Category: Divisional Court

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.

Co-operators Insurance Company v. Bennett (2024 ONSC 467)

The insurer appealed the Tribunal’s decision that the claimant was entitled to an attendant care assessment due to having pre-existing conditions, despite suffering only minor injuries. The insurer argued that the minor injury bar still applied to attendant care benefits and assessments for persons with pre-existing conditions who were not subject to the $3,500 MIG limit. The Court dismissed the appeal, holding that the Tribunal correctly determined that a person with pre-existing conditions could receive attendant care benefits and an assessment. The insurer’s argument was held to be too focused on single words and phrases in the SABS, rather than focusing on the entire structure of the SABS.

Rao v. Wawanesa Mutual Insurance Company (2024 ONSC 39)

The claimant appealed the Tribunal’s decision that she did not suffer a catastrophic impairment. The claimant had sought an extension of time for reconsideration, which was denied by the Tribunal. The denial of the reconsideration extension lead to the claimant appealing to the Divisional Court more than four months after the original decision of the Tribunal. The insurer argued that the appeal ought to be dismissed for delay. The Court granted the claimant an extension of time to file the Notice of Appeal and ordered the appeal hearing to be expedited. The Court noted that the insurer did not demonstrate any prejudice arising from the late Notice of Appeal, and the claimant had demonstrated an intention to appeal and had provided explanation for the delay.

Mansuri v. Dominion of Canada General Insurance Company (2023 ONSC 5764)

The claimants appealed the Tribunal’s decision permitting the insurer to use the same counsel and same adjuster on three claims made by three relatives of the same household. The claimants argued that there was a conflict because the insurer and its counsel could intermingle the claims materials. The Court dismissed the appeal, finding that it was premature. The Tribunal’s decision was not a final order, and the hearing on the merits of the claims had not yet taken place. There were no exceptional circumstances justifying early judicial review, nor would the claimant suffer irreparable prejudice that could not be cured on ultimate appeal.

Tagoe v. The Personal Insurance Company (2023 ONSC 5715)

The claimant appealed the Tribunal’s decision that the limitation period barred his IRB claim. He returned to work one day after the accident. The insurer denied the claim for IRBs at that point in May 2016. The claimant then went off work 16 months later and required hip surgery. He applied for IRBs in January 2019. The insurer argued that the May 2016 constituted a valid denial triggering the limitation period. The claimant argued that his IRB claim was not discoverable until he stopped working. The Court granted the appeal, agreeing with the claimant. The Court held that the Tribunal failed to take into account the discoverability principles set out in Tomec v. Economical, and that the denial of IRBs in May 2016 prior to the claimant’s stoppage of work was contrary to the consumer protection goals of the SABS.