The claimant appealed the Tribunal’s decision dismissing her claim for IRBs. The Court dismissed the appeal holding that there was no extricable question of law. The Court also rejected the arguments that the Tribunal process lacked procedural fairness or that the Tribunal did not apply the correct test for causation.
The insurer appealed the Tribunal’s decision regarding the calculation of a self-employed person’s IRB where the person was self-employed for less than one year. The Tribunal allowed the claimant to use income earned from his previous employer, despite not being employed at the time of the accident and not being employed in the six months prior to the accident. The Court overturned the Tribunal’s decision, holding that the claimant was not permitted to use income earned through employment in calculating IRBs because he did not qualify for IRBs as an employed person. As a self-employed person at the time of the accident, the calculation of IRBs was limited to the calculation based on the last completed taxation year, as required by section 4(3). Due to the lack of evidence regarding the property calculation, the Court ordered a new hearing before the Tribunal, applying the proper section of the SABS.
The claimant appealed the Tribunal’s decision that he was not involved in an “accident” as defined in the SABS. The claimant had been inspecting and cleaning the roof of his camper trailer, which was hitched to his pickup truck. In the course of cleaning the trailer, the claimant fell to the ground, suffering serious injuries to his head. The Tribunal had found that the “causation” test was not met because there was no direct evidence that the trailer caused the claimant’s fall, and that there was an intervening act, namely the loss of footing, which was not part of the ordinary course of things. The Court reversed the Tribunal’s decision, holding that the Tribunal erred in requiring the claimant to show that the incident was caused by tripping on the trailer or that the injuries were directly caused by the trailer to establish direct causation of the injuries. The fact that the claimant was injured in the course of cleaning and inspecting the roof of the trailer was sufficient to prove that the use and operation of an automobile caused the claimant’s impairments; there was no need to prove a direct physical connection between the cause of the injury and an automobile.
Both the insurer and the claimant appealed the Tribunal’s decision that the claimant was entitled to IRBs up to the 104 week mark. The insurer appealed the finding that the limitation period did not bar the IRB claim because the denial was not clear and unequivocal. The claimant appealed the finding that she was not entitled to post-104 week IRBs. The Court dismissed both appeals. Regarding the limitation period, the Court noted that the matter was one of mixed fact and law. The Tribunal’s finding that the denial was not clear and unequivocal was not open to appeal as it was not an error of law. Regarding the post-104 week IRBs claim, the Court held that the only applicable disability test is the “complete inability” test in the SABS. The Court rejected the claimant’s argument that the standard described in Burtch v. Aviva (a test stating that suitable employment means employment in a competitive, real-world setting, considering an employer’s demands for reasonable hours and productivity and a test that the work should also be comparable in terms of status and wages), as it was not stated in the SABS. The Tribunal held that the claimant had reasonably suitable alternative employment available to her, and that she had some functional ability to work in the retail sector. As such, there were no reviewable legal errors for the Court to address.
The claimant appealed the Tribunal’s decision that he was not entitled to IRBs. The claimant argued that the Tribunal incorrectly applied the SABS, misinterpreted the IRB sections, misapprehended the evidence, and breached natural justice. The Court dismissed the appeal, holding that there were no errors of law committed by the Tribunal. The Tribunal’s decision to deny IRBs flowed from the findings of fact made by the adjudicator. The findings of fact were permissible in light of the evidence before the Tribunal, and the Court would not reweigh the evidence. The application of the SABS and the IRB test to the findings of fact was an issue of mixed fact and law, which was not appealable. The claimant failed to raise any issues of law upon which a reversible error had been made.
The claimant appealed the Tribunal’s decision regarding the quantum of ACBs awarded, and the date interest began to accrue. The claimant also sought judicial review of a FSCO decision relating to housekeeping expenses. The Court dismissed the appeal, holding that the Tribunal did not commit any legal errors in its award of ACBs. The Court agreed that basic supervisory care was generally not payable for the cost of emotional support. The Court also accepted that the Tribunal’s denial of attendant care benefits for cleaning tasks that overlapped with housekeeping chores was appropriate. The Court agreed with the Tribunal’s holding that interest on ACBs only began from the date upon with the Form 1 was submitted to the insurer, as the SABS did not require payment of ACBs prior to submission of the Form 1. The Court also dismissed the judicial review of the FSCO decision, holding that FSCO correctly found itself functus officio in relation to a claim for housekeeping expenses after a consent order was made dismissing the claim, following a settlement between the claimant and the insurer.
The claimant appealed the Tribunal’s decision that her application for accident benefits was submitted late without reasonable excuse, and that she was barred from seeking accident benefits. The Court dismissed the appeal, holding that the appeal was on a point of mixed fact and law, and as such was not subject to appeal. The Court also held that the claimant sought to raise new arguments on appeal, which was improper.
The claimant appealed the Tribunal’s decision denying an adjournment of a scheduled hearing. The Court dismissed the appeal, holding that the denial of the adjournment was an interlocutory step from which no appeal was permitted. The Court allowed the claimant to convert the appeal to a judicial review if proper submissions were made within 10 days, but noted that a judicial review may also be premature.
The insurer appealed the Tribunal’s decision that it was required to pay all amounts on a treatment plan as a result of a late section 38 denial, despite the claimant not incurring the amounts. The Court agreed with the insurer and allowed the appeal. The Court held that section 38(11)(2) operates to require payment of medical benefits following a late denial, but only if the amounts have been incurred during the period which the denial notice remains outstanding. Section 38(11)(2) does not require payment to be made in respect of non-incurred goods and services.
The claimant appealed the Tribunal’s decision that he was not employed at the time of the accident, and was therefore not entitled to IRBs. The claimant had only worked 20 weeks in the past 52 weeks, and was absent from at the time of the accident, but was not formally terminated until after the accident. The claimant argued that he should be considered employed because his termination post-dated the loss. The Court dismissed the appeal and agree with the Tribunal that the claimant was not employed at the time of the accident. The Court held that the term “employed”, while not defined in the SABS, must be read as connected to income-earning and receiving wages in exchange for services being rendered. The claimant’s position regarding the term “employed” would not accord with the purposes of the SABS, which is to link the payment of IRBs to a person’s position as an earner of wages, salary, or other remuneration.
150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP Disclaimer | Privacy Policy | Statement of Principles
Subscribe to get TGP’s case summaries straight to your inbox
Subscribe to get TGP’s case summaries straight to your inbox
150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP