Category: Divisional Court

Aviva Insurance Company of Canada v. J.A. (2021 ONSC 3185)

The insurer appealed the Tribunal’s decision that it was required to pay for the claimant’s catastrophic impairment assessments even though the assessments were not requested or completed until after submission of the OCF-19 and the catastrophic impairment IEs. The insurer characterized the requested assessments as rebuttal reports, which were not payable under the current version of the SABS. The Court dismissed the appeal, holding that the Tribunal did not make an error of law. The Tribunal made a finding of fact that the claimant had not obtained any earlier assessments, so the requested assessments were not rebuttal assessments. As a matter of law, section 25 was to be interpreted broadly, and the term “preparation” of a catastrophic impairment application did not end when the OCF-19 was submitted. Therefore, section 25 applied and required the insurer to pay for the claimant’s catastrophic impairment assessments.

Aviva General Insurance v. Khan (2020 ONSC 1290)

The insurer sought judicial review of the Tribunal’s decision to award various medical benefits. The Court reviewed the Tribunal’s decision on a correctness standard and dismissed the appeal. It agreed with the insurer that a benefit could not be deemed incurred without a specific finding that the insurer unreasonably withheld or delayed payment of a benefit. However, the Court also wrote that the Tribunal’s decision made it clear that the benefit had been incurred because the services were provided and the claimant owed money to the treatment provider.

Allstate Insurance Company v. Billard (2019 ONSC 6256)

The insurer sought judicial review of the Tribunal’s decision that the limitation period should be extended based on section 7 of the LAT Act. The Divisional Court dismissed the review on the basis that the LAT proceeding needed to first be completed in its entirety before seeking judicial review.

Fordjour v. Royal and Sun Alliance Insurance Company of Canada (2019 ONSC 6268)

The claimant judicial review of the dismissal of her claim on two grounds: that she her family physician should be entitled to give opinion evidence, and that the adjudicator did not properly address causation. The Divisional Court agreed with the claimant and remitted the matter for a new hearing. It held that the Tribunal erred in not permitting the family physician to give opinion evidence at the hearing. The Divisional Court also wrote that the Tribunal had not set out the causation test it had applied, and that it was no appropriate for the test to be “implied.”

Hedley v. Aviva Insurance Company of Canada (2019 ONSC 5318)

Aviva sought reconsideration of the Tribunal’s reconsideration that its section 38 denial did not provide sufficient “medical and any other reasons for the examination,” and that the claimant was not required to attend the IE. The Court upheld the reconsideration decision as falling within the range of reasonableness. The Court wrote: “where reasons are required, they must be meaningful in order to permit the insured to decide whether or not to challenge the insurer’s determination. Mere ‘boilerplate’ statements do not provide a principled rationale to which an insured can respond. In essence, such statements constitute no reasons at all.”

Traders General Insurance Company v. Rumball (2019 ONSC 1412)

The insurer appealed the Tribunal’s decision that the claimant was not barred by the limitation period from seeking IRBs. The Court held that the appeal to Divisional Court was premature, and that the matter should proceed at the Tribunal regarding the claimant’s entitlement to IRBs. If IRBs were awarded, the insurer could then appeal the final decision of the Tribunal. The case was not a rare or exceptional case where the Court should consider an interim or interlocutory decision.

Intact Insurance Company v. Lanziner-Brackett (2018 ONSC 6546)

The insurer sought judicial review of the Tribunal’s decision that the claimant was involved in an accident, and also sought judicial review of the Case Conference adjudicator’s framing of the dispute. The claimant had been struck by the door of a vehicle twice, and then physically assaulted by the driver of the vehicle. The insurer had accepted that the door-related injuries qualified as an “accident,” but that the punches to the face did not. The adjudicator concluded that the whole incident was an “accident.” The Court concluded that the Tribunal’s decision was unreasonable and sent the matter back to the Tribunal for a new hearing. The Court explained that the Case Conference adjudicator’s reframing of the issue in dispute denied the insurer procedural fairness. The Court did not address whether the facts of loss qualified as an “accident.”

Lefebvre v. Aviva Insurance Company of Canada (2018 ONSC 5676)

The claimant sought judicial review of the Tribunal’s decision that she could not pursue specified benefits because she had not completed and returned an election prior to applying to the LAT. The Court dismissed the review. The Court held that the claimant’s failure to submit the election, contrary to section 35 of the SABS, meant that her application was incomplete. The claimant’s submission of an election (for NEBs) after the Case Conference did not retroactively validate her claim. The Court indicated that the claimant could re-apply to the LAT once the insurer had made a decision on the claim for NEBs.

Tomec v. Economical Mutual Insurance Company (2018 ONSC 5664)

The claimant was declared catastrophically impaired seven years after the accident. The insurer had denied entitlement to further attendant care benefits and housekeeping expenses at the 104 week anniversary. The claimant sought entitlement to ACBs and HK expenses from the 104 week anniversary onwards following the catastrophic impairment designation. The insurer argued that the claims were barred by the limitation period. The Tribunal agreed with the insurer that the claims were time barred. On review, the Divisional Court upheld the Tribunal’s decision. It concluded that there was no doctrine of discoverability applicable to limitation periods, and that the time elapsed between the accident and the claimant’s deterioration did not affect the limitation analysis. The denials sent at the 104 week mark were clear and unequivocal, and effectively began the limitation clock.

Zheng v. Aviva Insurance Company of Canada (2018 ONSC 5707)

The insurer applied for judicial review of the Tribunal’s decision that a denial of medical benefits that did not comply with section 38 resulted in the treatment plan being payable and barring the insurer from relying on the MIG. The court found the Tribunal’s decision to be reasonable and concluded that the treatment plans were deemed payable until a proper denial was issued by the insurer. However, the court wrote that its decision was limited to the treatment plans at issue and that section 38(11) did not impose a permanent prohibition on the insurer with respect to whether the claimant’s impairment was covered by the MIG or subject to the $3,500 limit.