Category: Divisional Court

Ladouceur v. Intact Insurance Company (2022 ONSC 5206)

The claimant sought judicial review of the Tribunal’s decision that the limitation period barred the claim for NEBs, and the Tribunal’s decision not to extend the limitation period under section 7 of the LAT Act. The Court dismissed the matter, holding that judicial review was only warranted in rare circumstances. The claimant chose not to appeal the decision under the Insurance Act, which provides for a statutory appeal on points of law. In essence, the claimant was requesting that the Court reweigh the medical evidence regarding the claimant’s mental capacity to form an intention to dispute NEBs. The Court was not persuaded that the Tribunal acted in an unfair or prejudicial manner.

Aviva Insurance Company of Canada v. Spence (2022 ONSC 4988)

The insurer appealed the Tribunal’s decision that EI sickness benefits are not deductible from IRBs as “gross employment income”. The Court reversed the Tribunal’s decision, holding that there was no ambiguity in the SABS, and that EI sickness benefits were deductible as “gross employment income”. The Court wrote that the Tribunal erred in not treating EI benefits similarly under the four sections it appears. The four sections operate together to treat EI benefits as income, regardless of whether they were being received before the accident, and treats all EI benefits similarly, regardless of the reason for which the benefits are being paid. There was no conflict in between the way EI benefits are deducted as gross employment income from IRBs and the way in which they are excluded from the definition of temporary disability benefits. The framing of the provisions ensured that EI benefits are treated consistently.

Papadakis v. Wawanesa Mutual Insurance Co. (2022 ONSC 6928)

The claimant appealed the Tribunal’s decision that he did not suffer a catastrophic impairment, and that he was not entitled to IRBs or further physiotherapy. The Divisional Court dismissed the appeal. The only point of law raised in the appeal was whether the Tribunal was correct to exclude a WPI rating for a contingency of future events. The Court agreed that the Tribunal was correct in excluding future contingencies. The authorities support the conclusion that the WPI rating is based on a person’s presentation at the hearing without contingency for future changes. The Court also agreed with the Tribunal’s exclusion of WPI ratings for pre-existing conditions, as the AMA Guides require deducting from the WPI rating the estimated impairment ratings for pre-existing injuries or conditions in order to obtain the net WPI from accident-related impairments. The Court dismissed the remaining grounds of appeal as not raising points of law. The arguments regarding ignoring evidence and rulings on witnesses did not raise appropriate grounds for appeal, and the claimant was not permitted to raise additional issues not contained in the Notice of Appeal.

Morrisey v. Wawanesa Insurance Company (2022 4398)

The claimant was injured in an accident in 2000, while the 1996 SABS applied. In 2018, the claimant filed a LAT dispute for (among other things) retroactive attendant care benefits. The Tribunal found the claimant was not entitled to retroactive ACBs because he had no excuse for the late Form 1. The Tribunal also held that the incurred expense definition applied to the claimant’s ACBs going forward, and that he was entitled to interest at the rate of 1 percent per month for overdue ACBs. The claimant appealed all three findings. The Divisional Court granted the appeal with respect to interest, holding that the Divisional Court decision in Federico v. State Farm, and the Court of Appeal’s decision in Sidhu v. State Farm, governed the outcome and that two percent interest applied for all claims related to accidents prior to September 2010. The Court dismissed the appeal on the other issues. The Court agreed that the Tribunal correctly held that the claimant was required to show why there was a delay in submitting his Form 1, and that the Tribunal’s conclusions related to the claimant’s arguments were questions of fact that were not open to appeal. The Court also agreed that the Tribunal correctly held that the incurred expense definition applied to all ACBs claims after September 2010 because the definition was a procedural change rather than a substantive change to the SABS.

Grewal v. Peel Mutual Insurance Company (2022 ONSC 4082)

The claimant appealed the Tribunal’s motion decision dismissing her request to add punitive damages to the LAT application. The Court dismissed the appeal, holding that it did not have jurisdiction to hear the appeal because the motion was an interlocutory step. The Tribunal’s decision could only be appealed upon the final decision on the merits.

Vespa v. Aviva General Insurance Company (2022 ONSC 3283)

The claimant appealed the Tribunal’s denial of a chiropractic treatment plan, arguing that the adjudicator’s failure to refer to a specific medicolegal report suggested the lack of procedural fairness or denial of natural justice. The Divisional Court dismissed the appeal. The Court concluded that the Tribunal’s reasons demonstrated that the initial decision and reconsideration decision were fair. The reasons demonstrated that the Tribunal had engaged with the claimant’s argument and explained why the Tribunal disagreed with the claimant’s position. The Court explained that an adjudicator is not required to refer to every piece of evidence before him or her; procedural fairness does not require that every argument be the subject of a line of analysis or that every aspect of the evidence be commented upon.

Penney v. The Co-operators General Insurance Company (2022 ONSC 3874)

The claimant appealed the Tribunal’s decision denying her motion to remove the insurer’s counsel due to an alleged conflict of interest. The insurer’s counsel acted in the LAT dispute and in a priority dispute. The Divisional Court in The Personal v. Jia upheld a decision by the Tribunal that such representation in both matters was a conflict. In the present case, the Tribunal found that no conflict existed, and the matter was to proceed to a hearing. The Court dismissed the appeal, holding that the Tribunal’s order was interlocutory in nature, and the Court did not have jurisdiction to hear the appeal. The LAT Act restricted appeals to final decisions of the Tribunal. The Court was critical of the decision in The Personal v. Jia, stating that the panel hearing that matter erred in agreeing to hear the appeal, and the Court in the present matter declined to follow it. The Court commented+B2004 that a party could seek judicial review of an interlocutory decision, but only in exception circumstances, and the Court noted that the claimant in this matter had not sought judicial review.

Warren v. Licence Appeal Tribunal (2022 ONSC 3741)

The claimant appealed the Tribunal’s decision that he was entitled to only $2,600 in IRBs, and that he was not entitled to a special award. His grounds of appeal were based on allegations of unfairness. First, he argued that the Tribunal’s reconsideration process was procedurally unfair because it permitted the adjudicator hearing the matter at first instance to also hear and decide the reconsideration. Second, he argued that the Tribunal’s error in assigning an adjudicator to decide a motion who had not heard the oral submissions rendered the whole matter unfair, despite the Tribunal cancelling that decision and re-assigning the correct adjudicator. The Court dismissed the appeal. The Court held that the Tribunal’s rules permitting the same adjudicator that heard the matter initially to conduct the reconsideration did not violate any principles of procedural fairness. Second, the Court held that the Tribunal corrected any breach of procedural fairness in re-assigning the correct adjudicator to decide a motion and cancelling the earlier decision. The Court also rejected an argument that the Tribunal was institutionally biased, which the claimant argued based on statistics showing that the Tribunal finds in favour of insurers more often than applicants.

Singh v. Wawanesa Mutual Insurance Company (2022 ONSC 3361)

The claimant appealed the LAT’s decision that she was not entitled to IRBs. She argued that she was denied procedural fairness by the Tribunal due to late production of raw testing data from an IE psychologist. She also argued that the insurer did not make best efforts to obtain the IE assessor’s records. The Court dismissed the appeal, finding that the claimant was given a fair hearing. The claimant had the IE reports well in advance of the hearing, and knew the case she had to meet in responding to the IE reports. The claimant was not restricted in the experts she could retain to respond to the IE reports. When the raw test data was delivered during the hearing, the Tribunal granted an adjournment of five weeks to allow the claimant and her expert to process the data. Additionally, the claimant was given the opportunity to cross-examine the IE assessor and test the reliability of her conclusions. The Court also determined that the Tribunal applied the correct legal test for determining whether the insurer made best efforts to obtain the IE assessor’s records. As such, there was no error of law.

Bagherian v. Aviva Insurance Company (2022 ONSC 3103)

The claimant appealed the Tribunal’s decision dismissing his application due to repeated non-attendance at IEs. The Court dismissed the appeal, holding that the LAT had the legal authority to dismiss the application. The claimant’s failure to cooperate in obtaining IEs interfered with the insurer’s ability to participate in the process before the Tribunal, and caused delay in the timely determination of the matter before the Tribunal. The Tribunal was justified in concluding that the claimant’s behaviour amounted to abuse of process. The Court also rejected the claimant’s argument that the Tribunal did not have the power to require that he sign a consent as part of the IE process. The Court affirmed that the Tribunal does have such power as part of its power to require the claimant to cooperate in the IE process.