The claimant appealed the Tribunal’s decision that he was bound by a settlement. He argued that the allocation of $0 to certain benefits showed that those benefits were not settled. The Court rejected the claimant’s arguments and dismissed the appeal. The SDN and Release were clearly a settlement of all claims arising out of the accident. Additionally, the claimant had not repaid the settlement funds to the insurer, which barred him from advancing the claim to resile from the settlement.
The claimant appealed the Tribunal’s denial of a $365,257 home modification to the claimant’s daughter’s home. The Court granted the appeal with immediate effect, ordering the insurer to pay the home modifications, with written reasons to follow. The Court explained that the claimant’s age made it unfair for the matter to be remitted to the Tribunal for a new hearing, and that the claimant required the modifications to ensure she did not suffer another injurious fall.
The claimant appealed the Tribunal’s decision that she did not suffer a catastrophic impairment. The Court held that the Tribunal came to an unreasonable conclusion with respect to the WPI ratings for double vision, peripheral neuropathy, and medications. The adjudicator took a rigid view of the AMA Guides and refused to provide any WPI for double vision when there was ample evidence with objective testing to support as much as a 24 percent WPI rating. The adjudicator was also unreasonable in refusing to rate WPI for peripheral neuropathy based on his own error in referencing the wrong tables and pages in the Guides, and then refusing to adjust the error on reconsideration. Similarly, the adjudicator’s refusal to rate WPI for medications was unreasonable when he was directed to an error in his factual findings regarding the medical evidence. The Court dismissed the other grounds of appeal, and remitted the matter to the Tribunal for a new hearing.
The claimant sought judicial review of the LAT’s decision that he was not entitled to IRBs, and the LAT’s refusal to add the claim for pain and suffering. The Divisional Court dismissed the judicial review, holding that the Tribunal considered the evidence before it when adjudicating the IRB claim, and that the Tribunal reasonably declined to add a claim for pain and suffering.
The claimant appealed the Tribunal’s decision that he was not insured under the Coachman policy due to the policy being cancelled, and that Coachman was not required to open a claim. The Court dismissed the appeal, holding that the Tribunal correctly found that the claimant was not an insured under the policy, and it was therefore not required to accept the claim. The Court held that the Supreme Court’s decision in Zurich v. Chubb was not applicable, because that case related to a dispute with two active policies.
The claimant appealed the Tribunal’s decision that his IRB claim was barred by the limitation period. The claimant initially made an application for IRBs, but the returned to full time work. The claimant subsequently went off work more than three years later. He argued that his IRB claim was not discoverable until he went back off work. The Tribunal disagreed, holding that the insurer’s denial of IRBs when the claimant returned to work was sufficient to trigger the limitation clock, and that the claimant did not dispute entitlement within two years. The Court dismissed the appeal, holding that the Tribunal applied the law correctly. The Court held that the initial denial was clear and unequivocal. Subsequent communications by the insurer regarding calculation of the IRB for the period the claimant was initially off work did not re-start the limitation clock. Finally, the Court held that the claimant did not discover his claim for IRBs after going off work a second time, and that the claimant could not “re-apply” for post-104 week IRBs.
The claimants applied to Economical for accident benefits following an accident. The claimants also had insurance with Heartland that carried optional benefits. The claimants sought to re-apply for accident benefits to Heartland after realizing that the Economical policy did not carry optional benefits. Heartland refused to allow the claimants to re-apply for benefits. The Tribunal initially granted the claimants the right to re-apply to Heartland based on the “relief from forfeiture” provisions of the Insurance Act. That decision was overturned on reconsideration. The claimants appealed the reconsideration decision. The Divisional Court allowed the appeal, and granted the claimants the right to re-apply to Heartland for accident benefits so that they could access their optional benefits. The Court affirmed that the Tribunal had the power to allow relief from forfeiture under the Insurance Act. The Court also held that the OPCF47 endorsement that granted the optional benefit could not be used by Heartland as a shield to prevent the re-application after the initial application had been made to Economical.
The claimant appealed the Tribunal’s decision that he was not entitled to IRBs. The Court dismissed the appeal, holding that the claimant received a fair hearing, and that the alleged uneasonableness in factual and evidentiary findings was not proven. The record showed no unreasonableness in the Tribunal’s findings or inferences drawn from the findings.
The claimant appealed the Tribunal’s decision that he had not given adequate notice to the insurer of his intention to claim benefits. The claimant had been involved in an accident in February 2019, and reported the accident and physical damage to the vehicle one day later. The insurer did not advise the claimant of his right to claim benefits nor did it provide accident benefits forms to the claimant. Only 20 months later did the claimant apply for accident benefits after learning from a paralegal that he had a right to make a claim. In the interim, he had been paying for treatment and was experiencing declining psychological health, and was unable to work. The Court granted the appeal, holding that the claimant’s call to the insurer the day after the accident was sufficient notice of his intention to claim benefits. The Court held that it was incumbent on the insurer to advise the claimant of his right to claim accident benefits, or at a minimum, to clarify if the claimant had any injuries from the accident. The insurer’s failure to provide an accident benefits package or notify the claimant of his potential entitlement was to its own detriment, and it would be against the consumer protection purpose of the SABS to allow the insurer to bar the claim.
The applicant requested reconsideration of the Tribunal’s decision. The hearing adjudicator dismissed the request (2024 CanLII 102098). The adjudicator did not agree that s. 280(1) of the Insurance Act could be interpreted as providing jurisdiction to determine the rate to be paid for attendant care. The adjudicator also did not agree that it was an error of law to require a breakdown of what services were provided and for how long they were performed. Lastly, the adjudicator found that finding that Bulletin A-03/18 limited the Form 1 to calculating the amount of attendant care to be paid was not inconsistent with the principles in Malitskiy v. Unica Insurance, 2021 ONSC 4603 for the purpose of applying the ratio method for paying for attendant care.
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Toronto, Ontario M5H 3S5
416.507.1850
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