Category: Divisional Court

Biniaz-Sarabi v. Gore Mutual Insurance Company (2023 ONSC 5379)

The claimant appealed the Tribunal’s decision dismissing her claims for IRBs, ACBs, and various medical benefits. Her submissions focused on the dissatisfaction with the manner the insurer managed the claim. The claimant failed to point to any error of law on the part of the Tribunal. The adjudicator made every reasonable effort to ensure the claimant understood the dispute process and the burden she had to meet in proving her case. The adjudicator correctly identified and interpreted the pertinent sections of the SABS, fairly considered all evidence that addressed the issues properly before him, and appropriately applied the legal burdens and tests.

Akinyimide v. Economical Mutual Insurance Company (2023 ONSC 5272)

The claimant appealed the Tribunal’s decision that section 31 barred her claim for IRBs. The claimant reported to her insurer that she lived in Windsor, rather than Toronto, when obtaining her auto insurance policy. The misrepresentation resulted in lower premiums. She was involved in an accident in October 2017. The insurer learned of the misrepresentation in December 2017, and charged the claimant back-premiums from the date she moved to Toronto, which the claimant paid. The claimant argued that the insurer waived its right to rely on section 31 exclusions once she paid the premiums. The Tribunal held that section 31 barred the claim, and held that it had no jurisdiction to apply equitable remedies. On appeal, the Court accepted that the Tribunal correctly applied section 31 of the SABS, but erred in failing to consider section 131 of the Insurance Act, which can excuse an insured from failing to comply with proper reporting in certain circumstances. The Court held that consideration of section 131 of the Insurance Act was not an equitable remedy, and that the Tribunal has jurisdiction to consider the Insurance Act as a whole, so long as its decisions are “in accordance with the SABS.” The matter was returned to the Tribunal to consider whether section 131 allows the claimant to receive IRBs despite the material misrepresentation.

Tyner v. Certas Home and Auto Insurance Company (2023 ONSC 5179)

The claimant appealed the Tribunal’s decision regarding a catastrophic impairment, and various medical benefits claims. The claimant sought reconsideration of the decision, which was outstanding at the time of this appeal. The Court dismissed the appeal, holding that the reconsideration decision would be the final order, and that prior to the reconsideration decision, the appeal was premature.

Joaquim v. Intact Insurance Company (2023 ONSC 5120)

The claimant appealed the Tribunal’s decision that she was failed to attend an IE in relation to a claimed prescription expense. The claimant argued that the SABS does not permit an IE in relation to prescriptions. The Divisional Court granted the appeal, holding that only items required to be submitted on a treatment plan could be referred to IE. Items permitted to be submitted by way of OCF-6 could not be assessed at an IE. The Court also held that the $250 threshold referred to in section 38(2) did not apply to prescription. Rather, it only applied to “goods with a cost of $250 or less per item.” The Court wrote that the adjudicator ought to have followed the FSCO decision in Ward v. State Farm, which was persuasive authority for the claimant’s position.

Kellerman-Bernard v. Unica Insurance Company (2023 ONSC 4423)

The claimant appealed the Tribunal’s decision that she could not receive a catastrophic impairment designation because she was not involved in the subject accident. The claimant’s son was significantly injured in an accident, and the claimant suffered psychological injuries. The Tribunal held that only persons involved in an accident could apply for a catastrophic impairment designation. The Divisional Court reversed the Tribunal’s decision, holding that the adjudicator erred in restricting catastrophic impairment designations to persons involved in an accident. The SABS allows the designation for an “insured person” which includes certain family members of accident victims who were not themselves in the accident.

Abdi v. TD General Insurance Company (2023 ONSC 3536)

The claimant appealed the Tribunal’s decision that he did not suffer a catastrophic impairment, as he did not meet the Extended Glasgow Outcome Scale (“GOS-E”). In particular, the adjudicator preferred the assessments of the insurer which took place almost 24 months after the accident, rather than the assessments of the claimant which took place around 16 months after the accident. The GOS-E test refers to level of functioning “6 months or more”. However, the adjudicator was not required to accept the assessment that was completed earliest in time. The adjudicator’s decision to prefer the insurer’s assessments was open to her on the evidence, and she explained why she did not accept the claimant’s assessments. The Tribunal therefore made no error with regard to the temporal aspect of the assessments. Second, the adjudicator did not restrict her consideration to impairments exclusively or solely attributable to traumatic brain injury, and she did contemplate that physical and psychological impairments caused by or related to the traumatic brain injury were to be considered in the GOS-E. In applying the test, the adjudicator found that many of the impairments relied upon by the claimant reflected an unwillingness to perform acts, rather than an inability to perform them. Those were properly excluded from consideration. Finding no legal error, the Court dismissed the appeal.

Luluquisin v. Aviva Insurance Company of Canada (2023 ONSC 3912)

The claimant sought judicial review of the Tribunal’s decision regarding the quantum of ACBs awarded, and entitlement to various medical benefits. The insurer argued that the decision should have been appealed, rather than the subject of judicial review. The Court agreed with the insurer, holding that judicial review was not warranted and that the Court should not convert the matter into an appeal given that the proposal had not been raised by counsel at any time prior to the hearing. The Court dismissed the judicial review, without prejudice to the claimant’s ability to appeal the Tribunal’s decision.

Khan v. Allstate Insurance Company (2023 ONSC 3652)

The claimant appealed the LAT’s decision that he did not suffer a catastrophic impairment. The claimant argued that procedural fairness was denied because he did not know the insurer would argue that an intervening event was the cause of his impairments, and argued that the LAT applied the wrong causation test. The LAT dismissed the appeal. Regarding procedural fairness, the Court held that the claimant’s failure to object to the insurer’s arguments at any point during the original hearing prevented him from advancing this argument on appeal. Failure to object deprived the Court of the evidence necessary to establish how the LAT would have dealt with the concern. Regarding causation, the Court held the LAT applied the proper “but for” test. The material contribution test is only applicable where there are multiple tortfeasors and there is risk of tortfeasors escaping liability by pointing the finger at one another. That was not the case in this dispute where the claimant suffered a medical event weeks after the accident.

Kahissay v. Intact Insurance (2023 ONSC 3650)

Two claimants sought judicial review of the Tribunal Orders staying their applications while ordering the claimants to attend IEs prior to hearings on catastrophic impairment disputes. The Court held that the judicial review was premature and should not be heard. The cases did not raise exceptional circumstances, absent which the Court would not consider review or appeal of interlocutory matters.

Soldatovas v. Wawanesa Mutual Insurance Company (2023 ONSC 3440)

The claimant appealed the Tribunal’s denial of IRBs and a special award, arguing that the decision lacked procedural fairness, reasonableness, and did not consider key evidence. The Court dismissed the appeal, holding that the Tribunal provided the claimant with an opportunity to present his case, and holding that the Tribunal was not required to cite every document submitted by the claimant in its reasons.