Category: Divisional Court

Fratarcangeli v. North Blenheim Mutual Insurance Company (2021 ONSC 3997)

The Divisional Court considered three LAT decisions addressing section 7 of the LAT Act, to determine whether the Tribunal had the power to extend the two-year limitation period. The Court held that the LAT Act did grant the Tribunal the power to extend the limitation period and upheld two of the decisions in which the adjudicators had granted the extensions. The Court held that the third matter, in which the adjudicator had held that the LAT did not have the power to extend the limitation period, had to be returned to the adjudicator for a determination on whether the extension should be granted.

Dominion of Canada General Insurance Company v. Ridi (2021 ONSC 3707)

The insurer appealed the Tribunal’s decision that HST on attendant care benefits is payable above the $6,000 monthly maximum and that HST payments do not come out of the attendant care benefit limits. The Divisional Court allowed the appeal and reversed the Tribunal’s decision. The Court held that prior to the June 3, 2019 amendments, HST charged on attendant care benefits is paid out of the overall limits, and does not create entitlement to payments in excess of $6,000 per month. The Court held that the Tribunal erred in interpreting a Guideline as authorizing payment in excess of the statutory limits.

Porter v. Aviva Insurance Company of Canada (2021 ONSC 3107)

The insurer appealed the Tribunal’s decision that the claimant was involved in an accident. The claimant slipped and fell on ice while making her way to a Lyft vehicle in her driveway. The Court granted the appeal and concluded that the facts of loss did not qualify as an accident. The Tribunal erred by conflating the “but for” test with the direct causation test. Entitlement to accident benefits required that the use or operation of the vehicle be a direct cause of the injuries. In this case, the car was at best ancillary to the incident. More was required than establishing that the location of the vehicle led to the incident occurring. Ice and snow was the direct cause of the injuries, which was insufficient to establish direct causation for accident benefits entitlement.

Yatar v. TD Insurance Meloche Monnex (2021 ONSC 2507)

The claimant appealed and sought judicial review of the Tribunal’s decision that her claims were barred by the limitation period. The Court dismissed both the appeal and the judicial review. The Court explained that statutory appeals are limited to strict questions of law, and the claimant had failed to identify an error of law on which to appeal; rather, she was appealing on a question of mixed fact and law, which were not subject to the statutory appeal. Judicial review, on the other hand, was a discretionary remedy that was only to be granted in exceptional circumstances. The Court noted that the Legislature had intended to restrict matters on which the Tribunal could be reviewed, and acknowledged that the Tribunal’s reconsideration process weighed in favour of a more limited right to judicial review. Again, the nature of the alleged error – being one of mixed fact and law – meant that the Court was to be highly deferential, and only intervene if the error is so serious as to constitute an error of law.

Cura v. Aviva Insurance Canada (2021 ONSC 2290)

The claimant sought judicial review of the Tribunal’s decision that her withdrawal of consent for the IE facility to possess her personal information amounted to IE non-attendance. The claimant’s reconsideration request had been dismissed as pre-mature. The Divisional Court dismissed the review, holding that it was premature. Parties are not to appeal or seek judicial review of a Tribunal decision until the matter has been finally decided by the Tribunal. The Court was critical of the claimant’s representatives, who had brought similar proceedings and putting up roadblocks to prevent IEs from taking place.

Beaudin v. Travelers Insurance Company of Canada (2021 ONSC 1389)

The insurer appealed the Tribunal’s decision that the dirt bike involved in the accident was an automobile for the purposes of the SABS. The Tribunal had concluded that the dirt bike was required to be insured under the Off-Road Vehicles Act and was not exempt from insurance through the regulation that allowed off-road vehicles to be uninsured when “driven or exhibited at a closed course competition or rally sponsored by a motorcycle association.” The Court dismissed the appeal and confirmed that the dirt bike was considered an automobile. The Court agreed with the Tribunal’s approach to interpreting the ORVA as being for the protection of innocent victims of automobile accidents, and the narrow reading of the exemption to the ORVA.

Higashi v. Western Assurance Company (2020 ONSC 7616)

The claimant appealed the Tribunal’s decision that her claim for IRBs was barred by the limitation period. She argued that the insurer’s denials were invalid because the insurer did not provide copies of the IE reports to the practitioners who completed the Disability Certificates. The Court agreed with the Tribunal that the insurer’s failure to provide the IEs was not fatal to the limitation period. The insurer communicated all of the information required to the claimant to enable her to decide whether to dispute her entitlement.

The Personal Insurance Co. v. Jia (2020 ONSC 6361)

The insurer appealed the LAT’s decision that counsel acting in a priority matter could not also act in the LAT dispute, and the decision excluding the transcript from the priority EUO from the LAT hearing. The Court dismissed the appeal and concluded that the LAT’s decision was reasonable. It held that a conflict could arise if the same counsel acted in the priority dispute and at the LAT. It also reasoned that the protections of section 33 would not be followed if the priority EUO transcript was admitted without leave of the Tribunal.

Aviva Insurance Company of Canada v. J.A. (2021 ONSC 3185)

The insurer appealed the Tribunal’s decision that it was required to pay for the claimant’s catastrophic impairment assessments even though the assessments were not requested or completed until after submission of the OCF-19 and the catastrophic impairment IEs. The insurer characterized the requested assessments as rebuttal reports, which were not payable under the current version of the SABS. The Court dismissed the appeal, holding that the Tribunal did not make an error of law. The Tribunal made a finding of fact that the claimant had not obtained any earlier assessments, so the requested assessments were not rebuttal assessments. As a matter of law, section 25 was to be interpreted broadly, and the term “preparation” of a catastrophic impairment application did not end when the OCF-19 was submitted. Therefore, section 25 applied and required the insurer to pay for the claimant’s catastrophic impairment assessments.

Aviva General Insurance v. Khan (2020 ONSC 1290)

The insurer sought judicial review of the Tribunal’s decision to award various medical benefits. The Court reviewed the Tribunal’s decision on a correctness standard and dismissed the appeal. It agreed with the insurer that a benefit could not be deemed incurred without a specific finding that the insurer unreasonably withheld or delayed payment of a benefit. However, the Court also wrote that the Tribunal’s decision made it clear that the benefit had been incurred because the services were provided and the claimant owed money to the treatment provider.

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