Category: LAT Rules

Luluquisin v. Aviva Insurance Co. of Canada (2024 ONSC 5369)

The claimant appealed the Tribunal’s dismissal of his claim for attendant care benefits. He argued that the Tribunal failed to consider all the evidence and gave insufficient reasons. The Court agreed that the Tribunal failed to provide sufficient reasons. The claimant had a catastrophic impairment, and the Tribunal summarily dismissed the claim for ACBs without engaging in the evidence presented by the claimant. The Tribunal ought to have engaged in the statutory scheme in greater detail with reference to the relevant evidence. The Court remitted the matter back to the Tribunal for a new hearing.

Fernandez v. Commonwell Mutual Insurance (2024 ONSC 5180)

The claimant appealed the Tribunal’s refusal to grant an adjournment of her hearing for a catastrophic impairment, and ultimately finding that she did not suffer a catastrophic impairment. The Court held that the Tribunal’s refusal to grant an adjournment breached fairness concerns, and ordered a new hearing. The Court explained that the claimant had limited proficiency in English, the issues were complex, and the claimant quickly retained new counsel after her previous counsel got off the record.

Hamad v. Dominion of Canada General Insurance Company (2024 ONSC 3324)

The claimant appealed the Tribunal’s decision that he did not suffer a catastrophic impairment as a result of the accident. The Court dismissed the appeal, holding that the claimant did not raise any legal errors on the part of the Tribunal. The Tribunal’s factual findings were supported by the evidence presented by the parties, and the Tribunal was entitled to make assessments of the witnesses credibility. Additionally, the Tribunal’s reliance on medical records by a doctor not present at the hearing was permitted, as hearsay evidence is permissible in hearings before the Tribunal.

Shahin v. Intact Insurance Company (2024 ONSC 2059)

The claimant appealed the Tribunal’s conclusion that she did not suffer a catastrophic impairment. She argued that she was denied procedural fairness due to: (i) failure by the Tribunal to make the insurer’s expert re-attend for cross-examination, (ii) by the Tribunal deciding causation when it was not argued by the parties; and (iii) by the Tribunal’s reference to documents that were not discussed by the parties or witnesses. The Court agreed that the Tribunal breached procedural fairness due to each of the three argued reasons. The Court remanded the dispute to the Tribunal for a new hearing.

Rao v. Wawanesa Mutual Insurance Company (2024 ONSC 39)

The claimant appealed the Tribunal’s decision that she did not suffer a catastrophic impairment. The claimant had sought an extension of time for reconsideration, which was denied by the Tribunal. The denial of the reconsideration extension lead to the claimant appealing to the Divisional Court more than four months after the original decision of the Tribunal. The insurer argued that the appeal ought to be dismissed for delay. The Court granted the claimant an extension of time to file the Notice of Appeal and ordered the appeal hearing to be expedited. The Court noted that the insurer did not demonstrate any prejudice arising from the late Notice of Appeal, and the claimant had demonstrated an intention to appeal and had provided explanation for the delay.

Khan v. Allstate Insurance Company (2023 ONSC 3652)

The claimant appealed the LAT’s decision that he did not suffer a catastrophic impairment. The claimant argued that procedural fairness was denied because he did not know the insurer would argue that an intervening event was the cause of his impairments, and argued that the LAT applied the wrong causation test. The LAT dismissed the appeal. Regarding procedural fairness, the Court held that the claimant’s failure to object to the insurer’s arguments at any point during the original hearing prevented him from advancing this argument on appeal. Failure to object deprived the Court of the evidence necessary to establish how the LAT would have dealt with the concern. Regarding causation, the Court held the LAT applied the proper “but for” test. The material contribution test is only applicable where there are multiple tortfeasors and there is risk of tortfeasors escaping liability by pointing the finger at one another. That was not the case in this dispute where the claimant suffered a medical event weeks after the accident.

Aviva Insurance Canada v. Harland-Bettany (2023 ONSC 3395)

The insurer appealed the Tribunal’s decision that the claimant’s slip and fall on ice met the definition of accident. The claimant’s application included other disputes relating to accident benefits claims that were not yet decided. The Court held that the insurer’s appeal was premature as the accident definition decision was interlocutory. The Court wrote that it would have jurisdiction to hear the insurer’s appeal of that issue once the Tribunal had determined all issues in dispute.

Soldatovas v. Wawanesa Mutual Insurance Company (2023 ONSC 3440)

The claimant appealed the Tribunal’s denial of IRBs and a special award, arguing that the decision lacked procedural fairness, reasonableness, and did not consider key evidence. The Court dismissed the appeal, holding that the Tribunal provided the claimant with an opportunity to present his case, and holding that the Tribunal was not required to cite every document submitted by the claimant in its reasons.

Sahadeo v. Pafco Insurance Company (2023 ONSC 2542)

The claimant appealed the LAT’s dismissal of his catastrophic impairment dispute, arguing that the Tribunal’s supplemental reasons contained in the reconsideration decision violated the principles of fairness. The Court dismissed the appeal, holding that the SPPA gave the Tribunal the power to make rules to reconsider its own decision, and that the reconsideration process gave the Tribunal the ability to dismiss, confirm, vary, or cancel any part of its original decision or order. The Tribunal’s procedure in the subject matter followed the reconsideration process contemplated by the SPPA and the Tribunal’s own rules. The Tribunal acted entirely within its own jurisdiction on the reconsideration.

Di Giulio v. Aviva General Insurance Company (2023 ONSC 2426)

The claimant sought a stay from Divisional Court of the LAT’s decision that the dispute would proceed in writing rather than orally. The Court rejected the stay, holding that there was not a serious issue, there was no irreparable harm if the stay was not granted, and the balance of convenience did not favour the claimant given the prematurity of the decision. The Court wrote that if, at the end of the Tribunal’s process, the claimant wished to dispute the fairness of the hearing, he could do so at that time.