Category: Divisional Court

Fernandez v. Commonwell Mutual Insurance (2024 ONSC 5180)

The claimant appealed the Tribunal’s refusal to grant an adjournment of her hearing for a catastrophic impairment, and ultimately finding that she did not suffer a catastrophic impairment. The Court held that the Tribunal’s refusal to grant an adjournment breached fairness concerns, and ordered a new hearing. The Court explained that the claimant had limited proficiency in English, the issues were complex, and the claimant quickly retained new counsel after her previous counsel got off the record.

Ho v. Allstate Insurance (2014 ONSC 6317)

The claimant appealed the Tribunal’s decision that his settlement was valid. The claimant argued that the version of the Settlement Disclosure Notice he signed in 2004 was invalid. The Court upheld that Tribunal’s decision that the settlement was valid, as the discrepancy regarding the two business day cooling off period did not affect the validity of this settlement. Additionally, the claimant’s signature was on all pages of the SDN, and he was aware of all conditions of the settlement.

Landa v. The Dominion of Canada General Insurance Company (498/21; 152/22; 396/23; 397/23)

The claimant appealed and sought judicial review in relation to five LAT decisions. The accident that gave rise to the claims occurred in 2007. The issues in dispute in the LAT hearings included the limitation period and entitlement to IRBs and medical benefits. The Court examined whether the LAT decisions disclosed an error of law, were unreasonable, or were rendered in a manner that breached procedural fairness. The appeals and judicial review applications were dismissed.

Zuchelkowski v. Zenith Insurance Co. (2024 ONSC 3512)

The claimant appealed the Tribunal’s decision that her late application for benefits barred her claim. The claimant applied for accident benefits in August 2017 following her son’s May 2025 accident. The Tribunal held that the claimant did not provide a reasonable explanation for the delay of more than two years. The claimant argued on appeal that the SABS did not entitle the insurer to deny the claim, and that the only remedy under section 32(10) was to give the insurer more time to respond to the claim. The Court rejected the appeal, finding that the Tribunal’s legal conclusions were correct. While section 32(10) gives an insurer more time to respond to a late application, the insurer also has the option to apply section 55 to bar the claim if a person does not have a reasonable explanation for the delay in applying.

Hamad v. Dominion of Canada General Insurance Company (2024 ONSC 3324)

The claimant appealed the Tribunal’s decision that he did not suffer a catastrophic impairment as a result of the accident. The Court dismissed the appeal, holding that the claimant did not raise any legal errors on the part of the Tribunal. The Tribunal’s factual findings were supported by the evidence presented by the parties, and the Tribunal was entitled to make assessments of the witnesses credibility. Additionally, the Tribunal’s reliance on medical records by a doctor not present at the hearing was permitted, as hearsay evidence is permissible in hearings before the Tribunal.

Davis v. Aviva General Insurance Co. (2024 ONSC 3054)

The claimant appealed the Tribunal’s decision that she was not involved in an “accident” when she slipped on ice while in the process of getting into her vehicle. The claimant also argued that the insurer’s decision to raise that issue more than three years after the accident was procedurally unfair. The Court granted the appeal and ordered a hearing with respect to the disputed benefits. The Court found that the facts of loss supported the conclusion that the claimant was involved in an “accident”. Slipping on black ice while she had the electronic fob in her hand to open and enter her car was part of the use of a motor vehicle. The claimant was close enough to the car that her leg came to rest under the front driver’s side wheel. The Court also noted in its decision that the Tribunal has equitable powers, and can act to prevent an abuse of process. However, the Court found that the Tribunal did not err in allowing the insurer to raise the argument about whether the facts of loss constituted an “accident”.

Pope v. Pilot Insurance Company (2024 ONSC 2932)

The claimant appealed the Tribunal’s decision that her 2002 settlement in relation to a 1995 accident was valid, and that she was not entitled to rescind the settlement. The Settlement Disclosure Notice used in the settlement did not contain some information about the maximum benefits available to her (as required by the SDN at the time). The Court rejected the appeal, holding that the Tribunal’s decision was correct. The Court agreed with the claimant that the Tribunal applied the incorrect burden, and that it was the insurer’s burden to prove that its disclosure complied with its obligations, rather than an insured’s obligation to prove the reverse. That said, the burden did not change the outcome in this case. The errors in the SDN were technical, and there was some compliance with the requirements of the Settlement Regulations. The errors did not deprive the claimant of any important information to which she was entitled.

Adam v. Aviva General Insurance Company (2024 ONSC 3577)

The claimant appealed the Tribunal’s decision that he was not entitled to post-104 week IRBs. The Court rejected the appeal, holding that the Tribunal correctly concluded that the insurer complied with section 37 regarding the denial of IRBs, and the denial did not lack medical reasons or specificity for the denial. The Court also dismissed the arguments that the Tribunal did not properly weigh the evidence.

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.