Category: LAT Rules

Applicant v. Aviva Insurance (17-005318)

The claimant sought an adjournment of the hearing because the insurer’s IE assessor was unavailable. The insurer opposed the adjournment. Adjudicator Makhamra granted the adjournment, reasoning that the claimant was entitled to cross examine the IE assessor as part of her case.

B.B. v. Intact Insurance (17-005966)

This was a motion to adjourn an in-person hearing, heard via teleconference. The parties resolved the issues in dispute after commencement of the motion.

K.B. v. Aviva Insurance Canada (17-006903)

The claimant made a motion to add a request for a special award, seek productions, change the format of the hearing, and to add witnesses to the hearing. Vice Chair Hunter ordered a Case Conference resumption to deal with the requests, and also ordered that an in-person hearing be set.

T.H. v. The Personal Insurance Company (17-000121)

The insurer sought to rely on section 38(2) of the Schedule as a defence, asserting that the claimant incurred the expense of an assessment in dispute prior to submitting the OCF-18 to the insurer for approval. The claimant brought a motion for a declaration precluding the insurer from relying on the defence for a number of reasons: the insurer accepted the OCF-18 and scheduled IEs to assess its reasonableness and necessity; section 38 requires “all other reasons” to be provided in the denial; the denial of the OCF-18 was only based on the MIG; the issue was not raised by the insurer at FSCO before the matter was transferred to the LAT, in its response, at the case conference, or at any other time prior to written submissions being filed. Adjudicator Daoud denied the claimant’s motion, finding that a defence may be raised at any time within the proceeding as long as there is no prejudice caused to the claimant and the claimant has the opportunity to respond to it.

Applicant v. Aviva Insurance (17-006160)

The claimant sought entitlement to various medical benefits, a special award, and interest. The claimant raised a procedural issue, and asked the Tribunal to disregard attachments appended to the insurer’s written submissions, as they had not been transmitted properly via facsimile to the claimant; the attachments had been provided via mail several days later. Adjudicator Mazerolle denied the claimant’s request, as the potential prejudice to the insurer in refusing to consider the documents outweighed the effect of any delay in the claimant receiving the documents. Upon reviewing the medical documentation available, Adjudicator Mazerolle concluded that the claimant was entitled to the benefits in dispute, as they were reasonable and necessary, and to interest. However, Adjudicator Mazerolle held that the claimant was not entitled to a special award.

F.A. v. Aviva General Insurance (17-006302)

Seven days prior to an in-person hearing, the claimant brought a motion requesting an Order to add a special award to the issues in dispute and an Order for leave to examine the insurer’s claims adjuster. Adjudicator Maedel granted both requests.

Applicant v. Primmum Insurance Company (18-000727)

The claimant’s son sought an order appointing him as administrator of the estate and requested that the matter continue with him acting as administrator. Adjudicator Hunter ruled that the Tribunal did not have jurisdiction to appoint an administrator. She ruled that the son could represent the estate if he obtained the consent of all beneficiaries to the estate to act as such.

Applicant v. Aviva Insurance (16-004312)

The claimant disputed the insurer’s termination of income replacement benefits eight months after the accident. Adjudicator Paluch held the claimant was entitled to receive IRBs from the date of termination to the date of the decision and ongoing. The claimant’s medical evidence with respect to her chronic pain satisfied the arbitrator on a balance of probabilities that she was substantially unable to perform the essential tasks of her employment as a general labourer. There were a number of procedural issues addressed. Adjudicator Paluch denied the insurer’s motion to admit surveillance evidence and add an investigator as a witness on the basis that the evidence and witness requests were not delivered in accordance with an earlier Tribunal Order. The claimant’s request to exclude three expert reports for lack of opportunity to cross examine them was declined on the basis that an earlier Tribunal Order specifically allowed for all expert evidence to be provided by reports. An insurer’s addendum report was not permitted to be admitted into evidence because it was served after the deadline provided for in an earlier Tribunal Order.

Tsalikis v. Wawanesa Mutual Insurance Company (2018 ONSC 1581)

The claimant had been denied benefits above the MIG limits and further IRBs. The Tribunal dismissed her application based on the medical evidence and based on a two day teleconference hearing. The claimant argued that a teleconference hearing was a breach of procedural fairness; that she was not aware the MIG would be addressed in the hearing; that the Tribunal failed to evaluate the medical evidence properly; and that the Tribunal violated the rule in Browne v. Dunn regarding the credibility of one of the claimant’s assessors. The Court declined to overturn the Tribunal’s decision and dismissed all of the grounds referred to by the claimant. The Court held that the claimant failed to request an audio recording of the hearing (which is required within 14 days of the hearing), and that without such evidence, the Court could not determine what transpired at the hearing. The Court held that the claimant should have known the MIG was in dispute by reason of her arguments seeking benefits above the MIG limits. The Court held that the Tribunal was entitled to rely upon the medical evidence it had before it, and to assign weight to different opinions as it saw fit. Finally, the Court noted that the rule in Browne v. Dunn did not apply to the Tribunal, and that even if it did, the parties could have addressed the issues with one doctor’s credibility in their written submissions.

Applicant v. Aviva Insurance Canada (17-003824)

The insurer requested an adjournment of the hearing in order to obtain the claimant’s ODSP file, which had not yet been provided by ODSP. Vice Chair Hunter granted the adjournment.