Category: Divisional Court

Miceli v. TD General Insurance Co. (2025 ONSC 496)

The claimant appealed the Tribunal’s decision that she was not involved in an “accident”. The claimant was injured in the back seat of her car when coffee was spilled on her due to the lid of a coffee cup coming off. The Court allowed the appeal, holding that the incident was an “accident” under the SABS definition. The Court held that the Tribunal erred in failing to follow the Court of Appeal’s decision in Dittman v. Aviva, which was a case involving similar facts. As in Dittman, the purpose test and the causation test were both met. The inadvertent spill of hot coffee purchased from a drive-through was part of the ordinary use and operation of a vehicle.

Dooman v. TD Insurance Co. (2025 ONSC 184)

The claimant appealed the Tribunal’s decision that his injuries fell within the MIG and that he was not entitled to disputed medical benefits. The Court dismissed the appeal. The Court held that the Tribunal properly approached the competing medical and expert evidence. The Tribunal was entitled to reject the opinion of the claimant’s expert notwithstanding the insurer not having a responding expert report. The claimant’s arguments regarding the weight of medical evidence and opinion was not reviewable on appeal. The Tribunal’s findings regarding pre-existing conditions considered the medical evidence submitted, and the conclusions were reasonable. Finally, the Tribunal was under no obligation to request the parties submit more evidence or better evidence when confronted with illegible doctor’s notes. A written hearing format was agreed upon by the parties, and the claimant had the obligation to put forward evidence in support of his position.

Plante v. Economical Insurance Company (2024 ONSC 7171)

The claimant appealed the Tribunal’s decision that she was not entitled to ACBs, home modifications, and other various medical benefits. The claimant’s appeal was based on the procedures used by the LAT in this case. At the Case Conference, the adjudicator ordered that a joint 20 day hearing would take place, and that both the claimant and her mother’s claim would be decided based on the same evidence and witnesses, which largely overlapped. At the beginning of the hearing, the Vice Chair altered the schedule, separating the two claims and only allowing five to six days of hearing for the claimant. The Vice Chair also did not allow the claimant to enforce a subpoena to cross-examine the insurer’s OT, despite draft reports suggesting that earlier versions of the report had been changed to better support the insurer’s position. The Court held that the Tribunal had breached the claimant’s right to a procedurally fair hearing, and ordered the matter be re-heard by a new adjudicator. The Court emphasized that any hearing scheduled set in a Case Conference ought to be followed unless prior sufficient notice is given to the parties regarding a change, and that the right to cross-examine an opposing party’s expert was fundamental to the procedural fairness of the hearing.

Noble v. Economical Insurance Company (2024 ONSC 6985)

The claimant appealed the Tribunal’s decision that she was not entitled to dispute benefits because she did not attend a psychiatric IE. Prior to this appeal, the claimant attended the IE and commenced a new LAT application. Nevertheless, the claimant continued with the appeal arguing that the LAT erred in barring the dispute, and in failing to provide procedural fairness. The Court dismissed the appeal. The Court held that the LAT did not make any legal error in barring the dispute, and that any arguments relating to factual errors were not proper for the Court to consider on appeal. The Court also found there was no lack of procedural fairness. The claimant’s arguments that limitations defence might now apply to the treatment plans in dispute was an indirect challenge to the claims being made rather than the Tribunal hearing.

Hall v. Unifund Assurance Company (2024 ONSC 6677)

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’s appeal was essentially a re-argument of the evidence. The Tribunal was entitled to weigh the evidence as it saw fit, and the adjudicator provided full and cogent reasons for the decision. There was no error of law or denial of procedural fairness to the claimant.

McDonald v. Aviva Insurance Company (2024 ONSC 6030)

The claimant appealed the Tribunal’s decision that he was not entitled to a special award in relation to housing benefits following the insurer’s concession just prior to the hearing. The claimant had sustained a catastrophic impairment and required 24-hour care. He sought accessible housing, which was denied by the insurer. He then sought a rental, which was also denied by the insurer. The insurer reconsidered its position and approved the benefits shortly prior to the hearing. The matter proceeded solely on the issue of a special award. The Tribunal decided that an award was appropriate for some of the other disputed benefits, but not the housing benefits. The reason for not granting a special award on the housing benefits because there was no evidence before the Tribunal regarding the value of the renovations that would be required to accommodate the claimant’s needs. The Court held that the Tribunal erred in its application of s.10 by assuming that evidence was needed to adjudicate the housing benefits before a special award could be granted. Where an amount has been agreed upon, as it was in this case when the insurer agreed to pay the benefit, the claimant was not required to prove the amount of his entitlement for the Tribunal to make a special award.

Vivekanantham v. Certas Direct Insurance Company (2024 ONSC 6198)

The claimant appealed and sought judicial review of the Tribunal’s decision that she did not sustain a catastrophic impairment and that she was not entitled to a special award. At the Tribunal hearing, the insurer’s psychiatric assessor refused to attend to give evidence despite a summons, but the adjudicator still allowed the IE report to be considered. Also during the hearing, the insurer conceded the claimant’s entitlement to IRBs, removal from the MIG, and entitlement to medical benefits, and paid amounts owing plus interest. However, the adjudicator concluded that she did not have jurisdiction to grant a special award once the benefits were approved. The Court granted the appeal, holding that the Tribunal erred when it failed to consider whether to make a special award on IRBs and the approved medical benefits, and in breaching procedural fairness when it admitted the psychiatry IE despite the refusal of the assessor to attend the hearing. The Court wrote that the Tribunal should have excluded the IE report once it was clear the assessor would not attend the hearing. The Court remitted the matter to the Tribunal for a new hearing.

Cabral v. Northbridge General Insurance (2024 ONSC 6057)

The claimant appealed and sought judicial review of the Tribunal’s decision that he did not suffer a catastrophic impairment as a result of a 2002 accident. The Tribunal concluded that the claimant’s impairments did not meet the necessary psychological injuries, and that a subsequent 2006 accident was a primary factor for the reported impairments. The Court dismissed the appeal and the judicial review, holding that there were no legal errors made by the Tribunal. The adjudicator applied the correct tests, and did not improperly weigh any evidence or improperly admit hearsay evidence.

Pourkhodaya v. The Personal Insurance Company (2024 ONSC 6019)

The claimant appealed and sought judicial review of the Tribunal’s decision that she was not involved in an “accident” as defined in the SABS. The claimant suffered an aneurysm in 2020 incident in which she was in a vehicle that was being pursued and harassed by a group of motorcyclists. There was no collision or contact between any of the vehicles. The aneurysm was caused by intense stress caused by the incident. The aneurysm resulted in a spinal cord hemorrhage, leaving the claimant paraplegic. The Tribunal found that the incident did not qualify as an accident because the causation test was not met. The Court granted the appeal and remitted the matter to the Tribunal for a new hearing. The Court found that the Tribunal’s decision was based on an unreasonable and unfair review of the expert evidence as to the cause of the aneurysm, and the Tribunal improperly relied upon the insurer’s expert. The Tribunal also erred in its analysis of the intervening cause question and dominant feature question.

Kumar v. Aviva General Insurance Company (2024 ONSC 5882)

The claimant appealed the Tribunal’s decision that he was not entitled to post-104 week IRBs, and the Tribunal’s decision refusing to extend the time for reconsideration. The Court dismissed the appeal and the judicial review, holding that the Tribunal did not make any reviewable errors. The adjudicator was entitled to control the process with respect to the examinations and cross-examinations of witnesses, and the adjudicator applied the property “complete inability” test in the context of the evidence presented at the hearing.

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