Category: LAT Rules

M.J. v. Economical Mutual Insurance Company (18-005523)

The claimant requested productions from SOMA Medical Assessment. SOMA was a third party who had concluded in its s. 44 assessments that the claimant’s injuries were not catastrophic. In the Case Conference for the matter, the adjudicator released an Order dated November 6, 2018 requiring the insurer to produce SOMA’s complete file as it pertained to the claimant. The insurer then requested these records from SOMA, who refused to produce the documents. In their letter to the insurer dated February 1, 2019, SOMA stated that the Case Conference Order required the insurer, and not SOMA, to produce these documents, and moreover, that the LAT could not order a third party to produce the documents. The claimant then brought a Motion for an Order to compel SOMA to produce their file as a third party. In her Order dated May 7, 2019, Adjudicator Helt acknowledged that the LAT did not have the power to order productions from a third party under the Tribunal’s Rules. However, Adjudicator Helt noted that the present matter involved a CAT application which required complex examinations of medical documents. Relying on obiter comments from the ONCA’s decision Ontario (Human Rights Commission) v. Dofasco Inc., and the decisions reached in two LAT cases, 17-00777 v. Aviva General Insurance and 17-007223 v. Wawanesa Mutual Insurance Company, Adjudicator Helt reasoned that the production of documents in advance of a hearing would prevent adjournments and was aligned with the SPPA’s scheme to ensure just, expeditious, and cost-effective determination of each matter on its merits. She relied on section 2 of the SPPA to order SOMA to produce its file to the Claimant by May 24, 2019.

Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunal) (2019 ONCA 518)

The Tribunal and the insurer appealed the Divisional Court’s decision that there was a reasonable apprehension of lack of adjudicative independence. The Court of Appeal dismissed the appeal and held that the Divisional Court had correctly applied the case law regarding adjudicative independence. The dispute was remitted to the Tribunal for a new hearing on the catastrophic impairment.

L.K.C. v. Unifund Assurance Company (18-004346)

The insurer sought reconsideration of the Tribunal’s order to produce adjusting log notes. Adjudicator Marzinotto dismissed the reconsideration request. She held that the Tribunal did not make a significant error of law, and that the log notes were relevant to the issues in dispute. She also noted that there was no legal requirement that a special award be sought in order for log notes to be relevant to the dispute.

J.L. v. Wawanesa Mutual Insurance Company (18-000766)

The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment under the Glasgow Coma Scale. He argued that the Tribunal should have admitted video evidence of the paramedic administering the GCS. Adjudicator Boyce agreed with the Tribunal that the video had limited probative value and was unlikely to change the result of the hearing. The paramedic attended the hearing and was examined on his GCS measurements. The adjudicator also rejected the claimant’s arguments that the insurer’s expert gave evidence outside of his report (such as addressing inconsistencies within his expertise).

T.K. v. Allstate Insurance (18-007113)

The claimant sought an order for interim benefits pending the LAT hearing. The insurer argued that the LAT did not have jurisdiction to award interim benefits. Adjudicator Letourneau agreed with the insurer and held that he did not have jurisdiction to award interim benefits. When read together, none of the Insurance Act, the Statutory Powers Procedure Act, nor the LAT Act gave the Tribunal the power to make an interim award. Instead, the adjudicator suggested that an expedited hearing be scheduled.

F.C. v. Intact Insurance Company (18-005079)

The claimant had applied to the Tribunal for accident benefits, and commenced an action for property damage in the Superior Court. The insurer alleged that the claimant had committed material misrepresentations, and sought a stay of the LAT proceedings until the Superior Court decision was rendered or a preliminary hearing addressing the material misrepresentations. The Tribunal rejected both requests; the insurer sought reconsideration. Adjudicator Lester held that the Tribunal did not act outside its jurisdiction or violate the rules of natural justice or procedural fairness, and noted that the claimant would be prejudiced by a stay of the LAT application.

P.K. v. Certas Direct Insurance Company (18-003184)

The claimant twice adjourned a hearing, and then failed to attend the rescheduled hearing. The insurer sought a dismissal of the application. Adjudicator Parish granted the dismissal on the basis the claimant had abandoned the claim.

C.S. v. Certas Home and Auto Insurance (18-003463)

The claimant was injured in an icy parking lot. She was a few feet from her vehicle when she slipped and fell. She applied for accident benefits. The insurer denied coverage on the basis that the incident was not an “accident” under the SABS. Adjudicator Ferguson concluded that the facts of loss were not an “accident.” He reasoned that neither the vehicle nor any action associated with use of the vehicle was a factor in the claimant’s injuries. The chain of causation was broken. Adjudicator Ferguson also held that the insurer was not estopped from arguing that an accident had occurred, despite initially paying the claimant benefits for three years.

S.M. v. Aviva General Insurance Company (17-008818)

Vice-Chair Helt dismissed the insurer’s request for reconsideration. The insurer alleged that the LAT violated the rules of natural justice and procedural fairness and made significant errors of law. The parties had agreed upon a document exchange deadline. The claimant brought a motion following the deadline, requesting an opportunity to file an affidavit. The LAT allowed the claimant to file the affidavit, but limited the scope of the affidavit to an orthopaedic assessment. The insurer was not permitted to cross-examine the claimant on her affidavit. Vice-Chair Helt held that any prejudice resulting to the insurer was remedied with the opportunity to respond to the affidavit. The Vice-Chair also held that there are instances where additional evidence may be allowed to be filed after deadlines if it is in the interest of ensuring there is a complete record before the adjudicator. In this matter, the LAT allowed the additional affidavit evidence, but limited it in scope and provided the insurer an opportunity to respond.

S.R. v. Aviva Insurance Company (17-004556)

The claimant sought reconsideration of the Tribunal’s decision that the IRB claim was not barred by the limitation period. The request was made more than 12 months after the Tribunal’s decision. Vice Chair Batty dismissed the request, holding that it was made outside of the required time period, and that the LAT Rules did not favour extending the 21 day deadline.