Hathaway-Warner v. TD General Insurance Company (2024 ONSC 2511)

The claimant appealed the Tribunal’s decision relating to proper hourly rate for ACBs, whether she had incurred attendant care services, whether she required supervisory care, whether she required home modifications, and the cost of a home modification assessment. The Court upheld the Tribunal’s decision on all points. The claimant’s accident occurred on July 14, 2010. The claimant argued that the most recent hourly rates and Guidelines for attendant care services should apply. The insurer argued that the rates in place in 2010 applied. The Court upheld the Tribunal’s decision that the 2010 rates applied based on the language of the transitional provisions in the SABS. The Court upheld the Tribunal’s decision finding that the insurer’s Form 1 related to supervisory care was based on the evidence before the Tribunal, which showed that the claimant would be self-sufficient in an emergency. The Court upheld the Tribunal’s decision that the claimant’s psychological impairments did not support the need for home modifications. Finally, the Court rejected the claimant’s Charter arguments that the Tribunal’s differential treatment of psychological and physical injuries breached her rights, finding that the very nature of the SABS requires that such distinctions must be made when considering entitlement to benefits.

Fagundes v. Intact Insurance (2024 ONSC 2575)

The claimant appealed the Tribunal’s decision that she was not entitled to post-104 week IRBs. The Court dismissed the appeal. The Court held that there was considerable evidence on which the Tribunal relied in coming to its conclusion, and the Tribunal was entitled to weigh and prefer the expert evidence of the insurer over the claimant. The Court also rejected the argument that the Tribunal applied the wrong test by using the approach in Traders General v Rumball rather than Burtch v. Aviva. The Court wrote that under either approach, the claimant had not proven a complete inability to engage in any employment or self-employment.

Laljee v. Aviva General Insurance Company (2024 ONSC 2577)

The claimant appealed the Tribunal’s dismissal of her claim for a catastrophic impairment designation and various treatment plans. The Court dismissed the appeal, finding that there was no merit to the claimant’s arguments. The claimant had not been denied procedural fairness, and had been provided with all documentation referred to during the hearing. The Tribunal’s findings of fact were based on the ample evidence before it, as was the conclusion that the claimant’s impairments were largely a result of pre-existing conditions.

Nouracham v. Aviva General Insurance Company (2024 ONSC 2415)

The claimant appealed the Tribunal’s decision that she was not entitled to IRBs because she was not employed at the time of the accident. The Court dismissed the appeal. The claimant was “on call” with a temp agency, and occasionally worked at a factory for one day or several days at most. She had not worked for six weeks at the time of the accident, and she had not worked for at least 26 of the prior 52 weeks. She had worked nine of the prior 17 weeks for between 11 and 26 hours in each of those weeks. The Tribunal applied the Court’s decision in Arab v. Unica in concluding that the claimant was not “employed”. The Court held that the Tribunal properly applied the analysis in concluding that the claimant was not employed, even though she was “on call” and potentially could be called in.

Shahin v. Intact Insurance Company (2024 ONSC 2059)

The claimant appealed the Tribunal’s conclusion that she did not suffer a catastrophic impairment. She argued that she was denied procedural fairness due to: (i) failure by the Tribunal to make the insurer’s expert re-attend for cross-examination, (ii) by the Tribunal deciding causation when it was not argued by the parties; and (iii) by the Tribunal’s reference to documents that were not discussed by the parties or witnesses. The Court agreed that the Tribunal breached procedural fairness due to each of the three argued reasons. The Court remanded the dispute to the Tribunal for a new hearing.

Keulen v. Allstate Insurance Co. (2024 ONSC 2033)

The claimant appealed the Tribunal’s decision that it did not have jurisdiction to award punitive damages. The Court dismissed the appeal, holding that the Tribunal correctly interpreted its jurisdiction, which was limited to matters provided for in the SABS. The only non-benefit the Tribunal could award was a section 10 award. The Court also rejected the argument that the Court retained jurisdiction to award punitive damages. The Court held that any jurisdiction the Court formerly had over accident benefits disputes was removed by section 280 of the Insurance Act.

Travis v. Aviva Insurance Company (2024 ONSC 1683)

The claimant appealed the Tribunal’s decision that his injuries were not the result of an accident. The claimant was a firefighter who responded to the 2018 van attacks in Toronto where 10 people were killed. The claimant arrived at the scene after the incident, and was confronted with the bodies of the deceased and injured victims. He suffered psychological trauma as a result. He initially applied to WSIB, but was eventually denied after he was found capable of returning to work. He then applied for accident benefits. The Court dismissed the appeal, holding that the Tribunal correctly concluded that the claimant’s injuries were not a direct result of the use and operation of a vehicle. The firetruck that brought the claimant to the scene of the accident did not cause the claimant’s injuries, and the rental van was not in use by the time the claimant arrived at the scene.

Ravilotchanan v. Allstate Insurance Company of Canada (2024 ONSC 1629)

The claimant appealed the Tribunal’s decision that she was responsible for repayment of $23,600 in IRBs and $5,970.92 in ACBs. The Tribunal ordered the repayment based on the claimant working as a PSW at the same time she was receiving benefits. The disclosure of the information was made after the claimant had received a substantial amount of IRBs and ACBs. The Court dismissed the appeal, holding that the Tribunal did not make any legal error, and the claimant failed to identify any extricable legal error. The factual findings made by the Tribunal were supported by the evidence and were determinative of the claim.

Jiang v. The Co-operators General Insurance Company (2024 ONSC 1225)

The claimant appealed the Tribunal’s decision that she was not involved in an accident. The claimant sustained injuries when she was driving and her husband physically assaulted her. She subsequently lost control of her vehicle and hit the curb. The Tribunal held that the assault was an intervening event that broke the chain of events, and that the dominant feature of her alleged injuries was the assault, while the use or operation of the vehicle was ancillary. The Court partially reversed the Tribunal, holding that the claimant’s alleged injuries after losing control of her vehicle may have been directly caused by the use or operation of an automobile and therefore might be considered an “accident”. The issues of whether and to what extent the claimant’s injuries were sustained as a result of her loss of control of the vehicle were remitted to the Tribunal to be determined at a hearing.

Adams v. Aviva Insurance Company (2024 ONSC 715)

The claimant appealed the Tribunal’s decision that her late application barred her claim for accident benefits. The accident was on August 28, 2018. The claimant notified the insurer of the accident on June 13, 2019. The Tribunal held that the claimant did not have a reasonable excuse for the delay, and dismissed the application. The Divisional Court allowed the appeal and directed the matter to a new adjudicator. The Court held that the Tribunal erred in not considering the interplay between section 32(10), section 34, and section 55.