Category: Divisional Court

Lefebvre v. Aviva Insurance Company of Canada (2018 ONSC 5676)

The claimant sought judicial review of the Tribunal’s decision that she could not pursue specified benefits because she had not completed and returned an election prior to applying to the LAT. The Court dismissed the review. The Court held that the claimant’s failure to submit the election, contrary to section 35 of the SABS, meant that her application was incomplete. The claimant’s submission of an election (for NEBs) after the Case Conference did not retroactively validate her claim. The Court indicated that the claimant could re-apply to the LAT once the insurer had made a decision on the claim for NEBs.

Tomec v. Economical Mutual Insurance Company (2018 ONSC 5664)

The claimant was declared catastrophically impaired seven years after the accident. The insurer had denied entitlement to further attendant care benefits and housekeeping expenses at the 104 week anniversary. The claimant sought entitlement to ACBs and HK expenses from the 104 week anniversary onwards following the catastrophic impairment designation. The insurer argued that the claims were barred by the limitation period. The Tribunal agreed with the insurer that the claims were time barred. On review, the Divisional Court upheld the Tribunal’s decision. It concluded that there was no doctrine of discoverability applicable to limitation periods, and that the time elapsed between the accident and the claimant’s deterioration did not affect the limitation analysis. The denials sent at the 104 week mark were clear and unequivocal, and effectively began the limitation clock.

Zheng v. Aviva Insurance Company of Canada (2018 ONSC 5707)

The insurer applied for judicial review of the Tribunal’s decision that a denial of medical benefits that did not comply with section 38 resulted in the treatment plan being payable and barring the insurer from relying on the MIG. The court found the Tribunal’s decision to be reasonable and concluded that the treatment plans were deemed payable until a proper denial was issued by the insurer. However, the court wrote that its decision was limited to the treatment plans at issue and that section 38(11) did not impose a permanent prohibition on the insurer with respect to whether the claimant’s impairment was covered by the MIG or subject to the $3,500 limit.

Charbonneau v. Intact Insurance Company (2018 ONSC 5660)

The insurer sought judicial review of the Tribunal’s decision that the claimant was involved in an accident. The claimant had been “car surfing,” and was injured after falling from a moving vehicle when it made a sharp turn. The insurer argued that although the causation test was met, the purpose test was not. The Court rejected the insurer’s application. It agreed that “car surfing,” while reckless and foolish, was still using a vehicle for its normal purpose of transportation. The Tribunal’s decision was reasonable and within the consumer protection purposes of the SABS.

Helmer v. Belair Direct Insurance Company (2018 ONSC 2888)

The insurer sought judicial review of the Tribunal’s decision that a PSW who was not working before the accident, met the requirements of the professional service provider branch of the “incurred expense” definition. The Court held that the Tribunal’s decision was both reasonable and correct. The Court held that the critical question was whether the PSW was legitimately in the business of rending services, rather than when the PSW first looked to provide services. The SABS prohibits the creation of a business solely for the purpose of satisfying the professional service provider definition. It is the legitimacy of the service that the SABS is concerned with, not the date on which the service provider became qualified or established a business.

Valerio v. Security National (2018 ONSC 2395)

The claimant sought judicial review of the LAT’s decision that his injuries fell within the MIG, and that two treatment plans were not payable. The Court upheld the Tribunal’s decision, concluding that it fell within the range of possible acceptable outcomes, and was therefore reasonable. The Court also held that the Tribunal’s decision regarding the sufficiency of the insurer’s denials was correct and that the denials occurred within 10 days. It does not appear that the claimant first sought reconsideration before applying for judicial review.

S.H. and H.S. v. Northbridge Personal Insurance Corporation (2018 ONSC 1801)

The insurer sought judicial review of the Tribunal’s decision in which the two claimants were permitted to opt out of WSIB and seek accident benefits. The Court upheld the Tribunal’s decision. The Court held that the standard of review is reasonableness, and that an appeal could only be made on a point of law. The Court agreed with the Tribunal’s decision that section 61 of the SABS only required that the claimant’s election to pursue an action was in good faith at the time of the accident – it did not import a retroactive impact following the dismissal of the court action. Therefore, after the claimants’ tort claim was dismissed, the insurer could not subsequently deny accident benefits. It is notable that reconsideration was not sought by the insurer prior to the judicial review.

Tsalikis v. Wawanesa Mutual Insurance Company (2018 ONSC 1581)

The claimant had been denied benefits above the MIG limits and further IRBs. The Tribunal dismissed her application based on the medical evidence and based on a two day teleconference hearing. The claimant argued that a teleconference hearing was a breach of procedural fairness; that she was not aware the MIG would be addressed in the hearing; that the Tribunal failed to evaluate the medical evidence properly; and that the Tribunal violated the rule in Browne v. Dunn regarding the credibility of one of the claimant’s assessors. The Court declined to overturn the Tribunal’s decision and dismissed all of the grounds referred to by the claimant. The Court held that the claimant failed to request an audio recording of the hearing (which is required within 14 days of the hearing), and that without such evidence, the Court could not determine what transpired at the hearing. The Court held that the claimant should have known the MIG was in dispute by reason of her arguments seeking benefits above the MIG limits. The Court held that the Tribunal was entitled to rely upon the medical evidence it had before it, and to assign weight to different opinions as it saw fit. Finally, the Court noted that the rule in Browne v. Dunn did not apply to the Tribunal, and that even if it did, the parties could have addressed the issues with one doctor’s credibility in their written submissions.

Melo v. Northbridge Personal Insurance Corporation (2017 ONSC 5885)

The claimant appealed Adjudicator Sewrattan’s denial of further IRBs to the Divisional Court. The Court upheld the decision, writing that the standard of review was reasonableness, and that Adjudicator Sewrattan had used the proper test to consider entitlement to IRBs, applied the proper standard of proof, and grounded his reasons in the evidence before him.

Aviva Canada Inc. v. Taylor (2017 ONSC 2661)

The insurer sought a stay of LAT proceedings while it sought judicial review of two LAT orders denying the insurer’s request for a hearing adjournment. Justice Kiteley denied the insurer’s motion. She ruled that the insurer’s request was premature, and that the LAT proceeding should reach its conclusion before the court system became involved. She reasoned that upon receipt of the LAT’s order following the determination of the legal issue, the insurer had a right of appeal on a question of law, which included questions of fairness and natural justice.