The issues in the hearing were twofold. The first issue was whether the arbitration should be dismissed as the Applicant had failed to attend three pre-hearings. In dismissing the arbitration, Arbitrator Wilson found that the solicitor of record breached his undertaking to ensure the Applicant’s attendance and had no reasonable explanation for having done so. It was found that Mr. Luskin’s solicitor’s conduct was both unexplained and unjustified and the handling of the claim was described as “caus[ing] expenses to be incurred without reasonable cause by advancing a frivolous or vexatious claim on behalf of the insured person,” in accordance with Section 282(11.2) of the Insurance Act. Secondly, if the arbitration should be dismissed, the question was whether either or both of the applicant and his counsel be responsible for the expenses of the insurer. It was ordered that the Applicant and the solicitor of record were jointly and severally liable for the costs associated in this matter.
At the pre-hearing, the Applicant requested the production of particulars related to surveillance conducted on behalf of Royal, irrespective of whether Royal intended to rely upon the surveillance at the hearing. At the time of the pre-hearing, Royal had acknowledged that it conducted surveillance of the Applicant, however, had not yet decided whether or not it would rely upon any part of the surveillance. Arbitrator Muir determined that the Applicant was not entitled to an Order requiring the production of particulars related to the surveillance undertaken by Royal, irrespective of whether or not Royal intends to rely upon it. Arbitrator Muir stated that he was bound by the Puljic and Zurich decision, where the claimant’s request for an order for the insurer to produce any surveillance evidence prior to the insurer having made a determination as to whether or not it intended to rely upon the evidence was declined. Alternatively, even if Arbitrator Muir was not bound by this decision, he stated that he agreed with the interpretation of Rule 37.1 of the Practice Code, utilized in Puljic, which finds that the obligation to produce such evidence only arises when the insurer decides "to rely on any portion of surveillance or investigative evidence."
The parties disagreed on entitlement to both weekly income replacement benefits and other benefits. There were two questions at issue, the first one being whether long term disability payments are "net weekly payments for loss of income...under any income continuation benefit plan." In determining these payments as deductible pursuant to Section 7(1)1.i of the Schedule, Arbitrator Rogers found "‘weekly payments’ [to] signif[y] the period of calculation of the deduction, rather than the period of receipt of the benefit." The second question posed was whether the claimant was "self-employed" for the purpose of calculating his income replacement benefit. In finding the claimant "self-employed," Arbitrator Rogers found the following indicia indicative of self-employment: having no fixed office, no requirement to attend at office, the principal place of business as the home, no control exerted over claimant, being free to decide how much time is dedicated to the pursuit, retaining an accountant and treating the enterprise as a business for tax purposes, and not being aware of rules of conduct.
The Personal sought indemnification from ING in a loss transfer case. This decision was an appeal of a private arbitration decision where it was determined that ING owed the Personal indemnification. Justice Morissette determined that given an arbitrator's expertise assessing facts and determining meaning within the SABS, the proper standard of review is that of reasonableness. Justice Morisette determined that s. 66 of SABS connotes a two part test involving whether a vehicle was "available" for the insured's "regular use". Justice Morisette applied a "reasonable" and "common sense" definition for "available" and "regular use", concluding that one need not have exclusive or personal use in order to be deemed to have regular use of a vehicle. As a result of her conclusions The Personal was found to be entitled to indemnification from ING.
