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.

Sharma v. Allstate Insurance (2022 ONSC 803)

The claimant appealed the Tribunal’s decision that she was barred from disputing NEBs due to the limitation period. She missed the limitation period by five days. The Court allowed the appeal, and ordered the Tribunal to rehear the preliminary limitation defence with a new adjudicator. The Court held that the Tribunal erred in three ways. First, the Tribunal improperly considered the length of the delay by considering the 735 days since the denial of NEBs rather than just the five day delay. Second, the Tribunal improperly analyzed the prejudice to the insurer by considering the prejudice that may have arisen during the entire 735 days since the denial of NEBs rather than the prejudice arising over the five day delay. Third, the Tribunal erred by excluding in reconsideration a new email from the claimant’s counsel to the insurer sent on the date the limitation period expired asking if the claimant had been paid NEBs.

Pereira v. Aviva (2022 ONSC 688)

The claimant appealed the Tribunal’s decision that he was not entitled to certain medical benefits because services were incurred prior to submission of a treatment plan, and that he could not add new claims for NEBs and a special award in his written submissions. The Divisional Court dismissed the appeal in its entirety. First, the Court held that the LAT was entitled to govern its own procedure, and there was no issue of law raised in the Tribunal’s refusal to allow additional issues in the original hearing. The claimant was free to commence a new LAT application for the new issues. Second, the Tribunal did not err in its application of section 38(2) which required the submission of a treatment plan prior to incurring a medical benefit. Further, the application of section 38(2) to the claim was one of mixed fact and law, which the Court did not have jurisdiction to interfere with.

Pafco Insurance Company v. Sahadeo (2022 ONSC 328)

The insurer appealed the Tribunal’s preliminary order excluding surveillance at an upcoming hearing. Justice Corbett dismissed the appeal, holding that it was premature and an abuse of process. If the insurer is ultimately unsuccessful at the hearing and if it decides to appeal, it will be open to the insurer to raise the issue of the Tribunal’s exclusion of surveillance as a basis for appeal.

Lockyear v. Wawanesa Mutual Insurance Company (2022 ONSC 94)

The claimant appealed the Tribunal’s decision that he did not suffer a catastrophic impairment due to a GCS score less than 9. The primary grounds for appeal were the Tribunal’s refusal to admit video evidence of the accident and treatment by EMS, and the Tribunal’s decision to allow an IE expert to comment on matters outside of the written report. The Court held that the Tribunal breached the claimant’s right to procedural fairness on both grounds. First, the Tribunal ought to have allowed the video evidence to be submitted as it was relevant and could be probative of the claimant’s GCS score immediately after the accident. Second, the Tribunal ought to have allowed the claimant relief after the IE expert gave opinion evidence not contained in his written report. The Tribunal could have adjourned for a short period to allow counsel to prepare for cross-examination. The Tribunal also could have allowed the claimant to recall his own expert to give reply evidence. The Tribunal’s refusal to allow either was procedurally unfair to the claimant because it denied him an equal opportunity to address the new evidence. The matter was returned to the Tribunal for a new hearing before a new adjudicator.

Awada v. Allstate Insurance Company (2021 ONSC 8108)

The insurer appealed a production order made by the Tribunal in advance of ongoing proceedings. The Court dismissed the appeal as premature, holding there were no exceptional circumstances justifying appellate intervention by the Court. The insurer’s arguments were premised on the possibility of unfairness rather than any inevitable substantive unfairness, which could justify review of the orders. The Court wrote that the hearing adjudicator’s task included ensuring fairness to both sides as the case moved forward, and that an appeal would be available to the unsuccessful party at the end of the hearing if the party was not treated fairly.

Tipping v. Coseco Insurance Company (2021 ONSC 5295)

The claimant sought judicial review of the Tribunal’s decision that he failed to attend properly requested IEs and that he could not proceed with his dispute relating to a catastrophic impairment. The Court dismissed the judicial review, holding that the claimant ought to have pursued a statutory right of appeal under the Insurance Act, and holding that there were no exceptional circumstances warranting the Court’s interference by way of judicial review. The Court noted that the claimant’s allegations of bias, lack of procedural fairness, and lack of natural justice were all questions of law, which could be addressed on a statutory appeal (though the Court went on to say that these claims seemed to have little meri, noting that strong disagreement with a decision was not sufficient to justify a finding of reasonable apprehension of bias). Finally, the Court noted that the LAT’s decision might not be a final decision, as the claimant could attend the IEs and then proceed with his LAT dispute.

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

A motion was brought by the claimant for an order to add additional witnesses (the current claims adjuster and the case manager) and to allow the filing and use of certain documents from the OT’s updated records requested by the insurer to be admitted into evidence. The motion to add the two additional witnesses was dismissed and the filing and use of the new documentary evidence at the hearing was granted. The insurer argued the claimant should not be allowed to rely on the two additional witnesses but consented to the filing and use of the new documentary evidence. The claimant argued that it should be permitted to call the current adjuster who had taken transfer of the file. The previous adjuster, who no longer worked for the insurer, did not have access to the complete AB claims file. The claimant further submitted that he would be prejudiced if the current adjuster was unable to speak to her awareness and adjusting of the claim given recent developments in the claimant’s level of impairment and attendant care needs. The claimant also submitted he would be prejudiced without the testimony of the case manager, who had been his case manager since February 2021 and had provided multiple updates in regard to his impairments and attendant care needs. Adjudicator Gosio reasoned that the addition of two new witnesses were not in compliance with the disclosure requirements set out in the Case Conference Order which indicated the parties were to disclose the evidence and witnesses before the hearing. No motion was brought to extend or vary this deadline. Adjudicator Gosio indicated the timelines in the order were set to ensure the parties had a fair hearing and were not surprised by last minute evidence. The purpose of the Rules is to ensure a fair, efficient and timely resolution of the matter. The hearing in this matter was originally set for 6 days, yet 9 additional days had already been added. A further delay was not justified by adding the additional witnesses.

S.B.S. v. Wawanesa Mutual Insurance Company (17-006935)

The claimant filed a request for reconsideration arising out of Adjudicator Neilson’s decision that he was not entitled to IRBs or the cost of a psychological treatment plan. Adjudicator Neilson dismissed the request. At the initial hearing, the claimant brought a motion to exclude the insurer’s experts’ reports on the basis that the insurer failed to comply with an order to produce the clinical notes and records of its IE experts, in particular the raw test data from the IE psychologist. Adjudicator Neilson had dismissed the motion on the basis that the insurer had provided proof of best efforts to obtain these records. Then, the claimant sought an adjournment so that the IE psychologist could produce the data to the claimant’s treating psychologist. Adjudicator Neilson dismissed that adjournment request, but the hearing was adjourned for other reasons. At the hearing, the claimant’s treating psychologist testified that she did not interpret the raw data as did not pay the fee to obtain this data through a computer program. Ultimately, Adjudicator Neilson agreed with the IE psychologist and on reconsideration, found that the raw data results would not have changed her opinion with respect to the IRB dispute or entitlement to the disputed psychological treatment plan.

Fratarcangeli v. North Blenheim Mutual Insurance Company (2021 ONSC 3997)

The Divisional Court considered three LAT decisions addressing section 7 of the LAT Act, to determine whether the Tribunal had the power to extend the two-year limitation period. The Court held that the LAT Act did grant the Tribunal the power to extend the limitation period and upheld two of the decisions in which the adjudicators had granted the extensions. The Court held that the third matter, in which the adjudicator had held that the LAT did not have the power to extend the limitation period, had to be returned to the adjudicator for a determination on whether the extension should be granted.