Category: LAT Rules

Tamayo v. Licence Appeal Tribunal (2023 ONSC 1692)

The claimant appealed the Tribunal’s decision denying an adjournment of a scheduled hearing. The Court dismissed the appeal, holding that the denial of the adjournment was an interlocutory step from which no appeal was permitted. The Court also declined to grant a stay of the proceedings.

Lengyel v. The Licence Appeal Tribunal (2023 ONSC 1623)

The claimant appealed and sought judicial review of the Tribunal’s decision to dismiss her application due to non-attendance at an IE. The Court dismissed the appeal and judicial review, holding that the Tribunal properly considered the SABS and the materials before it, and the result was a reasonable outcome available to the Tribunal under the SABS. The claimant failed to prove that she was not afforded procedural fairness in the hearing.

Amadiegwu v. Aviva General Insurance Company (2023 ONSC 1256)

The claimant appealed the Tribunal’s decision dismissing her claim for IRBs. The Court dismissed the appeal holding that there was no extricable question of law. The Court also rejected the arguments that the Tribunal process lacked procedural fairness or that the Tribunal did not apply the correct test for causation.

Nash v. Aviva General Insurance Company (2022 ONSC 6723)

The claimant appealed the Tribunal’s decision that he was not entitled to IRBs. The claimant argued that the Tribunal incorrectly applied the SABS, misinterpreted the IRB sections, misapprehended the evidence, and breached natural justice. The Court dismissed the appeal, holding that there were no errors of law committed by the Tribunal. The Tribunal’s decision to deny IRBs flowed from the findings of fact made by the adjudicator. The findings of fact were permissible in light of the evidence before the Tribunal, and the Court would not reweigh the evidence. The application of the SABS and the IRB test to the findings of fact was an issue of mixed fact and law, which was not appealable. The claimant failed to raise any issues of law upon which a reversible error had been made.

Allo v. Licence Appeal Tribunal (2022 ONSC 6368)

The claimant appealed the Tribunal’s decision denying an adjournment of a scheduled hearing. The Court dismissed the appeal, holding that the denial of the adjournment was an interlocutory step from which no appeal was permitted. The Court allowed the claimant to convert the appeal to a judicial review if proper submissions were made within 10 days, but noted that a judicial review may also be premature.

Franche v. Wawanesa Mutual Insurance Company (21-000723)

The claimant was involved in a motor vehicle accident in 2017. She applied to the LAT seeking catastrophic impairment determination under Criteria 8 and entitlement to numerous medical benefits. Adjudicator Shapiro excluded the report and testimony of a s. 44 assessor for failure to comply with an order to produce raw testing data. Rather than excluding testimony of assessors who did not provide expert duty forms, Adjudicator Shapiro considered the lack of expert duty form when weighing their testimony. The “but for” test was determined to be the appropriate test for determining causation. Adjudicator Shapiro found that the claimant did not have Class 4 impairments in three or more spheres of function and therefore did not meet the CAT definition under Criteria 8. The analysis focused on function in the sphere of Activities of Daily Living. Adjudicator Shapiro found that the claimant did not have a Class 4 impairment in this sphere, noting the claimant was independent in self-care, there was a gap between her perception and actual performance, and there were discrepancies in her testimony that resulted in less weight being given to her testimony and self-reporting (as well as to the expert opinion which was heavily influenced by her self-reporting). As the claimant had exhausted her non-CAT limits for medical benefits, she was not entitled to any of the medical benefits in dispute.

C.P. v. Certas Home and Auto Insurance Company (2022 ONSC 5978)

The claimant appealed the Tribunal’s decision dismissing his claim for further IRBs, arguing that the Tribunal erred in allowing IE reports to be admitted without the Expert’s Duty form being completed, in applying the IRB test, and by failing to provide procedural fairness or natural justice. The Court dismissed the appeal. The Court held that the Tribunal had the discretion under the Rules to admit the IE reports without the expert’s form, and that the claimant had ample notice of the insurer’s reliance upon the IE reports. The Court also wrote that the Tribunal’s treatment of the IRB claim was entirely fair and supported by the SABS and the evidence before the adjudicator. Finally, the Tribunal found no denial of procedural fairness or natural justice. The claim was processed and managed within the parameters of the LAT Rules, and the claimant was made well aware of the insurer’s position and evidence it was relying upon.

Phan v. Security National Insurance Company (20-011925)

The claimant brought an initial application where the LAT held that her impairments were predominantly minor, that she was subject to the MIG, and denied her claim for six treatment plans because her MIG limits were exhausted. The claimant brought a subsequent application seeking entitlement to nine treatment plans and assessments. The insurer brought a preliminary motion to dismiss the claim on the grounds of res judicata. Vice Chair Flude found that the claimant failed to bring forward evidence of recent deterioration in her condition that resulted in her impairments no longer being the result of predominantly minor injuries. The only new evidence that was provided by the claimant involved complaints of back pain, but which did not tie that complaint to impairments sustained in the accident. Vice Chair Flude refused to consider imaging reports relied on by the claimant during oral submissions, as these reports were previously available for disclosure in the first hearing and no reason was provided as to why it was not disclosed at that time. As such, Vice Chair Flude held that res judicata applied to bar her claim.

Jevco Insurance Company v. Hang (2022 ONSC 4961)

The insurer brought an urgent motion for a stay of the scheduled hearing due to counsel’s unavailability to attend the hearing. Justice London-Weinstein applied the three-prong test from RJR MacDonald v. Canada (Attorney General) and concluded that a stay was not warranted. The insurer demonstrated that there was a serious issue to be tried, and that a party ought to have the right to select counsel of its choice. Counsel’s unavailability for a hearing was a factor in favour of the insurer. However, Justice London-Weinstein was not satisfied that there was irreparable harm to the insurer if the stay was not granted, but noted that the hearing adjudicator retained the right to adjourn the hearing if the appearance of fairness had been compromised. Justice London-Weinstein also noted that the insurer and its counsel did not provide any evidence that other lawyers at the firm were unable to step in and argue the case. Finally, the balance of convenience favoured the claimant, as the matter had been filed more than 500 days prior, and the claimant was going without benefits. The public also had an interest in the courts and tribunals functioning in an orderly manner.

Vaillancourt v. Intact Insurance Company (19-009063)

This is a reconsideration decision. In the initial preliminary hearing decision, the LAT found that that the exclusion in s. 31(1)(a)(i) of the SABS did not apply in this matter. Pursuant to 31(1)(a)(i), an insurer is not required to pay IRBs, NEBs, or a benefit under ss. 21, 22, or 23 in respect of a person who was the driver of an automobile at the time of the accident if the driver knew or ought reasonable to have known that they were operating the automobile while it was not insured. The insurer submitted that the hearing adjudicator made an error in law by applying an exclusively subjective test to the language of s. 31(1)(a)(i). The insurer argued that the correct test is the “contextual objective” test articulated in Batoor v. State Farm. Vice-Chair Logan granted the request for reconsideration and found that the claim for accident benefits was subject to the exclusion in s. 31(1)(a)(i) of the SABS and that a “contextual objective” test applied.