Category: Divisional Court

Aviva General Insurance Company v. Catic (2022 ONSC 6000)

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.

Arab v. Unica Insurance (2022 ONSC 5761)

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.

C.P. v. Certas Home and Auto Insurance Company (2022 ONSC 5978)

The claimant appealed the Tribunal’s decision dismissing his claim for further IRBs, arguing that the Tribunal erred in allowing IE reports to be admitted without the Expert’s Duty form being completed, in applying the IRB test, and by failing to provide procedural fairness or natural justice. The Court dismissed the appeal. The Court held that the Tribunal had the discretion under the Rules to admit the IE reports without the expert’s form, and that the claimant had ample notice of the insurer’s reliance upon the IE reports. The Court also wrote that the Tribunal’s treatment of the IRB claim was entirely fair and supported by the SABS and the evidence before the adjudicator. Finally, the Tribunal found no denial of procedural fairness or natural justice. The claim was processed and managed within the parameters of the LAT Rules, and the claimant was made well aware of the insurer’s position and evidence it was relying upon.

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.