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.

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.

Hodge v. Aviva Insurance Canada (19-005751)

The claimant sought entitlement to IRBs from June 25, 2018 to March 2, 2019. Vice Chair Mather first heard a preliminary issue with respect to the Tribunal’s font and spacing specifications. Vice Chair Mather stated that it is open to a party to request an increase in page limits if they do not feel that they can properly make their case within the specified page limit. Second, Vice Mathers heard a preliminary issue with respect to the claimant submitting new evidence in their reply submissions. Vice Chair Mathers allowed the evidence to be heard because there was no prejudice to the insurer in doing so and the claimant met the deadline for exchanging documents. With respect to the claimant’s entitlement to IRBs, Vice Chair Mathers was not satisfied on the balance of probabilities that the claimant suffered a substantial inability to perform the essential tasks of his self-employment as a contractor. Vice Chair Mathers was not persuaded that the claimant met the test for IRBs because of the inconsistencies in his evidence, which affected his credibility. There were multiple contradictory reports with respect to whether or not the claimant had returned to work. Further, the claimant misled the reporting doctors by failing to mention his previous injuries.

N.C. v. Aviva General Insurance Company (19-004666)

The claimant sought reconsideration of the Tribunal’s decision dismissing entitlement to medical benefits. Adjudicator McGee noted that the claimant filed her reconsideration submissions nearly a month after the deadline for submissions. Vice Chair McGee did not make any findings on procedural issues for the late findings, as she dismissed the reconsideration application on its merits. With regard to the claimed medical benefits, Vice Chair McGee held that the Tribunal applied the proper “”reasonable and necessary”” test in concluding that the claimant had reached maximum medical recovery and that no further facility based treatment was warranted. Vice Chair McGee also rejected the claimant’s arguments regarding the claimed MRI being available through OHIP. She reiterated that pursuant to section 47(2), the insurer was not required to pay for the MRI because it was reasonable available through OHIP.

H.O. v. Aviva General Insurance (19-002362)

The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment as a result of the accident. In particular, he challenged the Tribunal’s conclusion regarding a 40 percent WPI for cauda equina-like syndrome, and argued that it should have applied. He argued that the Tribunal did not allow procedural fairness when it limited his expert’s answers on re-examination, and that the Tribunal erred in law regarding its conclusions. Vice Chair Flude rejected the reconsideration. In terms of the re-examination, he held that the claimant was improperly attempting to split its case by asking questions about matters that were not covered in direct examination. The claimant was obligated to adduce all evidence he intended to rely upon in the examination in chief. Additionally, the claimant’s expert was not entitled to expound upon answers in cross-examination where such answers were not responsive to the cross-examination. Regarding the alleged legal error, Vice Chair Flude concluded that his findings of fact and resulting legal conclusions were sound and based on the medical evidence before the Tribunal. He noted that neither the claimant’s expert nor the insurer’s expert found significant loss of bilateral function in the lower extremities. The request for reconsideration was dismissed.

T.H. v. Allstate Insurance Company of Canada (19-004567)

The insurer sought reconsideration of the Tribunal’s decision to award two treatment plans. The main argument for reconsideration was that the Tribunal considered an affidavit from the claimant that the insurer did not have an opportunity to cross-examine the claimant on. Adjudicator Paluch granted the reconsideration, holding that the Tribunal violated the rules of procedural fairness. The Tribunal had erred in considering the affidavit when it had been agreed by the claimant and the insurer prior to the written hearing, that the affidavit would not be part of the evidence before the Tribunal. The adjudicator had mistakenly believed that the insurer was consenting to the inclusion of the affidavit and that the insurer had waived its right to cross-examine the claimant on it

Gomes v. Aviva General Insurance (19-005653)

The claimant applied to the LAT disputing 10 medical benefits. The claimant and her legal representative failed to attend two case conferences, and the legal representative subsequently removed himself from the record. The LAT issued a Notice of Dismissal to the claimant, and the parties were advised to make written submissions on the Tribunal’s intention to dismiss the claimant’s appeal without a hearing. The claimant failed to make submissions on the issue, and the insurer filed a formal Notice of Motion to have the matter dismissed. The Vice Chair issued an order dismissing the appeal as abandoned. Six months later, the claimant submitted a second LAT application with a new legal representative disputing 5 medical benefits, 4 of which were previously disputed in the first LAT application. At the case conference, the insurer raised a preliminary issue requesting to have the duplicate claims in the second LAT application barred as having already been dismissed. Adjudicator Msosa agreed, and found that the claimant was precluded from reopening an application on issues that were previously dismissed as abandoned by the LAT, as to do so would constitute an abuse of process.

Jones v. Aviva Insurance Canada (19-013768)

The insurer requested reconsideration of a preliminary issue hearing in which the Tribunal found that the claimant’s application for a non-earner benefit was not barred pursuant to section 56 of the SABS. Vice Chair McGee dismissed the insurer’s request for reconsideration, on the basis that Rule 18 of the LAT Rules provides that the Tribunal will only reconsider a decision that finally disposes of an appeal. Vice Chair McGee noted that the preliminary issue decision was interlocutory in nature, and held that the Tribunal cannot grant reconsideration of an interlocutory order.

Nash v. Aviva General Insurance Company (19-010799)

The claimant sought entitlement to IRBs. The insurer brought a preliminary motion to strike evidence found in the claimant’s document brief, arguing that the evidence was hearsay of unproven allegations and irrelevant to the matters to be determined at the hearing. Adjudicator Farlam dismissed the insurer’s motion, stating that evidence is rarely excluded prior to a hearing by the Tribunal. Having heard no evidence from either the claimant or the witnesses, the Adjudicator was unable to determine whether the evidence would be relevant. With respect to IRBs, the adjudicator found that there was insufficient medical evidence to establish that the claimant suffered a substantial inability to complete the essential tasks of employment. There was no documentary evidence from either of the claimant’s pre-accident employers, post-accident employers, or the claimant’s union to suggest that he was substantially unable to perform the essential tasks of his employment, that he was let go for that reason, or that he resigned for that reason. The claim for IRBs was dismissed.

Rattan v. Aviva Insurance Company (19-006304)

The claimant applied to the LAT disputing his entitlement to three medical benefits and interest. The insurer argued that the doctrine of res judicata prevented the claimant from re-litigating his entitlement to two of the disputed benefits, which the LAT had dismissed in a previous decision. Adjudicator Grant agreed with the insurer that res judicata applied as entitlement to the two disputed treatment plans had been adjudicated on the merits and the claimant was attempting to re-litigate a final decision of the LAT. With respect to the third medical benefit, Adjudicator Grant dismissed the claim noting that he preferred the evidence of the IE orthopaedic surgeon to that of the claimant’s family physician with respect to whether further treatment was reasonable and necessary. Adjudicator Grant held that the family physician’s diagnosis was based solely on the claimant’s subjective reports whereas the IE orthopaedic surgeon completed a thorough physical examination and his objective findings were that the claimant did not suffer an impairment warranting further treatment.