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Case Summary

Henry v. Aviva Canada Inc. (May 29, 2014), FSCO P13-00016 (Blackman)

Lawyer: James M. Brown

This case was an appeal decision, which overturned the decision of the arbitrator to stay a proceeding seeking a designation of catastrophic impairment and various benefits due to a lack of capacity.

During the arbitration hearing, the arbitrator expressed concerns as to the claimant's legal capacity and adjourned the hearing to allow the claimant to obtain counsel. The claimant failed to attend the resumption of the hearing. The arbitrator concluded that the claimant lacked legal capacity and ordered that the proceeding be stayed indefinitely, which would have allowed the claimant to have the benefit of the interim benefits that had been awarded without having to prove entitlement at a hearing.

On appeal for the insurer, James successfully argued that the arbitrator had failed to follow the correct procedure under the Dispute Resolution Practice Code, which operated to the prejudice of both parties. The matter was returned to the arbitration branched for a proper hearing to determine capacity.

Contact James Brown for more details or read the full decision on The FSCO site. Note: a login is required.


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