Shuttleworth v. Licence Appeal Tribunal (2018 ONSC 3790)

The claimant sought judicial review of the Tribunal’s decision that she had not suffered a catastrophic impairment. She argued that the LAT’s internal peer review process, in which the Executive Chair reviewed the adjudicator’s decision before it was issued, created the appearance of lack of adjudicative independence. The Divisional Court accepted the claimant’s position, and concluded that a mandatory internal review of an adjudicator’s decision by the Executive Chair created a reasonable apprehension of lack of independence. The Court remitted the matter to the LAT for a new hearing.

Oliver v. Brant Mutual Insurance Company (2018 ONSC 3716)

The claimant sought judicial review of the Tribunal’s decision that a 2005 denial of attendant care benefits was clear and unequivocal and started the limitation clock. The claimant argued that because the insurer had not requested a Form 1, nor had a Form 1 been submitted, the denial was premature. The Court dismissed the appeal and held that the SABS in force at the time of the claimant’s application did not require a request for a Form 1; the insurer could either allow the benefits claimed or send the insured for a Form 1 assessment. The Tribunal’s factual findings that the forms that were filed by the claimant were a sufficient application for the insurer to deny attendant care benefits was reasonable, and the limitation period therefore barred the application.

Security National Insurance Company v. Kumar (2018 ONSC 3556)

The insurer sought judicial review of the LAT’s decision that the claimant was a resident of Ontario at the time of the accident. The claimant had been involved in an accident in Alberta, and only applied for Ontario accident benefits after exhausting Alberta benefits. The Court dismissed the appeal. The Court held that the LAT’s interpretation of the “insured person” definition was reasonable, and that residency should not be given the narrow and strict interpretation advanced by the insurer. It was appropriate for the LAT to consider a number of factual factors in making its conclusion, and that the SABS did not state that a person was no longer a resident after 60 days outside of Ontario. Finally, the Court concluded that the LAT’s weighing of the evidence was appropriate and would not be reconsidered by the Court.

D.O. v. TD Insurance Meloche Monnex (2018 ONSC 3269)

The claimant sought ACBs based on the allegation that she suffered GERD (acid reflux) due to her pre-mature birth (two months before her birth, her mother was involved in a minor accident). The LAT held that the claimant had not proven that the accident had caused her pre-mature birth, or that the pre-mature birth caused GERD. The LAT also held that the Form 1 activities were not tasks a child would normally perform independently regardless of the accident. The claimant argued that the LAT failed to apply the correct standard of causation. The Divisional Court dismissed the judicial review, and held that the nature of the test applied by the LAT was irrelevant to the outcome. The LAT adjudicator had concluded that the ACBs sought were unexceptional parental care duties for babies, and such findings of fact were not reviewable by the Court.

Helmer v. Belair Direct Insurance Company (2018 ONSC 2888)

The insurer sought judicial review of the Tribunal’s decision that a PSW who was not working before the accident, met the requirements of the professional service provider branch of the “incurred expense” definition. The Court held that the Tribunal’s decision was both reasonable and correct. The Court held that the critical question was whether the PSW was legitimately in the business of rending services, rather than when the PSW first looked to provide services. The SABS prohibits the creation of a business solely for the purpose of satisfying the professional service provider definition. It is the legitimacy of the service that the SABS is concerned with, not the date on which the service provider became qualified or established a business.

Valerio v. Security National (2018 ONSC 2395)

The claimant sought judicial review of the LAT’s decision that his injuries fell within the MIG, and that two treatment plans were not payable. The Court upheld the Tribunal’s decision, concluding that it fell within the range of possible acceptable outcomes, and was therefore reasonable. The Court also held that the Tribunal’s decision regarding the sufficiency of the insurer’s denials was correct and that the denials occurred within 10 days. It does not appear that the claimant first sought reconsideration before applying for judicial review.

S.H. and H.S. v. Northbridge Personal Insurance Corporation (2018 ONSC 1801)

The insurer sought judicial review of the Tribunal’s decision in which the two claimants were permitted to opt out of WSIB and seek accident benefits. The Court upheld the Tribunal’s decision. The Court held that the standard of review is reasonableness, and that an appeal could only be made on a point of law. The Court agreed with the Tribunal’s decision that section 61 of the SABS only required that the claimant’s election to pursue an action was in good faith at the time of the accident – it did not import a retroactive impact following the dismissal of the court action. Therefore, after the claimants’ tort claim was dismissed, the insurer could not subsequently deny accident benefits. It is notable that reconsideration was not sought by the insurer prior to the judicial review.

Tsalikis v. Wawanesa Mutual Insurance Company (2018 ONSC 1581)

The claimant had been denied benefits above the MIG limits and further IRBs. The Tribunal dismissed her application based on the medical evidence and based on a two day teleconference hearing. The claimant argued that a teleconference hearing was a breach of procedural fairness; that she was not aware the MIG would be addressed in the hearing; that the Tribunal failed to evaluate the medical evidence properly; and that the Tribunal violated the rule in Browne v. Dunn regarding the credibility of one of the claimant’s assessors. The Court declined to overturn the Tribunal’s decision and dismissed all of the grounds referred to by the claimant. The Court held that the claimant failed to request an audio recording of the hearing (which is required within 14 days of the hearing), and that without such evidence, the Court could not determine what transpired at the hearing. The Court held that the claimant should have known the MIG was in dispute by reason of her arguments seeking benefits above the MIG limits. The Court held that the Tribunal was entitled to rely upon the medical evidence it had before it, and to assign weight to different opinions as it saw fit. Finally, the Court noted that the rule in Browne v. Dunn did not apply to the Tribunal, and that even if it did, the parties could have addressed the issues with one doctor’s credibility in their written submissions.

Melo v. Northbridge Personal Insurance Corporation (2017 ONSC 5885)

The claimant appealed Adjudicator Sewrattan’s denial of further IRBs to the Divisional Court. The Court upheld the decision, writing that the standard of review was reasonableness, and that Adjudicator Sewrattan had used the proper test to consider entitlement to IRBs, applied the proper standard of proof, and grounded his reasons in the evidence before him.

Liu v. The Co-operators General Insurance Company (2017 ONSC 3599)

The claimant sought judicial review of Adjudicator Sewrattan’s decision that his injuries were “minor injuries.” The Divisional Court held that the standard of review was reasonableness, and concluded that the adjudicator’s decision fell within the range of reasonableness. The appeal was dismissed.