This is a reconsideration decision. The claimant had a written hearing submission deadline of October 19, 2022, but did not file submissions until November 10, which was eight days after the respondent filed a Notice of Motion for an order dismissing the application as abandoned. The claimant requested an adjournment. The motion adjudicator denied the request for adjournment and dismissed the application. The request for reconsideration was denied.
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.
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.
The claimant sought a determination that she sustained a catastrophic impairment as a result of the accident. Vice Chair Moore held that the claimant did not suffer a catastrophic impairment under Criterion 7 or Criterion 8. Vice Chair Moore found the insurer’s WPI ratings more persuasive. In particular, the Vice Chair preferred the position of the insurer’s assessors that there needed to be a specific accident-related diagnosis to justify an impairment rating, rather than simply reports of symptoms. Vice Chair Moore was critical of the claimant’s assessors, who appeared to apply WPI ratings in excess of diagnosed accident-related injuries and which were not in accordance with the AMA Guides. Vice Chair Moore found a total of 6 percent WPI for physical impairment, which was too low to combine with psychological impairment to exceed 55 percent WPI. In terms of Criterion 8, Vice Chair Moore found that at least two domains (activities of daily living and concentration, persistence, and pace) did not meet a Class 4 Marked Impairment, and as such, the claimant could not qualify for a catastrophic impairment under Criterion 8. As a procedural preliminary issue, Vice Chair Moore excluded the insurer’s supplementary document brief containing surveillance because it was served on the first day of the hearing. Although the surveillance had been provided during settlement discussions, the Tribunal found that failure to include the surveillance in the original document brief meant that the claimant was not expecting to comment and rebut the findings therein.
The claimant applied to the LAT seeking entitlement to NEBs and interest. During the written hearing, the claimant sought to add a claim for a special award. The Co-operators sought to strike 2 pages of the claimant’s submissions as they were over the 10 page limit ordered at the Case Conference. Furthermore, they sought to have the claim for a special award dismissed. The insurer argued that the claimant submitted pleadings that were 12 pages in length, which was 2 pages over the limit ordered. They relied on A.Y. v. Aviva and F.H. v. Certas Direct Insurance Company, which established that pages submitted beyond the ordered limit in a written hearing were unable to be considered. The insurer further argued that, as per Selby v. Security National, the issue must be added either on consent, or via a motion, neither if which occurred. Vice-Chair Ciriello ruled that the claimant’s submissions beyond the 10 pages ordered were inadmissible, and noted that the claimant had the option to “seek permission” from The Tribunal for additional pages, which they failed to do. With regards to the special award, Vice-Chair Cirello preferred the claimant’s case law (16-004312 v. Aviva Insurance Canada) and upheld that a claim for a special award may be added at any point during the dispute, even during a hearing, as it promoted efficiency. The claimant was not found entitled to NEBs based on the medical evidence and the claim was dismissed.
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.
The claimant disputed entitlement to NEBs, ACBs, and a special award. As a preliminary motion, the insurer sought to exclude the claimant’s CAT reports because they were not disclosed in accordance with the LAT order timelines. Adjudicator Prowse excluded the CAT reports because the documents were not exchanged in accordance with the order, and because CAT was not an issue in dispute at the hearing. As to the disputed benefits, Adjudicator Prowse held that the claimant did not meet the burden of proving entitlement.
The claimant had previously filed a LAT Application in 2018 disputing IRBs and several treatment plans. The Application proceeded to a hearing and was dismissed. The claimant did not request a reconsideration of the decision nor did she pursue an appeal. On July 9, 2021, the claimant filed a second LAT Application disputing IRBs, the MIG and several treatment plans. The insurer argued that the claimant’s application for benefits was barred due to res judicata based on her prior LAT Application regarding the same accident, which was previously dismissed at a hearing. The insurer noted that while the disputed treatment plans for the current Application had different dates on them, they were for the exact same services that were addressed in the prior Decision. The insurer argued that res judicata would prevent the claimant from bringing multiple claims for the same relief simply by changing the grounds (or date) on which the claim was made. The claimant argued that the treatments plans were in fact new issues, and that medical evidence showed she required updated treatments as she had yet to reach maximal medical recovery and required additional treatment. Adjudicator Kaur opined that res judicata had been met. A review of the medical records indicated no additional evidence that would warrant avoiding the application of res judicata, in fact, the new records indicated that the claimant had reached maximal medical recovery and that no further treatment was warranted. Adjudicator Kaur dismissed the Application.
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.
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.
150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP Disclaimer | Privacy Policy | Statement of Principles
Subscribe to get TGP’s case summaries straight to your inbox
Subscribe to get TGP’s case summaries straight to your inbox
150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP