Category: Income Replacement Benefits

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

Post author By tgp-admin
Post date October 8, 2024
No Comments on 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)

Post author By tgp-admin
Post date September 25, 2024
No Comments on 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)

Post author By tgp-admin
Post date June 21, 2024
No Comments on 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)

Post author By tgp-admin
Post date May 21, 2024
No Comments on 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)

Post author By tgp-admin
Post date May 6, 2024
No Comments on 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)

Post author By tgp-admin
Post date April 30, 2024
No Comments on 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)

Post author By tgp-admin
Post date March 15, 2024
No Comments on 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.

Bewes v. TD General Insurance Company (22-009538)

Post author By tgp-admin
Post date July 25, 2023
No Comments on Bewes v. TD General Insurance Company (22-009538)

A preliminary issue hearing was ordered at the Case Conference to determine if the claimant was barred from pursing her claim for IRBs as she did not submit an OCF-3 within 104 weeks of the accident. The claimant’s accident occurred on September 15, 2020. The claimant submitted an OCF-2 on October 29, 2020. TD responded to the form and requested a completed OCF-3 in order to address IRBs. The claimant submit an OCF-3 on November 5, 2020, but it was not endorsed by a health practitioner. TD then sent several follow-up requests for a completed OCF-3. The requests clearly stated that no IRB would be payable until the completed OCF-3 was received. On October 17, 2022 (i.e., over 2 years post-accident), the claimant submitted a completed OCF-3 dated October 3, 2022, indicating that she was entitled to IRBs. The claimant argued that an OCF-3 was not mandatory for consideration of benefits and that the claimant had substantiated via medical evidence that she was incapable of working. The Insurer argued that submission of an OCF-3 was required pursuant to the SABS and the Guideline. Adjudicator Kuar noted that the OCF-3 was a mandatory form, which shall be provided to the insurer in order to facilitate a claim for IRBs, and that the language supporting this was clear. Adjudicator Kuar ruled that the submission of an OCF-3 was mandatory in order to apply for an IRB, and regardless of any supportive medical evidence towards an IRB, the claimant had not applied for the benefit within 104 weeks of the accident via her failure to submit a completed form as requested. The Application was dismissed.

Rawal v. Economical Insurance (21-007975)

Post author By tgp-admin
Post date July 14, 2023
No Comments on Rawal v. Economical Insurance (21-007975)

The claimant sought entitlement to IRBs, medical/rehabilitation benefits, a psychological assessment, and the cost of an accountant’s report. The respondent denied the claims for medical and rehabilitation benefits because it determined that the claimant’s injuries fell within the MIG. Adjudicator Neilson accepted that the claimant sustained a psychological impairment as a result of the accident that removed him from the MIG. He was therefore entitled to the medical/rehabilitation benefits and psychological assessment sought. With respect to IRBs, Adjudicator Neilson held that the claimant was entitled to IRBs from February 8, 2021 (date of submission of OCF-3) to March 3, 2021 (date of return to work). The claimant was not entitled to IRBs before the OCF-3 was submitted to the respondent on February 8, 2021. Adjudicator Neilson emphasized that the date on which the OCF-3 was prepared was not a consideration. She went on to note that those consequences did not apply prior to submission of an OCF-10 election form, as the SABS do not state that a specified benefit is not payable for any period before the OCF-10 is submitted (unless the OCF-10 was requested under section 33 of the SABS, it was not submitted on time, and the claimant had no reasonable excuse for delay). She also noted that there was no requirement in the SABS for an insurer to mention section 33 when making a request for information or to advise an insured person of the consequences for failing to comply with a section 33 request. The claimant was entitled to the cost of an accountant’s report under section 7(4) of the SABS because his IRB entitlement was not a straightforward simple calculation as he was self-employed at the time of the accident. Accordingly, an accounting report calculating the claimant’s base amount for the purpose of calculating IRBs was necessary.

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

Post author By tgp-admin
Post date June 7, 2023
No Comments on 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.

Contact Us

Contact Us

Contact Us