Category: Divisional Court

Micanovic v. Intact Insurance (2022 ONSC 1566)

The claimant appealed a production order made by the Tribunal for him to produce personal and corporate income tax records from his housekeeping provider. The Divisional Court granted the appeal and set aside the order. The Court explained that even though the production order was interlocutory, the order was “fatally flawed” and had to be set aside. First, the Tribunal erred in its understanding of the housekeeping claim. The productions were ordered produced on the belief that an economic loss was being advanced by the claimant and service provider. To the contrary, the housekeeper stated that she was acting in the course of employment though a company that existed prior to the claimant’s accident. Second, the Tribunal believed that the housekeeping provider was the spouse of the claimant. That finding was an error and not supported by any evidence, nor argued by either party. Finally, the claimant had no control or power to produce the records of the housekeeper, and could therefore not be ordered to produce the records.

Aviva Canada Inc. v. McNamara (2022 ONSC 1462)

The insurer appealed the Tribunal’s decision that the claimant was entitled to IRBs during a period of section 33 non-compliance. The Tribunal found that the claimant’s explanation for the delay in providing records was reasonable because she thought the insurer had access to her medical records by way of signed authorization, and that she was suffering from post-traumatic stress. The insurer argued that the Tribunal erred by applying subjective factors to the reasonable explanation. The Court dismissed the appeal, holding that the reasonable explanation under section 33 was not a strictly objective test, and that the reasonableness of the explanation had to be considered in the context of the particular claimant and take into account the remedial nature of the SABS.

DeGroot v. Licence Appeal Tribunal (2022 ONSC 6160)

The claimant appealed the Tribunal’s decision awarding IRBs of $161.11 per week up to October 6, 2020, and declining to award any IRBs thereafter. The claimant also appealed the dismissal of the special award claim. The Court dismissed the appeal, holding that the Tribunal’s weekly IRB award was accurate in light of the claimant’s accounting report, and that the $185 minimum for IRBs after the 104 week mark could be reduced by post-accident income. Regarding IRBs beyond October 6, 2020, the Court held that the Tribunal did not err in dismissing the issue, as the claimant had not put evidence of an IRB calculation beyond that date before the Tribunal, and the issue appeared to be moot as the insurer had conceded payment of $400 per week for that time period after the Tribunal’s decision was released. The Tribunal’s decision that the issue was moot was entitled to discretion. Finally, the Court held that the Tribunal’s decision to not grant a special award properly considered relevant factors in coming to the decision to dismiss the claim.

Sharma v. Allstate Insurance (2022 ONSC 803)

The claimant appealed the Tribunal’s decision that she was barred from disputing NEBs due to the limitation period. She missed the limitation period by five days. The Court allowed the appeal, and ordered the Tribunal to rehear the preliminary limitation defence with a new adjudicator. The Court held that the Tribunal erred in three ways. First, the Tribunal improperly considered the length of the delay by considering the 735 days since the denial of NEBs rather than just the five day delay. Second, the Tribunal improperly analyzed the prejudice to the insurer by considering the prejudice that may have arisen during the entire 735 days since the denial of NEBs rather than the prejudice arising over the five day delay. Third, the Tribunal erred by excluding in reconsideration a new email from the claimant’s counsel to the insurer sent on the date the limitation period expired asking if the claimant had been paid NEBs.

Pereira v. Aviva (2022 ONSC 688)

The claimant appealed the Tribunal’s decision that he was not entitled to certain medical benefits because services were incurred prior to submission of a treatment plan, and that he could not add new claims for NEBs and a special award in his written submissions. The Divisional Court dismissed the appeal in its entirety. First, the Court held that the LAT was entitled to govern its own procedure, and there was no issue of law raised in the Tribunal’s refusal to allow additional issues in the original hearing. The claimant was free to commence a new LAT application for the new issues. Second, the Tribunal did not err in its application of section 38(2) which required the submission of a treatment plan prior to incurring a medical benefit. Further, the application of section 38(2) to the claim was one of mixed fact and law, which the Court did not have jurisdiction to interfere with.

Pafco Insurance Company v. Sahadeo (2022 ONSC 328)

The insurer appealed the Tribunal’s preliminary order excluding surveillance at an upcoming hearing. Justice Corbett dismissed the appeal, holding that it was premature and an abuse of process. If the insurer is ultimately unsuccessful at the hearing and if it decides to appeal, it will be open to the insurer to raise the issue of the Tribunal’s exclusion of surveillance as a basis for appeal.

Lockyear v. Wawanesa Mutual Insurance Company (2022 ONSC 94)

The claimant appealed the Tribunal’s decision that he did not suffer a catastrophic impairment due to a GCS score less than 9. The primary grounds for appeal were the Tribunal’s refusal to admit video evidence of the accident and treatment by EMS, and the Tribunal’s decision to allow an IE expert to comment on matters outside of the written report. The Court held that the Tribunal breached the claimant’s right to procedural fairness on both grounds. First, the Tribunal ought to have allowed the video evidence to be submitted as it was relevant and could be probative of the claimant’s GCS score immediately after the accident. Second, the Tribunal ought to have allowed the claimant relief after the IE expert gave opinion evidence not contained in his written report. The Tribunal could have adjourned for a short period to allow counsel to prepare for cross-examination. The Tribunal also could have allowed the claimant to recall his own expert to give reply evidence. The Tribunal’s refusal to allow either was procedurally unfair to the claimant because it denied him an equal opportunity to address the new evidence. The matter was returned to the Tribunal for a new hearing before a new adjudicator.

Patchett v. Optimum Insurance Company (2021 ONSC 8466)

The claimant appealed the Tribunal’s decision that she did not suffer a catastrophic impairment under the Spinal Cord Independence Measure III (“SCIM”), also known as Criteria 2(iii). The Court upheld the Tribunal’s decision, concluding that Adjudicator Boyce was correct in law to dismiss the catastrophic impairment application because the claimant did not suffer a permanent alteration of function in her leg. The Court agreed that a temporary alteration in leg function did not satisfy the section 2(iii) catastrophic impairment definition. The Court also noted that the Tribunal’s decision was based on an agreed statement of fact that the claimant’s SCIM score had improved above 5, which necessarily implied that the claimant’s leg impairment (measured 10 months earlier as a 4 under the SCIM) was not permanent.

Varriano v. Allstate (2021 ONSC 8242)

The claimant was in an accident in September 2015. He was paid IRBs until December 2015. In a December 30, 2015 EOB letter, the insurer notified the claimant that: “Your Income Replacement Benefit has been stopped on December 2, 2015, as you returned to work full-time on December 2, 2015. No further Income Replace Benefit will be paid after this date.” In July 2018, the claimant applied to the insurer to resume his IRBs on the basis that he was forced to stop working as a result of accident-related injuries. The insurer denied the claim, stating: “Please refer to our explanation of benefits dated December 30, 2015. Our position remains unchanged.” In September 2018, the claimant applied to the LAT seeking entitlement to IRBs. The insurer argued that the claim for IRBs was time-barred because the claimant failed to apply to the LAT within two years of the December 30, 2015, IRB termination letter. The issue before Adjudicator Boyce was whether the December 2015 letter complied with the requirement in s. 37(4) of the SABS to provide “medical and any other reasons” for the decision to terminate IRBs. Adjudicator Boyce found that the insurer was not required to provide medical reasons for its denial of IRBs under s. 37(4), the December 2015 letter was a proper refusal under s. 56 of the SABS, and the limitation period had expired. A request for reconsideration was dismissed. The claimant appealed to the Divisional Court. Justice Mandhane allowed the appeal, finding that the December 2015 letter did not comply with s. 37(4) or case law requirements for medical and other reasons because it did not refer at all to the claimant’s medical condition or the specific provisions of the SABS that it relied upon to deny benefits. Justice Mandhane held that “insurers are not required to manufacture medical reasons where they do not exist, but to be explicit as to whether or not such medical reasons support denying or limiting coverage. If they explicitly deny having medical reasons to support their determination, the Applicant will come to understand that their disability or “impairments” is not currently in issue.” Pursuant to the Court of Appeal decisions in Sietzema and Bonaccorso, the insurer argued that even if the reasons in the December 2015 letter were deficient, the limitation period was triggered because the denial was clear and unequivocal. Justice Mandhane found that “Sietzema and Bonaccorso are of limited assistance because the Court was considering the proper interpretation of the pre-2010 SABS, which did not explicitly require ‘medical and any other reasons’ as part of the insurer’s decision to deny IRBs. The Court of Appeal’s narrow focus on the clarity of the insurer’s ultimate decision to deny benefits cannot be justified in the face of the legislature’s 2010 amendments….” Justice Mandhane found that the December 2015 letter was not a valid refusal and did not trigger the running of the limitation period.

Awada v. Allstate Insurance Company (2021 ONSC 8108)

The insurer appealed a production order made by the Tribunal in advance of ongoing proceedings. The Court dismissed the appeal as premature, holding there were no exceptional circumstances justifying appellate intervention by the Court. The insurer’s arguments were premised on the possibility of unfairness rather than any inevitable substantive unfairness, which could justify review of the orders. The Court wrote that the hearing adjudicator’s task included ensuring fairness to both sides as the case moved forward, and that an appeal would be available to the unsuccessful party at the end of the hearing if the party was not treated fairly.

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