Todd J. McCarthy

The insurer brought a preliminary motion seeking an order that the insured attend orthopaedic and psychiatric examinations under section 42 of the Statutory Accident Benefits Schedule, and a stay of the arbitration proceedings pending her attendance.

The arbitrator found that the orthopaedic examination was not reasonably necessary, as the insurer already had sufficient medical information and there was no new diagnosis or change in condition.

However, the psychiatric examination was found to be reasonably necessary because the insured's physician had recommended it and she had not yet been psychiatrically assessed in respect of the proceedings.

The arbitration was stayed pending the insured's attendance at the psychiatric assessment.

The insurer appealed an arbitrator's decision awarding the insured 8.3 weeks of non-earner benefits, arguing the arbitrator erred in finding the insurer had conceded entitlement.

The insurer relied on a transcript of the hearing to prove no concession was made.

However, the stenographer who produced the transcript had not been sworn in by the arbitrator as required by section 22(3) of the Insurance Act.

The Director's Delegate held that an unsworn transcript does not form part of the official appeal record and cannot take precedence over the arbitrator's express findings of fact.

The appeal was dismissed.

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

The insurer terminated caregiver benefits, and the applicant applied for arbitration.

The insurer raised a preliminary issue that the application was filed outside the two-year limitation period under section 51(1) of the Schedule.

The applicant conceded the issue at the hearing.

The arbitrator found the applicant was precluded from proceeding and awarded $500 in expenses to the insurer.

The plaintiff suffered injuries at the defendant's amusement park but failed to commence an action within the two-year limitation period under the Limitations Act, 2002 due to lawyer inadvertence.

The motion judge applied the common law doctrine of special circumstances to extend the limitation period.

The Court of Appeal allowed the defendant's appeal, holding that the Limitations Act, 2002 is a comprehensive scheme that does not preserve the court's common law discretion to extend limitation periods based on special circumstances.

The action was declared statute-barred.

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

The insurer denied claims for income replacement benefits, housekeeping benefits, and functional assessments.

After mediation failed, the applicant applied for arbitration.

The insurer raised a preliminary issue that the arbitration application was filed beyond the two-year limitation period and the 90-day period following the mediator's report.

The arbitrator found that the insurer clearly refused the benefits and that the applicant failed to apply for arbitration within 90 days of the mediator's report.

The arbitration was dismissed as time-barred.

The parties sought a determination of legal expenses following an appeal and cross-appeal regarding statutory accident benefits.

The insurer's appeals were dismissed, and the insured's cross-appeals were also dismissed.

The Director's Delegate awarded the insured his legal expenses for the insurer's appeals, fixed at $7,514.52, but declined to award any costs for the cross-appeals, noting that the insurer was uniformly unsuccessful in its appeals and the insured did not seek costs for the cross-appeals.

The appellant, who was catastrophically injured in a motor vehicle accident, appealed an arbitration decision that awarded him an additional $37.10 per month in attendant care benefits on top of the amounts paid by the insurer to his long-term care facility.

The appellant argued he was entitled to $5,474.74 per month based on an occupational therapist's Form 1, and raised new issues regarding the insurer's failure to arrange a DAC assessment and the deduction of co-payments.

The Director's Delegate dismissed the appeal, finding that the new issues were not raised at the arbitration hearing and that the Arbitrator did not err in law in her treatment of the Form 1, as the onus remained on the appellant to prove the expenses were reasonable and necessary.

The insurer appealed arbitration decisions that dismissed its motions to compel the insured to attend insurer examinations and ordered it to pay a special award for unreasonably delaying benefits.

The insured cross-appealed the denial of a special award for other periods of delay.

The Director's Delegate dismissed both appeals.

The Delegate found that the arbitrators did not err in law in refusing the insurer examinations, as the insurer had delayed its requests until after the arbitration process was well underway.

Furthermore, the insurer's concession of entitlement during the hearing precluded a finding that it was denied a fair hearing.

The Delegate upheld the special award, finding no basis to interfere with the arbitrator's assessment of the insurer's unreasonable conduct, and agreed that the insurer's delay while seeking a stay of an interim order was not unreasonable.

The applicant was injured in a motor vehicle accident while driving his former wife's uninsured vehicle.

He applied for statutory accident benefits from the insurer of the other vehicle.

The insurer argued the applicant was excluded from receiving income replacement and housekeeping benefits under s. 30(1)(a) of the Schedule because he knew or ought reasonably to have known the vehicle was uninsured.

The arbitrator found that the applicant was principally responsible for arranging insurance on the vehicle and had been notified of the policy's cancellation 14 months prior to the accident.

The arbitrator concluded the applicant ought reasonably to have known the vehicle was uninsured and dismissed his claims for those benefits.

The appellant appealed a jury's damage assessment and several evidentiary and procedural rulings by the trial judge, including the handling of an improper question during cross-examination, the exclusion of employment records, and the denial of a request for an assignment of long-term disability benefits.

The Court of Appeal dismissed the appeal, finding the jury's verdict was not perverse, the trial judge's curative instruction was sufficient, and the employment records were properly excluded.

The court dismissed the ground regarding the assignment of benefits without prejudice to the appellant bringing a further motion on proper material.

The moving party brought a motion to vary the Court of Appeal's judgment by striking out a reference to its withdrawal of a limitation defence argument and remitting the issue to the arbitrator.

The moving party argued that because the court had overturned previous case law and found the responding party to be an insurer, it should now be able to rely on the limitation defence.

The Court of Appeal dismissed the motion, finding that the moving party had expressly conceded the issue before the arbitrator and the lower court, and therefore could not revive the argument on appeal.

The applicant was four months pregnant when she was involved in a motor vehicle accident.

She claimed caregiver benefits for services provided to the child she was carrying, who was born after the accident.

The insurer denied the claim.

The Arbitrator held that the en ventre sa mere fiction does not apply to a claim for caregiver benefits because the benefit is not a right of the child, the scheme of the Schedule does not require a principled extension of the fiction, and the language of the legislation ousts the fiction.

The applicant was therefore precluded from receiving the weekly caregiver benefits claimed.

State Farm brought a motion to adjourn or stay the arbitration hearing pending the applicant's attendance at a neurological assessment.

State Farm argued that fairness required the assessment to respond to late-filed expert reports from the applicant's neurosurgeon, relying on the underlying reasoning in F.S. and Belair rather than section 42 of the Statutory Accident Benefits Schedule.

The arbitrator dismissed the motion, finding that the hearing was still months away, State Farm had prior opportunities to assess the applicant, and fairness did not require an additional assessment outside the normal section 42 process at this time.

The Motor Vehicle Accident Claims Fund paid death and funeral benefits to the family of an uninsured passenger killed in a motor vehicle accident.

The Fund sought reimbursement from the respondent insurer and initiated arbitration under O. Reg. 283/95.

The respondent objected, arguing the Fund was not an 'insurer' under the regulation.

The arbitrator dismissed the objection, but the appeal judge set aside the award based on previous case law.

The Court of Appeal allowed the Fund's appeal, overruling its previous decision and holding that the Fund is an insurer for the purpose of resolving disputes over the payment of accident benefits and is bound by the mandatory arbitration provisions of the regulation.

The applicant claimed statutory accident benefits from the insurer of another vehicle involved in the accident, as the vehicle he was driving was uninsured.

The insurer sought to exclude the applicant from benefits under section 30(1)(a) of the Schedule, alleging he knew or ought to have known the vehicle was uninsured.

At a preliminary issues hearing, the arbitrator ruled that the insurer bears the burden of proving all elements of the exclusion, including that the applicant was uninsured.

A ruling on the admissibility of a driver record search was deferred, and the insurer was ordered to pay $350 in costs thrown away due to an adjournment.

The appellant appealed a summary judgment decision.

The motion judge had granted summary judgment by choosing between conflicting expert opinions on the application of the Quebec Automobile Insurance Act to the facts of the case.

The Court of Appeal allowed the appeal, holding that foreign law is a question of fact and the motion judge was not entitled to look beyond the diametrically opposed expert opinions to resolve the issue on a summary judgment motion.

The summary judgment was set aside.

The applicant, who was catastrophically injured in a motor vehicle accident and resides in a long-term care facility, sought additional attendant care benefits for personal care, financial management, and clothing care provided by his family.

The arbitrator found that the daily care provided by the facility was reasonable and adequate, denying additional daily personal care benefits.

However, the arbitrator awarded a nominal monthly amount of $37.10 for financial management and clothing care services provided by family members, interpreting section 16 of the Schedule conjunctively to allow concurrent expenses for a facility and an aide.

Claims for a special award were dismissed, but interest on overdue payments was granted.

The applicant, who suffered a moderate brain injury in a pedestrian motor vehicle collision, sought interim attendant care benefits after the insurer terminated them.

The insurer relied on a Designated Assessment Centre (DAC) report suggesting the applicant's need for supervision pre-dated the accident due to ADHD.

The arbitrator found significant flaws in the DAC report, including procedural irregularities and a failure to consider whether the accident exacerbated pre-existing vulnerabilities.

Finding that the applicant established a compelling prima facie case for entitlement and urgency due to safety risks, the arbitrator ordered the insurer to pay interim attendant care benefits pending a full arbitration hearing.

The applicant sought to fix the quantum of a special award previously ordered against the insurer for unreasonably delaying the payment of income replacement benefits, housekeeping benefits, and interest.

The arbitrator applied the Persofsky factors, considering the insurer's blameworthiness, the harm to the financially vulnerable applicant, and the need for deterrence.

The arbitrator fixed the total special award at $26,250 and amended the previous order to explicitly require the insurer to pay $8,286.82 in outstanding interest.

The insurer brought a motion to adjourn the arbitration hearing pending the outcome of its application for judicial review of a prior appeal decision regarding the deductibility of a pension plan.

The arbitrator dismissed the request for a lengthy adjournment, noting the absence of an automatic stay and the need for an expeditious process.

However, the arbitrator granted a short adjournment to allow the insurer time to review and respond to an accountant's report that the applicant had served late.