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.

Penney v. The Co-operators General Insurance Company (2022 ONSC 3874)

The claimant appealed the Tribunal’s decision denying her motion to remove the insurer’s counsel due to an alleged conflict of interest. The insurer’s counsel acted in the LAT dispute and in a priority dispute. The Divisional Court in The Personal v. Jia upheld a decision by the Tribunal that such representation in both matters was a conflict. In the present case, the Tribunal found that no conflict existed, and the matter was to proceed to a hearing. The Court dismissed the appeal, holding that the Tribunal’s order was interlocutory in nature, and the Court did not have jurisdiction to hear the appeal. The LAT Act restricted appeals to final decisions of the Tribunal. The Court was critical of the decision in The Personal v. Jia, stating that the panel hearing that matter erred in agreeing to hear the appeal, and the Court in the present matter declined to follow it. The Court commented+B2004 that a party could seek judicial review of an interlocutory decision, but only in exception circumstances, and the Court noted that the claimant in this matter had not sought judicial review.

Warren v. Licence Appeal Tribunal (2022 ONSC 3741)

The claimant appealed the Tribunal’s decision that he was entitled to only $2,600 in IRBs, and that he was not entitled to a special award. His grounds of appeal were based on allegations of unfairness. First, he argued that the Tribunal’s reconsideration process was procedurally unfair because it permitted the adjudicator hearing the matter at first instance to also hear and decide the reconsideration. Second, he argued that the Tribunal’s error in assigning an adjudicator to decide a motion who had not heard the oral submissions rendered the whole matter unfair, despite the Tribunal cancelling that decision and re-assigning the correct adjudicator. The Court dismissed the appeal. The Court held that the Tribunal’s rules permitting the same adjudicator that heard the matter initially to conduct the reconsideration did not violate any principles of procedural fairness. Second, the Court held that the Tribunal corrected any breach of procedural fairness in re-assigning the correct adjudicator to decide a motion and cancelling the earlier decision. The Court also rejected an argument that the Tribunal was institutionally biased, which the claimant argued based on statistics showing that the Tribunal finds in favour of insurers more often than applicants.

Singh v. Wawanesa Mutual Insurance Company (2022 ONSC 3361)

The claimant appealed the LAT’s decision that she was not entitled to IRBs. She argued that she was denied procedural fairness by the Tribunal due to late production of raw testing data from an IE psychologist. She also argued that the insurer did not make best efforts to obtain the IE assessor’s records. The Court dismissed the appeal, finding that the claimant was given a fair hearing. The claimant had the IE reports well in advance of the hearing, and knew the case she had to meet in responding to the IE reports. The claimant was not restricted in the experts she could retain to respond to the IE reports. When the raw test data was delivered during the hearing, the Tribunal granted an adjournment of five weeks to allow the claimant and her expert to process the data. Additionally, the claimant was given the opportunity to cross-examine the IE assessor and test the reliability of her conclusions. The Court also determined that the Tribunal applied the correct legal test for determining whether the insurer made best efforts to obtain the IE assessor’s records. As such, there was no error of law.

Bagherian v. Aviva Insurance Company (2022 ONSC 3103)

The claimant appealed the Tribunal’s decision dismissing his application due to repeated non-attendance at IEs. The Court dismissed the appeal, holding that the LAT had the legal authority to dismiss the application. The claimant’s failure to cooperate in obtaining IEs interfered with the insurer’s ability to participate in the process before the Tribunal, and caused delay in the timely determination of the matter before the Tribunal. The Tribunal was justified in concluding that the claimant’s behaviour amounted to abuse of process. The Court also rejected the claimant’s argument that the Tribunal did not have the power to require that he sign a consent as part of the IE process. The Court affirmed that the Tribunal does have such power as part of its power to require the claimant to cooperate in the IE process.

Gore v. Rusk (2022 ONSC 2893)

The insurer appealed the Tribunal’s decision that the claimant suffered a catastrophic impairment, and that he was entitled to NEBs. The Court dismissed the appeal, holding that both appeals were on matters of mixed fact and law and that there were no extricable legal error that had been demonstrated. The findings regarding each WPI allocation were findings of fact, as was the issue of whether combining certain ratings would entail double-counting or overlap. The Court also dismissed the argument that the reconsideration process was unfair because only one of the two adjudicators that heard the original matter conducted the reconsideration. The Court held that the Tribunal had broad authority to conduct reconsiderations, and that any adjudicator could hear the reconsideration, including the adjudicator or adjudicators hearing the original matter, or an entirely new adjudicator.

Micanovic v. Intact Insurance (2022 ONSC 1566)

The claimant appealed a production order made by the Tribunal for him to produce personal and corporate income tax records from his housekeeping provider. The Divisional Court granted the appeal and set aside the order. The Court explained that even though the production order was interlocutory, the order was “fatally flawed” and had to be set aside. First, the Tribunal erred in its understanding of the housekeeping claim. The productions were ordered produced on the belief that an economic loss was being advanced by the claimant and service provider. To the contrary, the housekeeper stated that she was acting in the course of employment though a company that existed prior to the claimant’s accident. Second, the Tribunal believed that the housekeeping provider was the spouse of the claimant. That finding was an error and not supported by any evidence, nor argued by either party. Finally, the claimant had no control or power to produce the records of the housekeeper, and could therefore not be ordered to produce the records.

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.

Harvey v. Economical Insurance Company (19-006159)

The claimant applied to the LAT seeking entitlement to various medical and rehabilitation benefits and a special award. In addition, the claimant brought a motion seeking to exclude the insurer’s submission of surveillance and the transcript from the claimant’s EUO. The claimant submitted that the insurer conducted surveillance prior to the EUO, which demonstrated that it was preparing for litigation as opposed to adjusting her file in good faith. The claimant argued that this was a conflict of interest and the insurer’s failure to disclose the surveillance prior to the EUO was trial by ambush. She also maintained that it was a conflict of interest for the counsel that conducted the EUO to represent the insurer in the LAT dispute. In support of her position, the claimant relied on the Divisional Court’s decision in The Personal Insurance Company v. Jia, in which the court upheld the LAT’s decision that an EUO obtained in the priority dispute should not be permitted in the accident benefit hearing because it was not obtained in compliance with section 33(2) of the SABS. Adjudicator Hines found that the Divisional Court decision was distinguishable as it dealt with evidence obtained in a priority dispute, whereas in the subject case the insurer obtained the EUO as part of the accident benefit claim and in compliance with section 33(2) of the SABS . Adjudicator Hines found there was no breach of any firewall between the accident benefit, tort or priority dispute, and that it is not uncommon for an insurance company to retain the same counsel for the duration of an accident benefit claim (i.e., for a s. 33 EUO and then later in response to a LAT application). With regards to the surveillance evidence, Adjudicator Hines stated that the claimant did not direct the LAT to any case law dealing with whether there was a conflict of interest due to the timing of the insurer’s surveillance or rules for when an insurer is obligated to disclose surveillance in advance of an EUO. The claimant’s request for the exclusion of EUO and surveillance was denied. Adjudicator Hines found that the claimant was entitled to the proposed assistive devices only.

Zakaria v. Wawanesa Mutual Insurance Company (20-008398)

The claimant sought entitlement to NEBs and various medical benefits. The insurer raised a preliminary issue regarding the admissibility of the claimant’s chronic pain assessment, which was served two months after the production date set at the Case Conference. Adjudicator Kepman found the claimant’s chronic pain assessment inadmissible, as the claimant consented to the production date and prevented the insurer from commissioning its own assessment of the claimant. The insurer raised a further preliminary issue regarding the admissibility of the claimant’s affidavit. Adjudicator Kepman also found that the claimant’s affidavit was inadmissible, as the Case Conference Order specified that no affidavits would be submitted into evidence and the claimant failed to ask permission to include the affidavit as part of her written submissions. With respect to entitlement, Adjudicator Kepman determined that the claimant was not entitled to the occupational therapy assessment, physiotherapy, or NEBs. However, the claimant was entitled to the assistive devices treatment plan, in part because the insurer’s IE assessor did not comment directly on the appropriateness of the assistive devices in question.