The Personal Insurance Co. v. Jia (2020 ONSC 6361)

The insurer appealed the LAT’s decision that counsel acting in a priority matter could not also act in the LAT dispute, and the decision excluding the transcript from the priority EUO from the LAT hearing. The Court dismissed the appeal and concluded that the LAT’s decision was reasonable. It held that a conflict could arise if the same counsel acted in the priority dispute and at the LAT. It also reasoned that the protections of section 33 would not be followed if the priority EUO transcript was admitted without leave of the Tribunal.

B.M. v. Unica Insurance Inc. (19-009381)

The claimant sought entitlement to two medical benefits for physiotherapy and occupational therapy services. The claimant had a significant pre-accident medical history that included a workplace accident, two separate motor vehicle accidents in 2013, chronic lumbar radiculopathy, and chronic lower back pain. He was also involved in a subsequent motor vehicle accident in 2016 after the subject accident. The insurer argued that the disputed treatment plans fail the test for causation. The claimant submitted the disputed treatment plans shortly after the 2016 accident. The insurer argued that the claimant ought to have commenced an accident benefits claim in relation to that loss. The claimant argued that the accident need not be the sole cause of the injuries in order to meet the “but for” test as established in Sabadash v. State Farm. Vice Chair McGee found that the subject accident met this threshold and deemed the two treatment plans to be reasonable and necessary. An issue was also raised as to whether the insurer satisfied the IE notice requirements in section 44(5) of the Schedule. The insurer sent IE notices to the claimant, but omitted crucial information as to the reasons for the sought examination. The notices simply stated “Rescheduled assessment” and “RESCHEDULED” as the reasons. Vice Chair McGee found that the insurer’s notice was patently deficient. Neither of the IE notices provided comprehensible “medical or other reasons” for the requested examinations. She reasoned that an insured person should not be expected to piece together “medical or other reasons” for an examination from disparate notices and correspondence or to advise an insurer of deficiencies in those notices so they may be corrected. Vice Chair McGee concluded that the appropriate remedy was the exclusion of the IE reports.

A.J. v. Aviva General Insurance (19-010794)

The claimant disputed entitled to two treatment plans for physiotherapy and chiropractic services. The insurer disputed the claimant’s entitlement based upon IE reports, and argued that new evidence was submitted in the claimant’s reply submissions were prejudicial. The insurer, by way of motion, requested that the new evidence was improperly submitted and requested it be struck from the hearing record. Adjudicator Grant partially agreed with the insurer regarding the striking of evidence. Adjudicator Grant noted that the right of reply was limited, and reply arguments were not the place to make new arguments or submit new evidence. The paragraphs containing new evidence or arguments were struck, and the paragraphs containing new medical claims (i.e., chronic pain) were struck as well as they were not supported by any previous evidence or arguments. The claimant argued that he was unable to include the new arguments in his original submissions due to COVID 19. Adjudicator Grant did not accept this argument, noting that the claimant could have communicated his inability to meet the submission deadline to the parties to ensure action was taken, and noted that the insurer was prejudiced by the late filing and new evidence as it was unable to mount a defence to the same or reply in kind. Adjudicator Grant determined that the disputed treatment plan for physiotherapy services was reasonable and necessary as both the claimant’s expert report and the IE assessor had reached similar conclusions regarding his physical status. The treatment plan for chiropractic services was not reasonable or necessary as it recommended an exercise bike and home exercises, which did not require the direct supervision of a chiropractor.

I.A. v. TD General Insurance Company (19-006142)

The claimant disputed entitled to 7 treatment plans for chiropractic treatment. The insurer argued that the claimant had filed his submissions two and half months late and requested that the submissions be excluded in their entirety, and sought costs. Adjudicator Grant noted that excluding the claimant’s submissions in their entirety would be severely prejudicial to the claimant and would lead to an unfair result. Adjudicator Grant further noted that although the submissions were submitted well beyond the deadline, the insurer was able to submit a response which appeared to address all of the issue in dispute, and that any prejudice suffered by the insurer would be minimal. Adjudicator Grant ruled that the disputed treatment plans for further chiropractic treatments were not reasonable or necessary. He noted that nowhere in the claimant’s submissions did his treating doctors recommend further chiropractic treatments. Adjudicator Grant awarded the insurer $300 in costs for the claimant’s late filing of submissions, reasoning that the award would deter and prevent such behaviour in the future.

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.

M.V. v. Aviva General Insurance Company (18-011523)

The claimant sought entitlement to IRBs and removal from the MIG. Vice Chair Farlam concluded that the claimant was not entitled to IRBs and that his injuries fell within the MIG. The medical evidence provided showed only soft tissue injuries, and insufficient objective evidence was led regarding chronic pain or psychological impairment. There were also multiple inconsistencies with the claimant’s reporting that called into question the medical opinions based on the claimant’s self-reported symptoms. Regarding IRBs, the claimant himself said during IE assessments that he was not disabled from working from a psychological perspective, and no evidence from the family physician was submitted regarding the claimant’s ability to return to work.

B.A. v. Economical Mutual Insurance Company (18-005968)

The insurer denied the claim for IRBs pursuant to section 31(1)(b), arguing that the claimant had made a material misrepresentation that induced the insurer to enter into the contract. In particular, the claimant allegedly misrepresented her address for the purpose of obtaining a lower premium. As a preliminary issue, the claimant sought to exclude audio recordings between herself and her broker in which she was arranging to buy insurance. The claimant argued that the recordings were made without her consent and violated the Freedom of Information and Protection of Privacy Act. Adjudicator Johal permitted the audio recordings to be considered, noting that the Statutory Power Procedures Act allowed the Tribunal to consider any evidence unless it was inadmissible by reason of privilege. Further, the audio recordings were highly relevant to the issue in dispute. Regarding the section 31 exclusion, Adjudicator Johal concluded that the claimant did make a material misrepresentation and that the insurer was therefore not required to pay IRBs. The claimant did not make an honest mistake regarding her place of residence and knew the importance of providing her correct address to the insurance broker. Adjudicator Johal rejected the claimant’s arguments that waiver or estoppel should bar the claimant from relying on section 31 because the insurer did subsequently increase her premiums after learning of the misrepresentation. Adjudicator Johal held that the Tribunal could not exercise equitable remedies, but also noted that the claimant failed to prove the necessary factual steps to rely on either remedy.

N.Z. v. Economical Insurance (18-009611)

The self-employed claimant disputed entitlement to IRBs, which the insurer was not paying because it had requested further income documentation which the claimant failed to provide. The insurer had suspended IRBs under section 33 until the claimant complied with the requests. As a preliminary matter, Adjudicator Mazerolle allowed the insurer to submit late surveillance reports because they showed the claimant attending his place of work at a time he claimed he was not working. He also allowed the claimant to submit a late accounting report, reasoning that the insurer’s ability to cross-examine the accountant eliminated any prejudice. In terms of pre-accident records, Adjudicator Mazerolle concluded that the claimants Notices of Assessments for the year of the accident and the year prior to the accident were sufficient to calculate the weekly base income, stating that the SABS stated that income reported to the CRA was appropriate for calculating an IRB. In terms of post-accident records, Adjudicator Mazerolle held that the insurer was justified in requesting additional information (corporate tax filings, information about the claimant’s work duties and hours) because it appeared that the claimant was continuing with some level of work while claiming that he was unable to do so. The insurer was permitted to suspend payment of IRBs until the claimant provided the requested records.

K.V. v. Aviva General Insurance Company (19-006030)

The claimant sought entitlement to one treatment plan for chiropractic services. Adjudicator Cavdar concluded that the claimant had not adduced sufficient evidence to demonstrate that the proposed treatment plan was both reasonable and necessary. The decision was based on the fact that the treatment plans did not shed light on how the proposed chiropractic services would provide relief to the claimant based on the symptoms she was suffering at the time. The insurer also raised the procedural issue that the claimant’s written submissions should be struck in their entirety as they were submitted late and in breach of the Case Conference Order. The insurer further noted that the claimant submitted certain documentary evidence upon which it sought to rely more than one month after the deadline. The insurer sought an order that the claimant’s submissions be struck in their entirety or the records submitted late be struck, or if allowed to rely on the records submitted, the insurer be permitted a further right to respond. Adjudicator Cavdar found that it would not be procedurally fair to the claimant to strike the day-late submissions. Further, Adjudicator Cavdar wrote that it was not unduly prejudice to the insurer because the prejudice of striking the claimant’s day-late submissions outweighed any prejudice the insurer would be subjected to. Adjudicator Cavdar held that it would also be procedurally unfair to strike the evidence adduced by the claimant even though it was a month late and in violation of the Order. This was because the claimant provided a clear avenue to the insurer to garner sufficient additional time to review said evidence and submit its responding arguments at a date that was mutually agreeable. The claimant consented to pushing back the hearing date and the date of the insurer’s submissions, however, the insurer declined this offer and did not provide any explanation.

C.B. v. Allstate Canada (18-009967)

The claimant sought an order for the particulars of redaction in the adjuster log notes, the complete files from IE assessors, further log notes after the date of the LAT application related to section 33 requests and further IE requests, an updated payment summary, the particulars of whether the cost claimant’s catastrophic impairment assessments were taken from his medical benefits limits, and the particular amounts paid for IEs. The claimant also sought costs of the motion. Adjudicator Chakravarti ordered the insurer to produce the full AB file including correspondence, emails, draft reports, letters of instructions, notes from IE assessors, and any documentary information the insurer possessed relating to IEs. She also ordered production of log notes and emails related to section 33 requests, and related to the requests for further IEs (subject to solicitor-client privilege and litigation privilege). Costs of $500 was awarded to the claimant because the insurer had failed to provide many records that had been ordered produced in earlier Orders, including a nine month delay in producing the IE file. She found the insurer’s actions rose to the threshold level of being unreasonable and frivolous, and even in bad faith.