Category: Divisional Court

Johnson v. Jevco (2021 ONSC 4870)

The insurer appealed the Tribunal’s reconsideration decision which concluded that the motorcycle operated by the claimant was insured under its policy as a “”newly acquired automobile””. The claimant had purchased the motorcycle 11 days before the accident, but did not notify the insurer until one month after the purchase. The “”newly acquired automobile”” provision of the OAP 1 provides coverage to newly acquired automobiles for 14 days, provided the insurer is notified of the purchase and the policyholder pays any additional premiums. The insurer argued that the motorcycle was not insured under its policy because it was not notified within 14 days of the purchase, and because it did not underwrite motorcycle insurance generally. The Court dismissed the appeal and affirmed the Tribunal’s reconsideration. The Court held that the “”newly acquired automobile”” required the insurer to insure the motorcycle regardless of the insurer’s general approach to not insuring motorcycles, because the OAP 1 was a standard form contract that the insurer could not unilaterally opt out of. The Court also held that the claimant did not need to notify the insurer of the purchase within 14 days, and that the 14 days referred to a “”grace period”” for which coverage was provided to the motorcycle regardless of notification or payment of any premium. The expectation of additional premium being required was for continued insurance after the 14 days. The premium being paid by the claimant already provided the 14 day grace period to him automatically. Only once the 14 day grace period elapsed was the motorcycle no longer covered by the policy, as the claimant had not notified the insurer of the purchase until later. The insurer was therefore not allowed to rely upon the section 31 exclusions relating to the claimant’s operation of an uninsured automobile, as the motorcycle was in fact insured.

Kyrylenko v. Aviva Insurance Canada (2021 ONSC 4929)

The claimant appealed the Tribunal’s decision that he was not entitled to payment for benefits related to two treatment plans that the insurer had failed to respond to within 10 business days. Despite the language of section 38(11), the Tribunal considered whether the medical benefits were reasonable and necessary, and whether the MIG applied and barred entitlement to the claimed in-home assessment. The Divisional Court granted the appeal and held that the insurer was liable for all amounts on the treatment plans related to the 11th business day onwards until the treatment plan was properly denied. The Tribunal erred in considering the “”reasonable and necessary”” test for the entitlement when section 38(11) applied, and the Tribunal erred in considering the prohibition on in-home assessments under section 25(2) for MIG claims, given that section 38(11) required payment. The Court ordered the insurer to pay the treatment amounts that relate to the period after the 11th business day following submission of the treatment plan. The Court returned to matter to the Tribunal for a decision on the claim for a special award.

Malitskiy v. Unica Insurance Inc. (2021 ONSC 4603)

The claimant appealed the LAT reconsideration in which the Tribunal held that he was only entitled to ACBs calculated by using the Form 1 hourly rate multiplied by the time received for each service (rather than the full Form 1 amount of $6,000), and the Tribunal’s decision that the claimant was not entitled to a special award. The Divisional Court dismissed the appeal. It held that the quantum of ACBs payable was properly determined using the hourly rates set out in the FSCO Guidelines and the Form 1, and that the insurer was not required to pay for attendant care services in excess of those hourly rates. The Court also held that the Tribunal’s reconsideration applied the proper principles of law (as described in Plowright v Wellington). A special award could not be granted simply because the insurer had made the wrong adjusting decision.

Fratarcangeli v. North Blenheim Mutual Insurance Company (2021 ONSC 3997)

The Divisional Court considered three LAT decisions addressing section 7 of the LAT Act, to determine whether the Tribunal had the power to extend the two-year limitation period. The Court held that the LAT Act did grant the Tribunal the power to extend the limitation period and upheld two of the decisions in which the adjudicators had granted the extensions. The Court held that the third matter, in which the adjudicator had held that the LAT did not have the power to extend the limitation period, had to be returned to the adjudicator for a determination on whether the extension should be granted.

Dominion of Canada General Insurance Company v. Ridi (2021 ONSC 3707)

The insurer appealed the Tribunal’s decision that HST on attendant care benefits is payable above the $6,000 monthly maximum and that HST payments do not come out of the attendant care benefit limits. The Divisional Court allowed the appeal and reversed the Tribunal’s decision. The Court held that prior to the June 3, 2019 amendments, HST charged on attendant care benefits is paid out of the overall limits, and does not create entitlement to payments in excess of $6,000 per month. The Court held that the Tribunal erred in interpreting a Guideline as authorizing payment in excess of the statutory limits.

Porter v. Aviva Insurance Company of Canada (2021 ONSC 3107)

The insurer appealed the Tribunal’s decision that the claimant was involved in an accident. The claimant slipped and fell on ice while making her way to a Lyft vehicle in her driveway. The Court granted the appeal and concluded that the facts of loss did not qualify as an accident. The Tribunal erred by conflating the “but for” test with the direct causation test. Entitlement to accident benefits required that the use or operation of the vehicle be a direct cause of the injuries. In this case, the car was at best ancillary to the incident. More was required than establishing that the location of the vehicle led to the incident occurring. Ice and snow was the direct cause of the injuries, which was insufficient to establish direct causation for accident benefits entitlement.

Yatar v. TD Insurance Meloche Monnex (2021 ONSC 2507)

The claimant appealed and sought judicial review of the Tribunal’s decision that her claims were barred by the limitation period. The Court dismissed both the appeal and the judicial review. The Court explained that statutory appeals are limited to strict questions of law, and the claimant had failed to identify an error of law on which to appeal; rather, she was appealing on a question of mixed fact and law, which were not subject to the statutory appeal. Judicial review, on the other hand, was a discretionary remedy that was only to be granted in exceptional circumstances. The Court noted that the Legislature had intended to restrict matters on which the Tribunal could be reviewed, and acknowledged that the Tribunal’s reconsideration process weighed in favour of a more limited right to judicial review. Again, the nature of the alleged error – being one of mixed fact and law – meant that the Court was to be highly deferential, and only intervene if the error is so serious as to constitute an error of law.

Cura v. Aviva Insurance Canada (2021 ONSC 2290)

The claimant sought judicial review of the Tribunal’s decision that her withdrawal of consent for the IE facility to possess her personal information amounted to IE non-attendance. The claimant’s reconsideration request had been dismissed as pre-mature. The Divisional Court dismissed the review, holding that it was premature. Parties are not to appeal or seek judicial review of a Tribunal decision until the matter has been finally decided by the Tribunal. The Court was critical of the claimant’s representatives, who had brought similar proceedings and putting up roadblocks to prevent IEs from taking place.

Beaudin v. Travelers Insurance Company of Canada (2021 ONSC 1389)

The insurer appealed the Tribunal’s decision that the dirt bike involved in the accident was an automobile for the purposes of the SABS. The Tribunal had concluded that the dirt bike was required to be insured under the Off-Road Vehicles Act and was not exempt from insurance through the regulation that allowed off-road vehicles to be uninsured when “driven or exhibited at a closed course competition or rally sponsored by a motorcycle association.” The Court dismissed the appeal and confirmed that the dirt bike was considered an automobile. The Court agreed with the Tribunal’s approach to interpreting the ORVA as being for the protection of innocent victims of automobile accidents, and the narrow reading of the exemption to the ORVA.

Higashi v. Western Assurance Company (2020 ONSC 7616)

The claimant appealed the Tribunal’s decision that her claim for IRBs was barred by the limitation period. She argued that the insurer’s denials were invalid because the insurer did not provide copies of the IE reports to the practitioners who completed the Disability Certificates. The Court agreed with the Tribunal that the insurer’s failure to provide the IEs was not fatal to the limitation period. The insurer communicated all of the information required to the claimant to enable her to decide whether to dispute her entitlement.