5 total
Insurer ordered to produce claims file after failing to establish evidentiary basis for privilege claims.
The applicant sought production of the insurer's file in a dispute over statutory accident benefits.
The insurer claimed solicitor-client privilege, litigation privilege, and lack of relevance over various documents, including an investigation report previously disclosed.
The arbitrator found that the insurer failed to establish the evidentiary foundation for its privilege claims, noting that the claims investigation phase requires neutrality rather than an orientation toward litigation.
The insurer was ordered to produce the disputed documents, including the dates reserves were set, but not the reserve amounts.
Registrar’s dismissal for delay set aside despite limited affidavit evidence.
The plaintiffs moved to set aside a registrar’s order dismissing their action for delay under rule 48.14 of the Rules of Civil Procedure after failing to set the action down for trial by a deadline established at a status hearing.
Applying the contextual approach articulated in Court of Appeal jurisprudence, the court considered factors including the explanation for delay, inadvertence in missing the deadline, promptness in bringing the motion, and prejudice to the defendants.
Although the affidavit evidence explaining the delay was limited, the record demonstrated the action had progressed through discoveries and expert reports and that counsel’s failure to meet the deadline was inadvertent rather than deliberate.
The defendants filed no evidence of prejudice and other related actions arising from the same accident remained active.
Balancing the relevant considerations and the principle favouring determination on the merits, the court set aside the registrar’s dismissal order but declined to award costs due to the plaintiffs’ responsibility for the missed deadline.
Appeal of accident benefits denial dismissed; cross-appeal on taxability of EI benefits allowed and remitted.
The appellant appealed an arbitrator's decision denying her claims for increased income replacement benefits (IRBs) based on self-employment losses, lost educational expenses, and an additional death benefit following the death of her daughter in a motor vehicle accident.
The respondent cross-appealed the arbitrator's finding that the appellant's Employment Insurance (EI) benefits were not taxable income.
The Director's Delegate dismissed the appellant's appeal, upholding the arbitrator's findings that pre-accident business losses are not recoverable, the $400 weekly IRB cap applied, the appellant was not enrolled in an educational program at the time of the accident, and she did not qualify as a dependant for the additional death benefit.
The Delegate allowed the respondent's cross-appeal, finding the arbitrator erred in law by not recognizing EI benefits as taxable income under the Income Tax Act, and remitted the IRB calculation back to the arbitrator.
Insurer ordered to pay ongoing IRBs and a special award for unreasonably calculating self-employment income.
The applicant sought statutory accident benefits following the death of her daughter in a motor vehicle accident.
The insurer disputed her entitlement to ongoing income replacement benefits (IRBs), alleging she failed to submit a disability certificate, a treatment plan, and failed to attend scheduled examinations.
The arbitrator found the applicant was not precluded from receiving IRBs, as her failure to attend examinations and pursue rehabilitation was reasonably explained by her severe mental illness related to the accident.
The arbitrator also determined the proper calculation of her pre-accident income, ruling that her self-employment benefits should be treated as Employment Insurance benefits.
Finally, the arbitrator granted a special award against the insurer, finding it acted unreasonably in calculating the quantum of her IRBs by relying on an accounting approach that contradicted established jurisprudence.
Pre-accident self-employment losses are not deducted from gross income when calculating income replacement benefits.
The applicant sought to add several issues to her arbitration for statutory accident benefits following the death of her daughter in a motor vehicle accident.
The arbitrator denied the request to add the issue of catastrophic impairment because the applicant unreasonably failed to attend section 42 assessments.
However, claims for a chronic pain treatment plan and related transportation expenses were added.
On the substantive preliminary issues, the arbitrator ruled that the applicant was not entitled to a death benefit under section 25(3) of the Schedule.
Furthermore, the arbitrator held that the applicant's pre-accident losses from self-employment should not be deducted from her income from other sources when calculating her gross income for income replacement benefits.
