Category: Divisional Court

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.

Varriano v. Allstate (2021 ONSC 8242)

The claimant was in an accident in September 2015. He was paid IRBs until December 2015. In a December 30, 2015 EOB letter, the insurer notified the claimant that: “Your Income Replacement Benefit has been stopped on December 2, 2015, as you returned to work full-time on December 2, 2015. No further Income Replace Benefit will be paid after this date.” In July 2018, the claimant applied to the insurer to resume his IRBs on the basis that he was forced to stop working as a result of accident-related injuries. The insurer denied the claim, stating: “Please refer to our explanation of benefits dated December 30, 2015. Our position remains unchanged.” In September 2018, the claimant applied to the LAT seeking entitlement to IRBs. The insurer argued that the claim for IRBs was time-barred because the claimant failed to apply to the LAT within two years of the December 30, 2015, IRB termination letter. The issue before Adjudicator Boyce was whether the December 2015 letter complied with the requirement in s. 37(4) of the SABS to provide “medical and any other reasons” for the decision to terminate IRBs. Adjudicator Boyce found that the insurer was not required to provide medical reasons for its denial of IRBs under s. 37(4), the December 2015 letter was a proper refusal under s. 56 of the SABS, and the limitation period had expired. A request for reconsideration was dismissed. The claimant appealed to the Divisional Court. Justice Mandhane allowed the appeal, finding that the December 2015 letter did not comply with s. 37(4) or case law requirements for medical and other reasons because it did not refer at all to the claimant’s medical condition or the specific provisions of the SABS that it relied upon to deny benefits. Justice Mandhane held that “insurers are not required to manufacture medical reasons where they do not exist, but to be explicit as to whether or not such medical reasons support denying or limiting coverage. If they explicitly deny having medical reasons to support their determination, the Applicant will come to understand that their disability or “impairments” is not currently in issue.” Pursuant to the Court of Appeal decisions in Sietzema and Bonaccorso, the insurer argued that even if the reasons in the December 2015 letter were deficient, the limitation period was triggered because the denial was clear and unequivocal. Justice Mandhane found that “Sietzema and Bonaccorso are of limited assistance because the Court was considering the proper interpretation of the pre-2010 SABS, which did not explicitly require ‘medical and any other reasons’ as part of the insurer’s decision to deny IRBs. The Court of Appeal’s narrow focus on the clarity of the insurer’s ultimate decision to deny benefits cannot be justified in the face of the legislature’s 2010 amendments….” Justice Mandhane found that the December 2015 letter was not a valid refusal and did not trigger the running of the limitation period.

Awada v. Allstate Insurance Company (2021 ONSC 8108)

The insurer appealed a production order made by the Tribunal in advance of ongoing proceedings. The Court dismissed the appeal as premature, holding there were no exceptional circumstances justifying appellate intervention by the Court. The insurer’s arguments were premised on the possibility of unfairness rather than any inevitable substantive unfairness, which could justify review of the orders. The Court wrote that the hearing adjudicator’s task included ensuring fairness to both sides as the case moved forward, and that an appeal would be available to the unsuccessful party at the end of the hearing if the party was not treated fairly.

Sajid v. Certas Home and Auto Insurance Company (2022 ONSC 2071)

The claimant appealed the Tribunal’s decision that he was not involved in accident. He was the driver of a taxi, and was assaulted by a passenger about 50 steps from the taxi while following him to his home to get payment for the fare. The Divisional Court dismissed the appeal, holding that the Tribunal did not err in finding the incident was not an accident. Neither the purpose test nor causation test were met. The Court distinguished its decision in North Waterloo v. Samad, where the applicant was injured in an assault, but also in the process of slipping on ice while exiting his vehicle. In the present case, the claimant was injured solely as a result of the assault. The Court explained that a direct cause is one that sets in motion a train of events that brings about a result without the intervention of any other force. The Tribunal was correct in considering whether the assault constituted an intervening event while broke the chain of causation. The Court also noted that applying a “large and liberal” interpretation of the term “accident” could not broaden the definition to include indirect causes of injury or impairment.

Francia v. Licence Appeal Tribunal (2021 ONSC 7847)

The claimant appealed the Tribunal’s decision that he was not involved in an accident. He suffered injuries when responding to a fatal collision between a transport truck and tractor-trailer. The claimant was called to the scene to clean up the industrial spill. The fumes from the chemicals caused him to suffer a collapsed lung requiring surgery. He also suffered psychological injuries as a result of seeing the aftermath of the fatal accident. The Court affirmed the Tribunal’s decision that the claimant was not involved in an accident. The Tribunal correctly applied the purpose and causation test. With respect to the purpose test, the Tribunal concluded that the incident involving he claimant (as opposed to the drivers in the collision) did not result from the ordinary and well-known activities to which automobiles are put. By the time the claimant arrived at the scene the vehicles were non-operational and on fire. With respect to the causation test, the use and operation of the vehicles did not cause the claimant’s injuries. Rather, it was the presence of toxic chemicals on the road, and the claimant’s observations of the deceased that led to the claimant’s impairments. The Court also noted that many of the alleged errors identified by the claimant were factual findings made by the Tribunal, and not open to review on appeal.

Mohamed v. Aviva Insurance Company (2021 ONSC 7175)

The claimant appealed the Tribunal’s decision that the limitation period barred her claim for IRBs. The Court dismissed the appeal as the Tribunal did not commit an error of law. The Tribunal applied the correct legal test for determining whether the insurer’s denial was sufficient. The Tribunal also exercised it discretion not to extend the limitation period applying the correct legal principles. The claimant’s arguments primarily turned on findings of fact which were not reviewable by the Court on appeal. The Court also noted its decision in Yatar v. TD had held that whether a valid denial of benefits and whether a limitation period is triggered are issues of mixed fact and law.

Fariad v. Intact Insurance Company (2021 ONSC 6965)

The claimant appealed the Tribunal’s decision that he was not involved in an accident. He had been driving an Uber and asked his passengers to leave due to unruly behaviour. After getting out the vehicle, a passenger struck the vehicle. The claimant sped away. He alleged suffering emotional and psychological injuries due to the incident. He also alleged striking his knee on the steering wheel when driving away. The Court held that the Tribunal did not make an error of law. The Tribunal applied the purpose test and concluded that the claimant’s injuries did not arise from the ordinary and well-known activities to which automobiles are put. The Tribunal also made findings of fact that the claimant’s psychological injuries arose from the altercation with the passengers rather than the use and operation of a vehicle. The Tribunal also held that even if the purpose test had been met, the causation test would not have been met. Finally, the Tribunal held that the claimant did not sustain a physical injury when leaving the scene. The Court held that the Tribunal’s application of the purpose and causation tests were correct, and that the Tribunal’s findings of fact were not subject to appeal.

Millar v. The Cooperators General Insurance Company (2021 ONSC 6643)

The insurer appealed the Tribunal’s decision that the claimant was an insured person under its policy as a “dependant”. A LAT hearing on the benefits was scheduled for six months later. The Divisional Court dismissed the appeal as being premature because the claimant’s status as an insured person was only a preliminary matter that the Tribunal needed to address before adjudicating entitlement to benefits.

Aviva Insurance Company of Canada v. Suarez (2021 ONSC 6200)

The insurer appealed the Tribunal’s decision awarding four treatment plans for chiropractic therapy, two as reasonable and necessary, and two others due to non-compliant section 38 notices. The insurer argued that because the claimant had not received the treatment, she was not permitted to apply to the LAT. The Court rejected the insurer’s position, holding that the claimant did not have to receive treatment prior to disputing her entitlement. The Court agreed, however, that payment for the treatment plans was not required until the claimant incurred the treatment. The Court also preserved the insurer’s ability to dispute payment upon receipt of invoices and incurred expenses, and held that interest was only payable once the treatment was incurred.

Tipping v. Coseco Insurance Company (2021 ONSC 5295)

The claimant sought judicial review of the Tribunal’s decision that he failed to attend properly requested IEs and that he could not proceed with his dispute relating to a catastrophic impairment. The Court dismissed the judicial review, holding that the claimant ought to have pursued a statutory right of appeal under the Insurance Act, and holding that there were no exceptional circumstances warranting the Court’s interference by way of judicial review. The Court noted that the claimant’s allegations of bias, lack of procedural fairness, and lack of natural justice were all questions of law, which could be addressed on a statutory appeal (though the Court went on to say that these claims seemed to have little meri, noting that strong disagreement with a decision was not sufficient to justify a finding of reasonable apprehension of bias). Finally, the Court noted that the LAT’s decision might not be a final decision, as the claimant could attend the IEs and then proceed with his LAT dispute.