismissed the insurer's motion, allowing the arbitration to proceed.

The appellant was injured in a motor vehicle accident and received weekly income benefits for over 156 weeks.

The insurer terminated benefits, and an arbitrator upheld the termination, finding the appellant did not meet the post-156 week test of being continuously prevented from engaging in suitable employment.

On appeal, the appellant argued the arbitrator erred in law by focusing on whether she suffered a head injury, relying on hearsay evidence, and failing to properly analyze suitable employment options.

The Director's Delegate dismissed the appeal, finding the causation issue was properly before the arbitrator, the reliance on hearsay was permissible, and the arbitrator's conclusions were supported by the evidence.

The appellant was injured in a motor vehicle accident and claimed weekly income benefits for chronic pain and depression.

The arbitrator denied the claim, finding the appellant not credible based on alleged pre-existing conditions, surveillance evidence, and hearing observations.

On appeal, the Director's Delegate found that the arbitrator made serious factual errors regarding the pre-accident medical records and misapprehended the surveillance evidence.

Because these errors undermined the core credibility findings, the appeal was allowed, the arbitration order was rescinded, and the matter was remitted for a new hearing before a different arbitrator.

The insurer appealed an arbitrator's preliminary order dismissing its motion to bar the insured's application for arbitration.

The insurer argued the insured failed to comply with section 33 of the SABS by not providing requested medical records in a timely manner.

The arbitrator had found the insured satisfied her obligations by authorizing the release of the records and requesting them through her counsel, noting she could not compel third parties to produce them.

The Director's Delegate rejected the appeal, finding it did not have obvious merit and that the fairest and most expeditious way to proceed was for the remaining entitlement issues to be heard at the scheduled arbitration.

The applicant was injured in a motor vehicle accident and received weekly education disability benefits before becoming eligible for loss of earning capacity benefits (LECBs).

The parties disputed whether the applicant's disability tax credit should be included in the calculation of his pre-accident earning capacity.

The arbitrator held that the Schedule requires the disability tax credit to be considered when translating the gross annual income figure into a net weekly income figure, even though the credit was only received post-accident.

The preliminary issue was resolved in favour of the applicant.

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

The insurer denied benefits and argued that the applicant was precluded from proceeding to mediation and arbitration because she filed her application late, failed to provide requested medical information, and failed to attend medical examinations and assessments.

The arbitrator found that the applicant had a reasonable excuse for the late application, as her doctor failed to complete it promptly.

The arbitrator also found that the applicant had provided the necessary authorizations for medical records and was not responsible for third-party delays in producing them.

Furthermore, the applicant did not fail to make herself reasonably available for examinations, as the insurer failed to provide reasonable notice.

The insurer's preliminary objections were dismissed, and the applicant was permitted to proceed to arbitration.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them for her failure to attend a disability assessment (DAC).

The applicant applied for arbitration.

The preliminary issue was whether the applicant made herself reasonably available for the DACs scheduled on June 24, 1997, and October 9, 1997.

The arbitrator found that her failure to attend the first DAC was reasonable due to late notice and a conflicting medical appointment for her husband.

However, her failure to attend the second DAC was not reasonable, as the insurer had properly scheduled a musculoskeletal DAC based on the medical evidence available at the time, and the applicant's counsel improperly refused to attend without a neurologist.

Consequently, the applicant was barred from proceeding to arbitration for income replacement benefits.

The appellant insurer appealed an arbitrator's decision finding that the respondent pedestrian and her cohabitant were not spouses, which would have shifted liability for her accident benefits to the cohabitant's insurer.

The respondent and her cohabitant had lived together for over a decade but maintained separate finances, did not share a bedroom, and denied being romantically involved.

The Director's Delegate dismissed the appeal, finding no error in the arbitrator's application of the Molodowich criteria or his conclusion that the relationship was a close friendship rather than a conjugal one.

The applicant was injured in a motor vehicle accident and received statutory accident benefits until the insurer terminated them.

The applicant failed to attend the arbitration hearing, and his representative's request to withdraw was denied due to lack of notice to the client and delay.

The arbitrator determined the applicant was self-employed but, lacking evidence of business expenses, set the income replacement benefit at the minimum of $185 per week.

The applicant was found not entitled to benefits after the termination date, and claims for a special award and expenses were denied.

The insurer's request for the return of its assessment fee was also denied as the application was not found to be frivolous or vexatious.

The appellant insurer appealed an arbitration decision finding it responsible for paying accident benefits to the injured respondent.

The injured respondent was a passenger in a vehicle insured by the respondent insurer, but was the spouse of a named insured under the appellant's policy.

The Director's Delegate held that the injured respondent qualified as an 'insured person' under the appellant's policy because she was an occupant of 'any other automobile'.

Under the priority rules, she was required to claim benefits from her spouse's insurer.

The appeal was dismissed.

The Director's Delegate also held there was no jurisdiction to award appeal expenses between insurers.

The insurer brought a preliminary motion arguing that the applicant should be precluded from proceeding to arbitration for failing to attend two insurer medical examinations and failing to comply with production orders.

The arbitrator found that the first medical examination was not reasonably necessary, but the second was.

However, rather than adjourning the hearing, the arbitrator ordered that the arbitration proceed on the scheduled date, with the condition that the applicant is precluded from relying on any information or documents not provided to the insurer by a specified deadline.

The arbitrator also found that the applicant's conduct did not amount to an abuse of process at this stage, and declined to award interim expenses or cancellation fees.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits from Allstate, the insurer of the vehicle that struck her.

Allstate argued that the applicant was the spouse of her roommate, who was insured by Belair, and therefore Belair should pay the benefits.

The arbitrator applied the Molodowich factors and found that the applicant and her roommate were merely friends sharing accommodation, not spouses living in a conjugal relationship.

Allstate was found responsible for paying the applicant's statutory accident benefits.

The Director's Delegate issued a correction to an appeal decision dated March 13, 1997.

The correction amended the reasons for decision to properly refer to the respondent by his surname, Arabpour, rather than his first name, Fathulla.

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

The parties signed a settlement agreement, which the applicant later disputed.

The insurer argued the agreement was a full and final release of all claims.

The arbitrator found that while the parties had reached an agreement, the disclosure statement provided by the insurer failed to comply with section 9.1(2) of the Settlement Regulation because it omitted the commuted value of future benefits.

As a result, the applicant was entitled to rescind the settlement under section 9.1(4) and proceed to arbitration.

State Farm appealed an arbitration decision finding it liable to pay statutory accident benefits to a claimant who was listed as a driver on her parents' policy but injured while an occupant in a vehicle insured by Pilot.

Pilot cross-appealed the finding that the claimant was not a dependant of her parents.

The Director's Delegate allowed State Farm's appeal, holding that being a listed driver does not make one an 'insured person' under the Statutory Accident Benefits Schedule for accidents in other vehicles.

The Delegate dismissed Pilot's cross-appeal, upholding the arbitrator's finding that the 18-year-old claimant was living independently and was not principally dependent on her parents for financial support.

Pilot was ordered to pay the accident benefits.