Category: Jurisdiction

Mariyadas v. Wawanesa Mutual Insurance Company (19-011670)

The claimant applied to the LAT for entitlement to IRBs of $400 per week ongoing from the date of loss, a treatment plan for physical therapy, and a special award. The insurer agreed that the claimant met the medical test for IRBs, but disagreed on the quantum. The claimant nevertheless requested that the LAT order the insurer to pay IRBs on an ongoing basis. Adjudicator Johal held that she did not have jurisdiction to order the insurer to pay IRBs on an ongoing basis, as there was no dispute between the claimant and the insurer. She declined to follow FSCO cases which had made such orders. In terms of the IRB quantum, Adjudicator Johal accepted the insurer’s calculations. The claimant was self-employed as a 50 percent owner of a cleaning company with her husband. The claimant and insurer disagreed on how to treat post-accident subcontractor expenses. The claimant’s accountants attributed the full amount of subcontract expenses to the claimant. The insurer’s accountants attributed only 50 percent of the expenses. Adjudicator Johal rejected the claimant’s accountant’s report, as it relied on outdated FSCO cases and did not follow the recent decision in Surani v. Perth. Adjudicator Johal held that the post-accident expenses had to be apportioned in accordance with the claimant’s ownership of the company. The disputed treatment plan was awarded as physiotherapy provided ongoing pain relief. A special award was not granted. Adjudicator Johal held that it was reasonable for the insurer to request ongoing business records in accordance with its obligation to continuously adjust the claim.

Phan v. Security National Insurance Company (20-011925)

The claimant brought an initial application where the LAT held that her impairments were predominantly minor, that she was subject to the MIG, and denied her claim for six treatment plans because her MIG limits were exhausted. The claimant brought a subsequent application seeking entitlement to nine treatment plans and assessments. The insurer brought a preliminary motion to dismiss the claim on the grounds of res judicata. Vice Chair Flude found that the claimant failed to bring forward evidence of recent deterioration in her condition that resulted in her impairments no longer being the result of predominantly minor injuries. The only new evidence that was provided by the claimant involved complaints of back pain, but which did not tie that complaint to impairments sustained in the accident. Vice Chair Flude refused to consider imaging reports relied on by the claimant during oral submissions, as these reports were previously available for disclosure in the first hearing and no reason was provided as to why it was not disclosed at that time. As such, Vice Chair Flude held that res judicata applied to bar her claim.

Grewal v. Peel Mutual Insurance Company (2022 ONSC 4082)

The claimant appealed the Tribunal’s motion decision dismissing her request to add punitive damages to the LAT application. The Court dismissed the appeal, holding that it did not have jurisdiction to hear the appeal because the motion was an interlocutory step. The Tribunal’s decision could only be appealed upon the final decision on the merits.

Gilani v. Travelers Insurance Company of Canada (19-009248)

The claimant brought a motion to add claims for extracontractual issues, to add claims for bad faith against the adjusters personally, and to add claims against an investigation company for intrusion upon seclusion. Adjudicator Mazerolle held that the Tribunal did not have the statutory authority to adjudicate claims outside of the SABS and the accident benefits contained therein. No statutory authority or regulation gave the Tribunal the power to adjudicate tort claims or extracontractual issues aside from a special award.

Alazab v. Aviva General Insurance (19-011494)

A preliminary issue hearing was held where Adjudicator Norris determined that the claimant was barred from proceeding under the doctrine of res judicata. The Tribunal had previously determined that the claimant’s injuries had not been caused or exacerbated by the accident. The claimant argued that her second application was for now for entitlement to NEBs and that she had new evidence in the form of catastrophic impairment assessment reports which had been obtained, but not submitted as part of her initial application. The Tribunal disagreed with the claimant’s argument. Adjudicator Norris wrote that when the Tribunal determined that she did not sustain an impairment from the accident, it was also concluded that she would not qualify for NEBs. Further, the catastrophic impairment assessment reports were not new evidence. The reports were in the possession of the claimant when she applied for reconsideration of the original decision and if she believed that the reports would have affected the outcome of her claim, she was required to submit them at that time. The principle of res judicata meant that the claimant could not relitigate a matter and the appeal is dismissed.

Maycid v. TD General Insurance Company (20-012985)

The claimant was involved in an accident in Quebec. He submitted his OCF-1 to the insurer, and elected under section 59 to receive SAAQ benefits. A disagreement arose between the claimant and the insurer as to the SAAQ benefits the claimant was entitled to. The claimant applied to the LAT. The insurer argued that the LAT did not have jurisdiction to hear the dispute, and argued that the claimant was required to apply to the Quebec tribunal. Adjudicator Flude rejected the insurer’s arguments, and held that the LAT had jurisdiction to decide the dispute. Although the claimant was receiving benefits provided by the SAAQ regime, those benefits were being paid in accordance with section 59 of the SABS. The dispute therefore fell within section 280 of the Insurance Act, which defines the LAT’s jurisdiction.

Jarret v. Aviva Insurance Company of Canada (20-007746)

The claimant filed a motion seeking to add punitive damages as an additional issue in dispute to the LAT application. The insurer argued that the Tribunal had determined on numerous occasions that it did not have the power to order punitive damages. After considering the legislation, Adjudicator Mazerolle agreed with the insurer that it was well decided that the Tribunal did not have the authority to add punitive damages to an accident benefits claim. The claimant would not be prejudiced by this decision and was entitled to argue any allegations of bad faith through her application for a special award.

Bobak v. Travelers Insurance (21-004004)

The Tribunal was asked to determine whether the claimant’s injuries were within the Minor Injury Guideline, but no benefits were disputed. Prior to the case conference, the insurer filed a motion to dismiss the claim without a hearing on the basis that the subject matter of the application fell outside of the Tribunals jurisdiction. The insurer highlighted that when filing the application for the LAT, the claimant listed the MIG determination as the only issue in dispute. The insurer argued that the MIG is not a benefit. Adjudicator Lester agreed with the insurers submissions, concluding that under statutory interpretation, the Tribunal does not have jurisdiction to deal with the issue of the MIG unless a benefit is tied to it. The MIG itself is not a statutory accident benefit; it is a guide that defines a minor injury and provides the treatment framework for medical providers. Accordingly, the Tribunal does not have jurisdiction and the application was dismissed.

Nguyen v. Economical Insurance Company (20-006171)

The self-represented claimant was involved in a motor vehicle accident in 2003. In 2018, FSCO denied the claimant’s claims for caregiver benefits and NEBs and awarded costs against the claimant, which she did not pay. The claimant later submitted claims for a CAT determination, NEBs, ACBs, and housekeeping benefits, which the insurer denied. The claimant then applied to the LAT seeking entitlement to these benefits. The LAT application was filed about 2.5 months after the two-year limitation period. A preliminary issues hearing was held to determine: (1) whether the application should be dismissed as frivolous, vexatious, or commenced in bad faith because it was res judicata and there were outstanding costs awarded against the applicant in favour of the insurer, (2) whether the application for CAT determination should be dismissed because of the claimant’s non-attendance at insurer’s examinations, and (3) whether the application should be dismissed because it was brought beyond the two-year limitation period. Vice-Chair Farlam found: (1) that the claims for caregiver benefits and NEBs were barred due to res judicata, and (2) that the application was statute-barred because it was not commenced within two years of the denial of benefits. Vice-Chair Farlam declined to extend the limitation period pursuant to s. 7 of the LAT Act, finding that the claimant failed to show a bona fide intention to appeal within the limitation period, there was incurable prejudice to the insurer, and there was a lack of evidence indicating the application had merit. Because the application was barred due to the limitation period, Adjudicator Farlam did not consider the issue of non-attendance at IEs. The application was dismissed.

Gilani v. Travelers Insurance Company of Canada (19-009248)

The claimant brought a motion for interim benefits, including attendant care benefits at $6,000 per month. The claimant argued that it had been 2.5 years since he was denied the benefits in dispute. The insurer had inadvertently delayed providing catastrophic impairment IE reports for 7 months and post-104 IRB IE reports for 9 months. The dispute resolution process was ongoing for almost 2 years. The claimant’s condition had deteriorated with reported suicidal thoughts. He was arrested and charged with assault against his daughter. The claimant lived separately from the family. He was provided temporary funding by the insurer for a place to live and receive attendant care, which was about to expire. The insurer argued the Tribunal did not have the jurisdiction to award interim benefits given the powers conferred to it under the Insurance Act. Adjudicator Gosio agreed and dismissed the claimant’s motion. Adjudicator Gosio indicated in his reasoning that the jurisdiction of the Tribunal must be found within a statute or regulation. The LAT could only exercise power delegated to it as a statutory tribunal under it’s enabling legislation, and no power to grant interim benefits was given to the Tribunal. With respect to legislative intent, the legislature deliberately removed provisions relating to interim orders previously found in the Act. FSCO arbitrators had the power to grant interim benefits under s. 279 of the Insurance Act, which was repealed when the LAT was granted jurisdiction over accident benefit disputes. To date this power has not been conferred to the LAT. Adjudicator Gosio also reasoned that the SPPA should not be interpreted so broadly to give the Tribunal discretionary powers not explicitly conferred to it. The purpose of the SPPA was to provide a framework for hearings, and not to provide substantive powers to the Tribunal. The intent of s.16.1 of the SPPA, which allowed interim orders, was to allow discretionary power to make interim procedural orders rather than substantive ones.