Category: LAT Rules

K.R. v. Gore Mutual Insurance Company (17-005722)

This is a preliminary hearing decision on whether the insurer could complete s. 44 addendum reports in a hearing regarding CAT impairment determination. The claimant and the insurer had submitted medicolegal assessments on CAT determination. In addition, the claimant submitted addendum reports which affirmed her assessors’ original positions, following a review of the insurer’s reports. The insurer requested that its assessors complete addendum reports responding to the claimant’s addendum reports on the basis that the claimant’s addendum reports contained new opinion and comment. The insurer’s assessors declined to complete addendum reports without the claimant’s consent or an order from the LAT. The claimant did not consent to the addendum reports, which did not require her participation. The insurer brought a motion to the LAT to determine whether it had the right to have its assessors prepare addendum reports without the claimant’s consent. Vice Chair Flude dismissed the insurer’s motion on the basis that the claimant’s addendum reports did not contain any new opinion or comment. Vice Chair Flude rejected the insurer’s submission that new s. 44 notices of examination are not required in order for an insurer to complete s. 44 addendum reports/paper reviews, which do not require new physical examinations. Vice Chair Flude indicated that if the claimant’s addendum reports had raised new issues, procedural fairness would dictate that the insurer be permitted to have its experts prepare rebuttal reports.

Applicant v. Aviva General Insurance (17-005287)

The claimant requested an adjournment of the LAT hearing because two witnesses were not available, and in order to obtain an addendum report from his expert. Adjudicator Makhamra granted the adjournment, noting that the Tribunal preferred to adjudicate claims on a complete evidentiary basis.

A.L. v. The Personal Insurance Company (17-002582)

The Tribunal initially decided that the claimant was precluded from applying to the LAT in light of his non-attendance at multiple insurer examinations. Associate Chair Batty initiated a reconsideration on his own initiative to remedy a breach of procedural fairness in the preliminary issue hearing. In its reasons, the LAT had described how the respondent’s submissions relied upon affidavit evidence which had not been filed. Counsel for the respondent subsequently provided proof that the affidavit in question had been filed. It was not provided to the adjudicator as a result of an administrative error. Associate Chair Batty held that the respondent had been denied procedural fairness and remitted the matter to be reheard on the LAT’s full record.

A.L. v. The Personal Insurance Company (17-002582)

The Tribunal initially decided that the claimant was precluded from applying to the LAT in light of his non-attendance at multiple insurer examinations. Associate Chair Batty initiated a reconsideration on his own initiative to remedy a breach of procedural fairness in the preliminary issue hearing. In its reasons, the LAT had described how the respondent’s submissions relied upon affidavit evidence which had not been filed. Counsel for the respondent subsequently provided proof that the affidavit in question had been filed. It was not provided to the adjudicator as a result of an administrative error. Associate Chair Batty held that the respondent had been denied procedural fairness and remitted the matter to be reheard on the LAT’s full record.

Z.Z. v. Wawanesa Mutual Insurance Company (17-007223)

The insurer brought a motion seeking an order against the claimant’s employer for the full employment file. Adjudicator Makhamra concluded that the LAT had jurisdiction to order a third party to produce records, and ordered the employer to produce the entire employment file. The adjudicator noted that the claimant consented to the order, but that such consent was not necessary for the LAT to issue such an order.

Applicant v. Economical Mutual Insurance Company (17-002867)

The claimant brought a motion to change the format of a preliminary issue hearing from written hearing to proceed via teleconference. Adjudicator Trojek denied the claimant’s motion. Adjudicator Trojek concluded that the claimant did not provide her with adequate reasons to change the format of the preliminary motion hearing.

K.K. v. Unifund Assurance Company (17-003303)

The insurer brought a motion to dismiss the application after the claimant’s failure to submit any written materials. Adjudicator Watt granted the motion and dismissed the application. He reasoned that the claimant’s failure to bring a motion to extend the deadline for submissions after retaining new counsel amounted to an abuse of process, and that the matter should not proceed.

S.T. v. Wawanesa Mutual Insurance Company (17-003874)

The insurer sought production of the settlement documents from an earlier accident the claimant was involved in. Adjudicator Neilson ordered the records produced. She held that it was relevant to the current dispute what the claimant was paid in her earlier claim, and how the benefits were allocated. She noted that there was no evidence that the earlier claim was settled as part of litigation, so no settlement privilege applied. However, even if settlement privilege had applied, she wrote that the public policy against double recovery or overcompensation would require the claimant to produce the settlement disclosure notice.

S.T. v. Economical Insurance Company (16-0003034)

The claimant sought reconsideration of the Tribunal’s decision to deny attendant care and housekeeping benefits. The Tribunal had determined that the two year time limit for the claimant to dispute her entitlement had passed. The claimant filed her request for reconsideration outside of the 21 day period stipulated in the LAT Rules. Executive Chair Lamoureux rejected the reconsideration. She held that the claimant failed to provide acceptable reasons to justify the delay in requesting the reconsideration. She further held that the claimant failed to provide any evidence to suggest that the Tribunal erred in finding that the limitation period applied.

T. T. v. Aviva Insurance Canada (17-002535)

The claimant sought entitlement to a number of medical treatment plans. The insurer denied the treatment and asserted a MIG position. The insurer also tendered surveillance in support of its position, to which the claimant sought to exclude on the basis of bad faith. Adjudicator Avvy Go determined that the surveillance was in contravention of Rule 9.2 and was not served 10 days prior to the hearing. Moreover, a case conference Order stipulated timelines that the insurer was in contravention of without any explanation. Accordingly, the materials were excluded. Additionally, the insurer was ordered to pay costs on the motion to exclude. However, on the substantive merits of the claim, Adjudicator Go determined that the claimant had not tendered compelling evidence to demonstrate that recovery within the MIG was unavailable; as a result, none of the treatment plans were found payable.