Category: Income Replacement Benefits

Kumar v. Aviva General Insurance Company (2024 ONSC 5882)

The claimant appealed the Tribunal’s decision that he was not entitled to post-104 week IRBs, and the Tribunal’s decision refusing to extend the time for reconsideration. The Court dismissed the appeal and the judicial review, holding that the Tribunal did not make any reviewable errors. The adjudicator was entitled to control the process with respect to the examinations and cross-examinations of witnesses, and the adjudicator applied the property “complete inability” test in the context of the evidence presented at the hearing.

Achaia-Shiwram v. Intact Insurance Company (2024 ONSC 5479)

The claimant appealed the Tribunal’s decision that she did not suffer a catastrophic impairment and that she was not entitled to IRBs. She argued that the Tribunal erred in its causation analysis, in considering pre-existing conditions, and in attributing impairments to a subsequent event. The Court dismissed the appeal. The Court held that the Tribunal did not make any legal errors in its decision. The Tribunal correctly used the “but for” test in determining causation of the psychological injuries, and was correct in considering the claimant’s pre-accident and post-accident functioning in order to determine the cause of the psychological injuries. Finally, the Court held that the Tribunal’s consideration of a subsequent injury as an intervening event was not an error of law.

Said v. Northbridge General Insurance Company (2024 ONSC 5248)

The claimant appealed the Tribunal’s dismissal of her claims based on res judicata. The Court dismissed the appeal, holding that the claimant’s remedy if she disagreed with the first decision was to seek reconsideration or appeal of that decision. The Tribunal’s second decision based on res judicata was correct in law, and did not result in procedural unfairness.

Landa v. The Dominion of Canada General Insurance Company (498/21; 152/22; 396/23; 397/23)

The claimant appealed and sought judicial review in relation to five LAT decisions. The accident that gave rise to the claims occurred in 2007. The issues in dispute in the LAT hearings included the limitation period and entitlement to IRBs and medical benefits. The Court examined whether the LAT decisions disclosed an error of law, were unreasonable, or were rendered in a manner that breached procedural fairness. The appeals and judicial review applications were dismissed.

Adam v. Aviva General Insurance Company (2024 ONSC 3577)

The claimant appealed the Tribunal’s decision that he was not entitled to post-104 week IRBs. The Court rejected the appeal, holding that the Tribunal correctly concluded that the insurer complied with section 37 regarding the denial of IRBs, and the denial did not lack medical reasons or specificity for the denial. The Court also dismissed the arguments that the Tribunal did not properly weigh the evidence.

Fagundes v. Intact Insurance (2024 ONSC 2575)

The claimant appealed the Tribunal’s decision that she was not entitled to post-104 week IRBs. The Court dismissed the appeal. The Court held that there was considerable evidence on which the Tribunal relied in coming to its conclusion, and the Tribunal was entitled to weigh and prefer the expert evidence of the insurer over the claimant. The Court also rejected the argument that the Tribunal applied the wrong test by using the approach in Traders General v Rumball rather than Burtch v. Aviva. The Court wrote that under either approach, the claimant had not proven a complete inability to engage in any employment or self-employment.

Nouracham v. Aviva General Insurance Company (2024 ONSC 2415)

The claimant appealed the Tribunal’s decision that she was not entitled to IRBs because she was not employed at the time of the accident. The Court dismissed the appeal. The claimant was “on call” with a temp agency, and occasionally worked at a factory for one day or several days at most. She had not worked for six weeks at the time of the accident, and she had not worked for at least 26 of the prior 52 weeks. She had worked nine of the prior 17 weeks for between 11 and 26 hours in each of those weeks. The Tribunal applied the Court’s decision in Arab v. Unica in concluding that the claimant was not “employed”. The Court held that the Tribunal properly applied the analysis in concluding that the claimant was not employed, even though she was “on call” and potentially could be called in.

Yatar v. TD Insurance Meloche Monnex (2024 SCC 8)

The claimant appealed the Tribunal’s decision that her claim for IRBs was barred by the limitation period. One of the main issues was whether the claimant was entitled to pursue judicial review of the Tribunal’s decision, in addition to the statutory right of appeal. The Tribunal’s decision was upheld by the lower appellate courts, and the lower courts held that judicial review was limited to exceptional circumstances. The Supreme Court allowed the appeal, holding that the claimant was entitled to pursue both the statutory right of appeal and judicial review. The Court also sent the matter back to the Tribunal for review of the denial of IRBs, as the Tribunal did not consider the effect of the reinstatement of IRBs on the subsequent denial.

Soldatovas v. Wawanesa Mutual Insurance Company (2023 ONSC 3440)

The claimant appealed the Tribunal’s denial of IRBs and a special award, arguing that the decision lacked procedural fairness, reasonableness, and did not consider key evidence. The Court dismissed the appeal, holding that the Tribunal provided the claimant with an opportunity to present his case, and holding that the Tribunal was not required to cite every document submitted by the claimant in its reasons.

Achaia-Shiwram v. Intact Insurance Company (20-004699)

The claimant applied to the LAT disputing her entitlement to IRBs and CAT impairment. The respondent raised a preliminary issue that the claimant did not dispute IRB entitlement within 2 years pursuant to s. 56. At the beginning of the in-person hearing, the claimant attempted to summons two witnesses, the claims adjuster and the CAT OT IE assessor. The respondent objected to these witnesses as the claimant had not provided their names on the witness list provided to the respondent and because the claimant had not properly served a summons to witness on either the claims adjuster or the CAT OT IE assessor. Adjudicator Hines agreed with the respondent noting that the potential witnesses were not served with a summons despite the claimant having ample time to do so. Adjudicator Hines also noted that because the claimant did not include them on their witness list, the respondent would be prejudiced by adding them as witnesses on the eve of the hearing, as the respondent would not have had time to prepare for examinations. The claimant also brought a motion to exclude an IE report based on the hourly rate charged by the IE doctor. The IE doctor confirmed her hourly rate was $225 hour and charged $3,375 for the IE assessment. However, the respondent provided an OCF-21 invoice that confirmed it paid the IE assessor $2,000 as per s. 25 of the SABS. Adjudicator Hines allowed the IE report as evidence. As for the substantial issues, Adjudicator Hines preferred the evidence of the IE assessors with respect to CAT and noted that causation was a major factor. With respect to causation, Adjudicator Hines noted that the claimant argued that the accident caused a decline in her employment performance; however, her failure to submit post-accident employment records to this effect weakened her argument. Adjudicator Hines also pointed to an intervening event of a volleyball injury, which caused further deterioration in the claimant’s condition and ability to work. Adjudicator Hines found that the claimant did not meet her onus of proving that but for the accident she would not have sustained the psychological impairment which formed the basis of her CAT application and IRB claim. As Adjudicator Hines concluded that the claimant did not meet the IRBs disability test, she did not rule on the s. 56 limitation period argument.