Allstate Insurance Company v. Billard (2019 ONSC 6256)

The insurer sought judicial review of the Tribunal’s decision that the limitation period should be extended based on section 7 of the LAT Act. The Divisional Court dismissed the review on the basis that the LAT proceeding needed to first be completed in its entirety before seeking judicial review.

Fordjour v. Royal and Sun Alliance Insurance Company of Canada (2019 ONSC 6268)

The claimant judicial review of the dismissal of her claim on two grounds: that she her family physician should be entitled to give opinion evidence, and that the adjudicator did not properly address causation. The Divisional Court agreed with the claimant and remitted the matter for a new hearing. It held that the Tribunal erred in not permitting the family physician to give opinion evidence at the hearing. The Divisional Court also wrote that the Tribunal had not set out the causation test it had applied, and that it was no appropriate for the test to be “implied.”

Hedley v. Aviva Insurance Company of Canada (2019 ONSC 5318)

Aviva sought reconsideration of the Tribunal’s reconsideration that its section 38 denial did not provide sufficient “medical and any other reasons for the examination,” and that the claimant was not required to attend the IE. The Court upheld the reconsideration decision as falling within the range of reasonableness. The Court wrote: “where reasons are required, they must be meaningful in order to permit the insured to decide whether or not to challenge the insurerÂ’s determination. Mere ‘boilerplate’ statements do not provide a principled rationale to which an insured can respond. In essence, such statements constitute no reasons at all.”

Traders General Insurance Company v. Rumball (2019 ONSC 1412)

The insurer appealed the Tribunal’s decision that the claimant was not barred by the limitation period from seeking IRBs. The Court held that the appeal to Divisional Court was premature, and that the matter should proceed at the Tribunal regarding the claimant’s entitlement to IRBs. If IRBs were awarded, the insurer could then appeal the final decision of the Tribunal. The case was not a rare or exceptional case where the Court should consider an interim or interlocutory decision.

Intact Insurance Company v. Lanziner-Brackett (2018 ONSC 6546)

The insurer sought judicial review of the Tribunal’s decision that the claimant was involved in an accident, and also sought judicial review of the Case Conference adjudicator’s framing of the dispute. The claimant had been struck by the door of a vehicle twice, and then physically assaulted by the driver of the vehicle. The insurer had accepted that the door-related injuries qualified as an “accident,” but that the punches to the face did not. The adjudicator concluded that the whole incident was an “accident.” The Court concluded that the Tribunal’s decision was unreasonable and sent the matter back to the Tribunal for a new hearing. The Court explained that the Case Conference adjudicator’s reframing of the issue in dispute denied the insurer procedural fairness. The Court did not address whether the facts of loss qualified as an “accident.”

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.

Taylor v. Aviva Canada Inc. (2018 ONSC 4472)

The claimant had a serious accident while on an ATV. The Tribunal initially found that the ATV was not an automobile at the time of the accident. On reconsideration, the Executive Chair remitted the matter to a new adjudicator for a new hearing. The claimant sought judicial review of the Executive Chair’s order, arguing that she should have made a determination on whether the ATV was an automobile. The insurer sought judicial review of the Executive Chair’s order, arguing that the Court should reinstate the Tribunal’s original order. The Court dismissed both appeals. First, the court held that the decision to remit the matter for a new hearing rather than making a determination of the issue on reconsideration was reasonable. The Executive Chair explained that an in-person hearing might be necessary to make the essential findings of fact. It was reasonable for the Executive Chair to decline to decide the matter on the written record. The Court also noted that whether the ATV was an “automobile” was not a question of law. It was an issue of mixed fact and law, for which the Court did not have jurisdiction to make a decision. In terms of the insurer’s appeal, the Court held that the LAT Rules suggest that reconsideration by the Executive Chair is made on a correctness standard, and that the Executive Chair does not have to show deference to the hearing adjudicator where one of the conditions in Rule 18 applies. The Executive Chair identified significant errors on the part of the adjudicator, and she complied with Rule 18. There was no basis for the Court to intervene.