In Rozmerets and Goncerneco and Wawanesa, A01-000579, July 22, 2002 the applicants borrowed a Plymouth Voyager from a Mr. Sivert, whom they had been staying with since arriving from Russia in May 2000. He assured them that the vehicle was insured and gave them an insurance slip. After the applicants were involved in an accident on June 24, 2000 their claims were denied by Wawanesa on the basis that it did not insure the vehicle.

A preliminary issue hearing was held to determine whether a FSCO arbitrator had jurisdiction to determine whether Wawanesa was an insurer and whether it had an obligation to respond to the claim. Arbitrator Sone found that she had jurisdiction to determine the matter, following the reasons in Brown and Allstate Insurance Company of Canada, A97-000579, May 29, 1997, affirmed, (1998) 40 O.R. (3d) 610 (Ont.Div.Ct.) It was found that Mr. Sivert had deliberately misled the applicants as he knew that he had instructed his broker to transfer his insurance to his new car, a 1997 Chevrolet Venture on June 9, 2000. A supervisor from Wawanesa testified that the memo from the broker, dated June 9,2000 was date stamped June 23, 2000 and entered on June 30, 2000.

Based on the evidence, the arbitrator found that there was a "sufficient nexus" between the applicants and Wawanesa and "sufficient evidence" to support a preliminary finding that Wawanesa was an insurer (p.13). As the first insurer to receive a completed Application for Benefits, Wawanesa was obliged to respond to the claim, pursuant to Disputes Between Insurers O.Reg 283/95. It had not filed a Notice of Dispute under the regulation claiming that any other insurer was responsible for paying benefits to the applicants.

In Guarantee of North America and McDonald, P01-00047, July 5,2002 the insurer's appeal was allowed. In a preliminary issue hearing, an arbitrator had held that the insured could proceed to arbitration despite pleading guilty to a charge of assault under the criminal code. While drunk, Mr. McDonald got into a fight with a Mr. Staples in the tavern's parking lot and was injured while pursuing Mr. Staples as he was getting into the passenger side of a truck. Having considered s.30 of the Schedule, Director's Delegate Makepeace stated:

In my view, s.30(4) should be amended to clarify legislative intent. Nonetheless, I find its meaning clear enough. I have little doubt that it was intended to create a general exclusion with similar effect to the other exclusions in Part IX. I find that the arbitrator erred by giving insufficient attention to legislative purpose and the need to avoid absurdity. I accept Guarantee's submission that the temporal clause - 'until the charge is finally disposed of' - modifies 'the insurer shall hold in trust', and does not modify 'any amounts payable'. I find that 'any amounts payable' must be given a broad interpretation, including benefits payable before or after a conviction on a defined offence (p.13).

In Martinov and Primmum Insurance Company, A01-000684, June 28, 2002, the applicant was not permitted to proceed to arbitration on her claim for medical benefits under s.14 for treatment received at Universal Injury Rehabilitation Centre Inc. in accordance with s.50(c) of the Schedule. On April 27, 1999, Primmum received two treatment plans. Primmum advised Ms. Martinov that it did not approve of the treatment plans and arranged a Med/Rehab DAC, pursuant to s.38(12). On May 28th,1999 Ms. Martinov's agent advised Primmum that the treatment plans were withdrawn and requested that the DAC be cancelled. Arbitrator Skinner found that the applicant had acted unreasonably in withdrawing the treatment plans prepared by Universal, thereby obviating the requirement of her attendance at the DAC, and then proceeding to apply for mediation on the cost of the very treatments contemplated in them(p.8). The arbitrator also ruled that Primmum was not required to pay for the first 15 treatment sessions at Universal Injury, stating:

Subsection 38(16) contemplates that the insurer will be required to pay for a certain number of treatments provided by a physiotherapist or chiropractor. There was no evidence introduced as to the type of treatments which Ms. Martinov received at Universal. The invoices merely indicate that she received "treatments."(p.16)

In Poon and State Farm, A01-000442, June 27, 2002 both parties were denied their expenses. Arbitrator Sampliner found that the representatives had unduly prolonged the hearing with irrelevant repetitive questioning and overly technical objections (p.10). In Dacosta and Dominion, A00-000214, July 17,2002, Arbitrator Miller awarded the unsuccessful applicant his expenses. The insurer's representative was criticized for conducting a lengthy and mostly irrelevant cross-examination of the applicant and for requesting a separate expense hearing