Category: Divisional Court

Gore v. Rusk (2022 ONSC 2893)

The insurer appealed the Tribunal’s decision that the claimant suffered a catastrophic impairment, and that he was entitled to NEBs. The Court dismissed the appeal, holding that both appeals were on matters of mixed fact and law and that there were no extricable legal error that had been demonstrated. The findings regarding each WPI allocation were findings of fact, as was the issue of whether combining certain ratings would entail double-counting or overlap. The Court also dismissed the argument that the reconsideration process was unfair because only one of the two adjudicators that heard the original matter conducted the reconsideration. The Court held that the Tribunal had broad authority to conduct reconsiderations, and that any adjudicator could hear the reconsideration, including the adjudicator or adjudicators hearing the original matter, or an entirely new adjudicator.

Co-Operators General Insurance Company v. Branden (2022 ONSC 2473)

The insurer appealed the LAT’s decision which found that it was not permitted to deduct an LTD litigation settlement from the claimant’s ongoing IRBs. The Divisional Court rejected the appeal. The Court noted that the Tribunal made a finding of fact that the LTD settlement did not provide appropriate details to allow the insurer to deduct it from IRBs, because the settlement was not confined to payment for the LTD claim alone; it also included claims for punitive damages, costs, and interest. The release did not specify how much of the settlement was attributed to each head of damages in the LTD litigation. The Court rejected the analogy between IRB deductions and section 267.8 of the Insurance Act, which provided a separate basis for deduction of collateral benefits in the tort context.

Micanovic v. Intact Insurance (2022 ONSC 1566)

The claimant appealed a production order made by the Tribunal for him to produce personal and corporate income tax records from his housekeeping provider. The Divisional Court granted the appeal and set aside the order. The Court explained that even though the production order was interlocutory, the order was “fatally flawed” and had to be set aside. First, the Tribunal erred in its understanding of the housekeeping claim. The productions were ordered produced on the belief that an economic loss was being advanced by the claimant and service provider. To the contrary, the housekeeper stated that she was acting in the course of employment though a company that existed prior to the claimant’s accident. Second, the Tribunal believed that the housekeeping provider was the spouse of the claimant. That finding was an error and not supported by any evidence, nor argued by either party. Finally, the claimant had no control or power to produce the records of the housekeeper, and could therefore not be ordered to produce the records.

Aviva Canada Inc. v. McNamara (2022 ONSC 1462)

The insurer appealed the Tribunal’s decision that the claimant was entitled to IRBs during a period of section 33 non-compliance. The Tribunal found that the claimant’s explanation for the delay in providing records was reasonable because she thought the insurer had access to her medical records by way of signed authorization, and that she was suffering from post-traumatic stress. The insurer argued that the Tribunal erred by applying subjective factors to the reasonable explanation. The Court dismissed the appeal, holding that the reasonable explanation under section 33 was not a strictly objective test, and that the reasonableness of the explanation had to be considered in the context of the particular claimant and take into account the remedial nature of the SABS.

DeGroot v. Licence Appeal Tribunal (2022 ONSC 6160)

The claimant appealed the Tribunal’s decision awarding IRBs of $161.11 per week up to October 6, 2020, and declining to award any IRBs thereafter. The claimant also appealed the dismissal of the special award claim. The Court dismissed the appeal, holding that the Tribunal’s weekly IRB award was accurate in light of the claimant’s accounting report, and that the $185 minimum for IRBs after the 104 week mark could be reduced by post-accident income. Regarding IRBs beyond October 6, 2020, the Court held that the Tribunal did not err in dismissing the issue, as the claimant had not put evidence of an IRB calculation beyond that date before the Tribunal, and the issue appeared to be moot as the insurer had conceded payment of $400 per week for that time period after the Tribunal’s decision was released. The Tribunal’s decision that the issue was moot was entitled to discretion. Finally, the Court held that the Tribunal’s decision to not grant a special award properly considered relevant factors in coming to the decision to dismiss the claim.

Sharma v. Allstate Insurance (2022 ONSC 803)

The claimant appealed the Tribunal’s decision that she was barred from disputing NEBs due to the limitation period. She missed the limitation period by five days. The Court allowed the appeal, and ordered the Tribunal to rehear the preliminary limitation defence with a new adjudicator. The Court held that the Tribunal erred in three ways. First, the Tribunal improperly considered the length of the delay by considering the 735 days since the denial of NEBs rather than just the five day delay. Second, the Tribunal improperly analyzed the prejudice to the insurer by considering the prejudice that may have arisen during the entire 735 days since the denial of NEBs rather than the prejudice arising over the five day delay. Third, the Tribunal erred by excluding in reconsideration a new email from the claimant’s counsel to the insurer sent on the date the limitation period expired asking if the claimant had been paid NEBs.

Pereira v. Aviva (2022 ONSC 688)

The claimant appealed the Tribunal’s decision that he was not entitled to certain medical benefits because services were incurred prior to submission of a treatment plan, and that he could not add new claims for NEBs and a special award in his written submissions. The Divisional Court dismissed the appeal in its entirety. First, the Court held that the LAT was entitled to govern its own procedure, and there was no issue of law raised in the Tribunal’s refusal to allow additional issues in the original hearing. The claimant was free to commence a new LAT application for the new issues. Second, the Tribunal did not err in its application of section 38(2) which required the submission of a treatment plan prior to incurring a medical benefit. Further, the application of section 38(2) to the claim was one of mixed fact and law, which the Court did not have jurisdiction to interfere with.

Pafco Insurance Company v. Sahadeo (2022 ONSC 328)

The insurer appealed the Tribunal’s preliminary order excluding surveillance at an upcoming hearing. Justice Corbett dismissed the appeal, holding that it was premature and an abuse of process. If the insurer is ultimately unsuccessful at the hearing and if it decides to appeal, it will be open to the insurer to raise the issue of the Tribunal’s exclusion of surveillance as a basis for appeal.

Lockyear v. Wawanesa Mutual Insurance Company (2022 ONSC 94)

The claimant appealed the Tribunal’s decision that he did not suffer a catastrophic impairment due to a GCS score less than 9. The primary grounds for appeal were the Tribunal’s refusal to admit video evidence of the accident and treatment by EMS, and the Tribunal’s decision to allow an IE expert to comment on matters outside of the written report. The Court held that the Tribunal breached the claimant’s right to procedural fairness on both grounds. First, the Tribunal ought to have allowed the video evidence to be submitted as it was relevant and could be probative of the claimant’s GCS score immediately after the accident. Second, the Tribunal ought to have allowed the claimant relief after the IE expert gave opinion evidence not contained in his written report. The Tribunal could have adjourned for a short period to allow counsel to prepare for cross-examination. The Tribunal also could have allowed the claimant to recall his own expert to give reply evidence. The Tribunal’s refusal to allow either was procedurally unfair to the claimant because it denied him an equal opportunity to address the new evidence. The matter was returned to the Tribunal for a new hearing before a new adjudicator.

Patchett v. Optimum Insurance Company (2021 ONSC 8466)

The claimant appealed the Tribunal’s decision that she did not suffer a catastrophic impairment under the Spinal Cord Independence Measure III (“SCIM”), also known as Criteria 2(iii). The Court upheld the Tribunal’s decision, concluding that Adjudicator Boyce was correct in law to dismiss the catastrophic impairment application because the claimant did not suffer a permanent alteration of function in her leg. The Court agreed that a temporary alteration in leg function did not satisfy the section 2(iii) catastrophic impairment definition. The Court also noted that the Tribunal’s decision was based on an agreed statement of fact that the claimant’s SCIM score had improved above 5, which necessarily implied that the claimant’s leg impairment (measured 10 months earlier as a 4 under the SCIM) was not permanent.