Category: Jurisdiction

D.A.S. v. Western Assurance Company (19-010526)

The claimant applied to the LAT for NEBs. The claimant’s OCF3 indicated that she met the tests for IRBs and NEBs. The insurer requested an election pursuant to section 35 of the SABS. The claimant did not return the election and instead applied to the LAT two years later. About six months into the LAT proceedings, the claimant submitted an election for NEBs. The insurer argued that because the election was not submitted prior to the LAT application, there was no dispute between the parties that could be adjudicated. Vice Chair McGee agreed with the insurer and dismissed the claim. She held that the claimant’s failure to submit an election prevented the insurer from property adjusting the claim, and did not give the insurer the opportunity to approve or deny the benefit. Without a denial, there was no dispute for the Tribunal to adjudicate.

K.G. v. Aviva Insurance Company of Canada (19-006535)

The claimant withdrew her LAT Application on June 7, 2019, three days before the scheduled written hearing. On June 18, 2019, the claimant filed another Application disputing the same medical/rehabilitation benefits (but without the original claim for income replacement benefits or attendant care). At the case conference, the insurer raised a preliminary issue that the Tribunal application filed by the claimant was an abuse of process given that the four benefits in dispute were raised in a previous proceeding and were also withdrawn by the claimant. Adjudicator Johal concluded that the second LAT Application was not an abuse of process, particularly as the issues in dispute had never been adjudicated on their merits. He found that to dismiss the claimant’s Application without a hearing would be an extremely harsh result and would impede the claimant’s access to justice. A claimant is entitled to withdraw an application at any time, and does not need the consent of the insurer to do so.

A.G.S. v. Echelon General Insurance Company (18-001994)

The claimant was a fetus in utero at the time of the accident and born prematurely four days after the accident. She was diagnosed with cerebral palsy as a result of her premature birth. The insurer initially paid accident benefits based on a medical opinion, but subsequently questioned causation based on an opinion of an obstetrician. While the claimant filed applications regarding entitlement to attendant care benefits and other accident benefits, the insurer filed the subject LAT for a determination on the causation issue. The claimant argued that the limitation period applied to the insurer changing its position on causation. All of the applications were consolidated into a single dispute and a preliminary motion was heard to decide whether the insurer could change its opinion on causation two years after the accident in reliance on the report of its obstetrician. Adjudicator Grant concluded that the insurer was not precluded from arguing causation at the subsequent hearing. There was no evidence of waiver because the insurer would have had to be shown to have full knowledge of the facts and choose not to assert its right to deny a benefit. Instead, the insurer acted appropriately by approving benefits while it sought to obtain an expert opinion on causation. The insurer’s approval of attendant care benefits did not waive its right to revisit causation and conduct future IEs. Further, the limitation period did not apply to an insurer’s defences. Section 56 only applied to denials of benefits. The claimant also argued that the obstetrician’s report should be excluded because it was obtained by the insurer’s legal counsel. Adjudicator Grant rejected the argument, reasoning that the insurer had provided the claimant with an IE notice and its counsel was simply acting as an agent.

A.S. v. Intact Insurance Company (19-000979)

The claimant was involved in a motor vehicle accident in Alberta. At the time of the accident, he had an insurance policy that was sold in Alberta and was driving a vehicle that was registered in Alberta. He received benefits pursuant to the Alberta Automobile Accident Insurance Benefits and then claimed benefits under the SABS. The insurer refused to pay benefits under the SABS because the claimant was insured under an Alberta policy and had an Alberta address and driver’s licence. The issue at the LAT hearing was whether the Tribunal had jurisdiction to hear the dispute. Adjudicator Norris found that Part V of the Insurance Act did not apply to the claimant’s policy, therefore the claimant was not entitled to file an application pursuant to section 280(2) of the Insurance Act, and the LAT did not have jurisdiction to hear the matter.

R.F. v. Pafco Insurance (17-008708)

On the eve of the hearing, the claimant brought various motions to add the insurer’s counsel as a witness, for production of records from the IE facilities, to hold the insurer’s counsel in contempt, and to adjourn the hearing. The motions all related to the claimant’s counsel’s position that the IE assessors had violated PIPEDA by not providing records or providing incomplete records. Vice Chair Marzinotto dismissed the motions, and noted that the claimant did have some of the requested records in her possession, that the motion was not timely as it was brought only two weeks before the hearing, that the insurer’s counsel had not acted improperly (and had, in fact, attempted to assist in obtaining the requested records), and that the insurer’s counsel was not a necessary witness at the hearing. Vice Chair Marzinotto also noted that any allegations of PIPEDA violations could not be addressed by the LAT. The hearing was adjourned as a result of the claimant’s late motion.

E.L. v. Wawanesa Mutual Insurance Company (19-003212)

The insurer argued that the claimant could not proceed with a LAT hearing because of his failure to attend an IE. The claimant argued that the IE notice was deficient and that the IE request was not reasonable. Adjudicator Punyarthi held that the IE request was reasonable and that the insurer was not required to provide a copy of the contract or retainer between it and the IE facility, or prove which records were given to the IE facility. The request for an IE was also reasonable as the last prior IEs had been performed two years prior and the insurer had to determine whether the MIG still applied to the claimant’s injuries. The adjudicator held that a paper review would not have been sufficient for the insurer at the time the IE was requested, and the insurer would have been prejudiced if a hearing were to proceed. Finally, Adjudicator Punyarthi rejected the claimant’s position that the Tribunal had the authority to reprimand the insurer for a breach of PIPEDA or for an alleged breach of the duty of good faith.

B.E. v. The Personal Insurance Company (18-012331)

The insurer had initially treated the claimant with the MIG, but removed her from the MIG following receipt of medical records. Despite being removed from the MIG, the claimant sought an order that the MIG was unconstitutional. Adjudicator Boyce held that the Tribunal did not have jurisdiction to address the Charter challenge because the dispute regarding the MIG was moot following the insurer’s decision to remove the claimant from the MIG.

K.R. v. Certas Direct Insurance Company (19-003237)

The claimant sought payment of $11,865 for hockey training. The claimant had been actively engage in competitive hockey, and sought to regain physical strength and skill to return to pursue her goal of playing NCAA hockey. Adjudicator Parish dismissed the claim. She held that the claimant failed to comply with section 38(2) by incurring the cost before submitting a treatment plan, and that none of the exceptions to 38(2) applied. She also held that the Tribunal did not have jurisdiction to grant relief from forfeiture, but also, that it would not apply to the facts of the case.

M.I. v. Coseco Insurance Company (18-000742)

The insurer suspended the claimant’s entitlement to IRBs. The claimant applied to the LAT. Before the Case Conference, the insurer reinstated the IRBs. The insurer argued that the LAT did not have jurisdiction to consider the claim for IRBs. Adjudicator Kepman concluded that the Tribunal did not have jurisdiction under the Insurance Act to consider the claim, since all IRBs plus interest had been paid to the claimant. However, she did consider the claim for a special award, and concluded that the insurer had not acted unreasonably in its adjusting of the claim.

D.M. v. Royal Sun Alliance Insurance (18-003146)

The claimant sought reconsideration of the Tribunal’s decision that it could not adjudicate or enforce a purported full and final settlement. Vice Chair Hunter granted the reconsideration and held that the Tribunal did have a more robust jurisdiction under the Insurance Act than simply deciding entitlement to benefits. Whether an accident benefits settlement had been reached fell within the Tribunal’s jurisdiction.