Category: LAT Rules

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.

K.A. v. Aviva General Insurance Company (19-002676)

The claimant sought entitlement to IRBs. The insurer argued that the claimant had failed to attend IE, and failed to comply with section 33 requests. Adjudicator Johal held that the claimant was barred from proceeding due to the IE non-attendance, reasoning that the IEs were reasonably required for determining entitlement to post-104 week IRBs even though IRBs had been terminated prior to the 104 week mark, and that the notices provided the requisite information. Adjudicator Johal rejected the insurer’s section 33 defence because section 33 did not prevent the Tribunal from adjudicating the claim. The consequences of section 33 non-compliance ultimately go to entitlement to a disputed benefit.

W.E. v. Aviva Insurance Company (19-003285 and 19-009617)

This decision relates to two LAT files. The issues in dispute were whether the claimant’s initial LAT application should be dismissed as abandoned for the claimant’s failure to make written hearing submissions pursuant to a LAT Order, whether the claimant was entitled to ongoing IRBs, and whether the insurer was entitled to a repayment of IRBs. The hearing was heard in writing. The claimant made no submissions. Adjudicator Norris found that the claimant’s initial LAT application was dismissed as abandoned, and the insurer was entitled to a repayment of IRBs made as a result of error.

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

The claimant sought entitlement to ongoing IRBs and two medical benefits. The insurer argued that the claimant was not credible, and that her impairments were caused by other health issues and second motor vehicle accident. Adjudicator Neilson found the claimant to be a poor historian who consistently exaggerated her complaints. She concluded that the claimant did not suffer a substantial inability to engage in her pre-accident employment as a result of the accident, and that her reported impairments were caused by things and events other than the subject accident (she also did not meet the complete inability test). The claim for psychological treatment was dismissed; further chiropractic treatment was awarded based on it providing pain relief at the time it was proposed. Adjudicator Neilson also dealt with a number of preliminary motions, in which she ordered: the insurer’s witnesses would not be excluded for failure to produce the full IE file; the claimant’s treating OT and psychologist could not testify as experts, but rather as treating practitioners; that the claimant could call the adjuster as a witness; and that the claimant could refer to and rely upon psychological testing data that was served late.

R.F. v. Pafco Insurance (17-008708)

On the eve of the hearing, the claimant brought various motions to add the insurer’s counsel as a witness, for production of records from the IE facilities, to hold the insurer’s counsel in contempt, and to adjourn the hearing. The motions all related to the claimant’s counsel’s position that the IE assessors had violated PIPEDA by not providing records or providing incomplete records. Vice Chair Marzinotto dismissed the motions, and noted that the claimant did have some of the requested records in her possession, that the motion was not timely as it was brought only two weeks before the hearing, that the insurer’s counsel had not acted improperly (and had, in fact, attempted to assist in obtaining the requested records), and that the insurer’s counsel was not a necessary witness at the hearing. Vice Chair Marzinotto also noted that any allegations of PIPEDA violations could not be addressed by the LAT. The hearing was adjourned as a result of the claimant’s late motion.

J.R. v. Aviva General Insurance Company (19-007539)

The insurer filed a request for reconsideration of a motion decision extending the time for exchange of documents and the production of log notes. Pursuant to the amended rule 18.1 of the Common Rules of Practice and Procedure, Associate Chair Jovanovic dismissed the request for reconsideration as it was in regard to a decision that did not finally dispose of the appeal.