Category: Divisional Court

Traders General Insurance Company v. Rumball (2022 ONSC 7215)

Post author By tgp-admin
Post date December 21, 2022
No Comments on Traders General Insurance Company v. Rumball (2022 ONSC 7215)

Both the insurer and the claimant appealed the Tribunal’s decision that the claimant was entitled to IRBs up to the 104 week mark. The insurer appealed the finding that the limitation period did not bar the IRB claim because the denial was not clear and unequivocal. The claimant appealed the finding that she was not entitled to post-104 week IRBs. The Court dismissed both appeals. Regarding the limitation period, the Court noted that the matter was one of mixed fact and law. The Tribunal’s finding that the denial was not clear and unequivocal was not open to appeal as it was not an error of law. Regarding the post-104 week IRBs claim, the Court held that the only applicable disability test is the “complete inability” test in the SABS. The Court rejected the claimant’s argument that the standard described in Burtch v. Aviva (a test stating that suitable employment means employment in a competitive, real-world setting, considering an employer’s demands for reasonable hours and productivity and a test that the work should also be comparable in terms of status and wages), as it was not stated in the SABS. The Tribunal held that the claimant had reasonably suitable alternative employment available to her, and that she had some functional ability to work in the retail sector. As such, there were no reviewable legal errors for the Court to address.

Nash v. Aviva General Insurance Company (2022 ONSC 6723)

Post author By tgp-admin
Post date November 30, 2022
No Comments on Nash v. Aviva General Insurance Company (2022 ONSC 6723)

The claimant appealed the Tribunal’s decision that he was not entitled to IRBs. The claimant argued that the Tribunal incorrectly applied the SABS, misinterpreted the IRB sections, misapprehended the evidence, and breached natural justice. The Court dismissed the appeal, holding that there were no errors of law committed by the Tribunal. The Tribunal’s decision to deny IRBs flowed from the findings of fact made by the adjudicator. The findings of fact were permissible in light of the evidence before the Tribunal, and the Court would not reweigh the evidence. The application of the SABS and the IRB test to the findings of fact was an issue of mixed fact and law, which was not appealable. The claimant failed to raise any issues of law upon which a reversible error had been made.

Vaitheeswaran v. State Farm Mutual Automobile Insurance Company (2022 ONSC 6346)

Post author By tgp-admin
Post date November 25, 2022
No Comments on Vaitheeswaran v. State Farm Mutual Automobile Insurance Company (2022 ONSC 6346)

The claimant appealed the Tribunal’s decision regarding the quantum of ACBs awarded, and the date interest began to accrue. The claimant also sought judicial review of a FSCO decision relating to housekeeping expenses. The Court dismissed the appeal, holding that the Tribunal did not commit any legal errors in its award of ACBs. The Court agreed that basic supervisory care was generally not payable for the cost of emotional support. The Court also accepted that the Tribunal’s denial of attendant care benefits for cleaning tasks that overlapped with housekeeping chores was appropriate. The Court agreed with the Tribunal’s holding that interest on ACBs only began from the date upon with the Form 1 was submitted to the insurer, as the SABS did not require payment of ACBs prior to submission of the Form 1. The Court also dismissed the judicial review of the FSCO decision, holding that FSCO correctly found itself functus officio in relation to a claim for housekeeping expenses after a consent order was made dismissing the claim, following a settlement between the claimant and the insurer.

Basuric v. Dominion of Canada General Insurance Company (2022 ONSC 6148)

Post author By tgp-admin
Post date November 24, 2022
No Comments on Basuric v. Dominion of Canada General Insurance Company (2022 ONSC 6148)

The claimant appealed the Tribunal’s decision that her application for accident benefits was submitted late without reasonable excuse, and that she was barred from seeking accident benefits. The Court dismissed the appeal, holding that the appeal was on a point of mixed fact and law, and as such was not subject to appeal. The Court also held that the claimant sought to raise new arguments on appeal, which was improper.

Allo v. Licence Appeal Tribunal (2022 ONSC 6368)

Post author By tgp-admin
Post date November 15, 2022
No Comments on Allo v. Licence Appeal Tribunal (2022 ONSC 6368)

The claimant appealed the Tribunal’s decision denying an adjournment of a scheduled hearing. The Court dismissed the appeal, holding that the denial of the adjournment was an interlocutory step from which no appeal was permitted. The Court allowed the claimant to convert the appeal to a judicial review if proper submissions were made within 10 days, but noted that a judicial review may also be premature.

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

Post author By tgp-admin
Post date October 26, 2022
No Comments on 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)

Post author By tgp-admin
Post date October 24, 2022
No Comments on 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)

Post author By tgp-admin
Post date October 21, 2022
No Comments on 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)

Post author By tgp-admin
Post date September 12, 2022
No Comments on 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)

Post author By tgp-admin
Post date September 1, 2022
No Comments on 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.

Contact Us

Contact Us

Contact Us