At issue was whether the Applicant’s eligibility for Statutory Accident Benefits should be determined by the Financial Services Commission, or by an Arbitrator appointed under the Arbitrations Act, 1991, who have been given authority to determine questions of priority between Insurers. The Priorities Regulation was created to guarantee that persons entitled to Accident Benefits are not waiting for payment while a dispute between Insurers over who should pay is determined. As such, since 1995, priority disputes are regulated by private Arbitrators under the Act. The Financial Securities Commission can consider determination of what benefits the Applicant is entitled to. The determination of who pays those benefits, if in question, is left to the Priorities Regulation. The Arbitrator in this case found that the Applicant could have a hearing to determine her entitlement to income replacement benefits, as well as medical and rehabilitation benefits. The determination of which Insurer shall pay the benefits was to be heard by an Arbitrator under the Arbitration Act, 1991.
Having been paid Accident Benefits, the Insured was subsequently found to have claimed those benefits through fraud and ordered to repay them. A separate tort action resulted in the claimant receiving a settlement from the defendant in that action. Belair sought a garnishment order served upon counsel for the plaintiff. Belair sought production of Counsel’s dockets, with redactions for solicitor client privilege. Counsel argued that the dockets were privileged and would not produce them. Master Sproat stated that he did not accept that the dockets are necessarily privileged. It is common practice that dockets be reproduced in order to support a claim for costs on a motion, as well as for purposes of collection of an account. The judge hearing the motion must know the fee arrangement between the plaintiff and Counsel to determine whether the fees charged are consistent with the fee arrangement. Plaintiffs Counsel was instructed to answer the questions put forth, so that Belair could determine how much of the fees were attributable to the tort action, and thus covered under the garnishment order.
In this case, which involved a dispute over the commission to be paid to the real estate agents acting in the transaction, was to determine a motion for transfer of the case to Whitby made by the defendants. Ryan Naimark, acting for the plaintiff, argued that the trial should not be moved from Toronto. Rule 13.1.02(2)(b) sets out the relevant factors that must be considered when determining such a motion. Master Glustein found that there was no strong connection between the location of the events that would favour one of the proposed jurisdictions over another. The balance of convenience of the parties was found to be an integral factor. The location of the damages suffered favoured one venue. Master Glustein found that the advantage to either counsel in terms of location was neutral, in that neither party would be disadvantaged by having to travel to another venue, or would be equally disadvantaged. Master Glustein did find that the defendant’s concern that the case be heard in Whitby due to rumours circulating in the community was not an appropriate concern. The determination was made by Master Glustein that the defendants had not displaced the onus on them to show that the interests of justice justified the transfer of the trial to Whitby, and dismissed the motion for transfer.
In this decision argued by David Dinner, Arbitrator Murray concluded that the Applicant did not sustain an impairment in an “accident” as the term is defined in the Schedule. He had been repeatedly thrown against a work truck by a co-worker. Although there was some evidence that the mirror of the Applicant's vehicle struck the mirror of the assailant's vehicle, no impairments resulted from that contact. Arbitrator Murray applied the purpose and direct cause tests to the incident and concluded that the Applicant's alleged injuries were neither the result of the use or operation of the vehicle, or in the alternative, the Applicant's injuries were not as a direct result of the use or operation of the vehicle. ING was not liable to pay accident benefits to the Applicant.
At issue was whether the applicant in this case was obligated to repay an overpayment for income replacement benefits to the insurer. The Regulations provide that overpayments of benefits are not obligated to be re-paid unless notice is given within 12 months of the payment. The Insurer argued that the 12 month period commenced with each subsequent payment of an income replacement benefit, creating almost a “rolling limitation period”. The Arbitrator found that to avoid ambiguity, the “payment” must be interpreted as the first payment made in error. To do otherwise would be to put an unfair burden on those who are entitled to successive payments from insurers. As such, the Arbitrator found that the Applicant was not obligated to repay the income replacement benefits she had been overpaid and the Insurer was obligated to repay the amounts it had deducted from subsequent income replacement benefits to recover the overpayment.
