Category: LAT Rules

Hassan v. Aviva Insurance Company of Canada (21-000811)

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.

Rosoli v. Aviva General Insurance (21-009076)

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.

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.

Harland-Bettany v Aviva Insurance Canada (19-005099)

A preliminary issue hearing was held to determined whether an incident that occurred on February 5, 2017 was an accident as defined by s. 3(1) of the SABS. Adjudicator Mazerolle found for the claimant, highlighting that the insurer failed to raise the preliminary issue in a timely fashion and that regardless, the incident met the definition of an accident. There is no provision in the SABS outlining a prescribed time period for when an insurer can raise concerns about whether an incident is an accident, but s. 32 does define the process, including timings, that must be followed in an application for benefits. In this case there was no indication as to what changed the insurer’s understanding of the incident, and thus no explanation for the delay in bringing the preliminary issue before the Tribunal. On February 5, 2017, the claimant parked her vehicle and as she was in the process of exiting, she slipped and fell sustaining injuries. Both parties agree that the incident involved ordinary and well-known activities to which automobiles are put. The disagreement arose from whether this activity was the direct cause of the claimant’s impairments. In his analysis, Adjudicator Mazerolle determined that use of the dominant feature test would be the most appropriate and that both ice and the exiting of the vehicle were equally dominant features of this incident. As both were considered to be equal, the LAT concluded that the incident must be considered an accident within the meaning of the SABS.