Victoria Anteby

The defendants brought a motion to dismiss the action for delay under Rule 24.01(1) of the Rules of Civil Procedure, citing the plaintiffs' two years of inaction and failure to respond to correspondence.

The plaintiffs argued the defendants were in default for not delivering affidavits of documents and offered an explanation for their delay.

The court found the defendants were not in default due to rule amendments and rejected the plaintiffs' explanation as incredible.

However, the court declined to dismiss the action, noting that "contumelious" delay typically requires serial violations of court orders, which was not present.

The motions were dismissed without prejudice, but the plaintiffs were ordered to pay $11,000 in costs to the defendants and to deliver their affidavit of documents within 30 days, with defendants to follow 30 days thereafter.

The appellant insurer appealed an arbitration decision awarding the respondent insured various statutory accident benefits, including attendant care, a hot tub, massage therapy, psychological counseling, and ergonomic equipment, as well as a special award and legal expenses.

The Director's Delegate dismissed most of the appeal, finding no errors of law in the Arbitrator's awards for the benefits, interest, and the special award, noting the insurer unreasonably withheld payments by relying on flawed medical assessments that applied incorrect legal tests.

The Delegate found the Arbitrator erred by failing to provide reasons for allowing an increased claim for ergonomic equipment and for awarding legal expenses.

With the parties' consent, the Delegate redetermined these issues, denying the increased equipment costs but awarding the original amount plus HST, and fixing the respondent's arbitration legal expenses at $95,633.79 and appeal legal expenses at $24,179.67.